Do I need to use a lawyer for probate in Scotland?

The Sheriff Court ‘probate’ or ‘confirmation’ process is open to members of the public to apply themselves. However, there are cases where it might be better to use a lawyer. We explain when you can apply yourself, when you might need to use a lawyer, and how we can help. 

 Important point: you do not need to use the solicitor who made the Will or who is named as an executor.

When you can apply for probate yourself

If there’s a valid Will, you don’t need to use a lawyer for probate.

Regardless of whether there is a will or not, if the estate is worth less than £36,000, then the local court will help you to obtain a Grant of Probate/Confirmation free of charge.

 
Find out how to apply and get a free quote

Example customer case study

Here's the timeline of a case similar to one we help with every day. We do not use real details to protect our customers' privacy.

Situation

John dealing with his late mother’s estate, with a Will. John’s mother simplified her assets before she moved into a care home 3 years ago.

Assets

• £64,000 spread across two bank accounts with RBS
• Personal possessions of sentimental value only

Service purchased

Classic Probate Support Service (with a Will). This service was specifically designed for a straightforward situation like this, where the Grant of Confirmation is only required to show to a financial organisation (this would also be the case if there was a property involved).

Timeline to get probate/confirmation

Week 1

• Monday 3rd April: Date John’s mother died.

Week 2

• Friday 14th April: John notified RBS of the death.
  
  

Week 3

• Wednesday 19th April: John was told he'd need probate so he phoned My Probate Partner and bought the Classic service on the same day.
• Thursday 20th April: John completed his application efficiently using our guidance and submitted his form for checking using our standard 5-working day turnaround.

Week 4

• Thursday 27th April: John received a list of amendments to make to his form and was able to hand it into Falkirk Sheriff Court that afternoon.
• Friday 28th April: The Sheriff Court phoned to confirm the application was successful

Week 5

• Thursday 4th May: John received the probate documents in the post and was able to show them to RBS that afternoon
• Tuesday 9th May: The money was paid into John’s bank account

Outcome

In around 5 weeks after his mother’s death, John was able to close her bank accounts and distribute the money between himself and his two sisters. (Please note: Edinburgh and Glasgow Sheriff Courts will add on around 4-8 weeks to this timeline.)

If there’s no Will and the estate is worth more than £36,000

 If there is no Will  and the estate is worth more than £36,000, then you might need a solicitor for probate. Before you can apply for probate/confirmation, you’ll need:

• to be appointed as the executor-dative via the Sheriff Court (we can help you do this)
• to take out a special insurance bond called a ‘Bond of Caution’ (pronounced ‘Kay-shun’). These are only available to non-solicitors if the estate is worth less than £250,000

The exception to needing a Bond of Caution is if there is a spouse or civil partner of the deceased and the estate falls under all of these thresholds (these are called 'prior rights'):

• the family home, up to a value of £473,000 (that the surviving spouse/civil partner is living in)
• furniture and household items up to a value of £29,000
• all other assets totalling less than £50,000 if the deceased had children, or £89,000 if the deceased did not have children

If you don't need a Bond of Caution, you will still need to be appointed as the executor-dative through the Sheriff Court.

Want help being appointed as the executor-dative? Book a free call

It’s important that executors pay the correct amount of inheritance tax as they may be held personally liable. Whether there is any inheritance tax to pay depends on a few factors. 

If the estate is worth less than £325,000, or the entire estate passes to a spouse, civil partner, or charity then there’s no tax to pay. If the person that died was widowed, and they inherited everything from their spouse’s estate, then the tax-free limit can be doubled to £650,000 by simply ticking a box on the Scottish probate form (C1) .

There is also additional tax relief available if there is a property passing to children or grandchildren, worth up to £350,000. This allowance can take the tax-free limit up to £1mil if there are two deceased parents’ tax allowances to use in full. However, to use this ‘residence’ tax exemption, executors must make a full accounting of the estate to HMRC using the IHT400 form .

If the estate you’re dealing with is over any of these limits, using a probate lawyer could be a good idea to make sure the correct amount of tax is paid, but lawyer-led inheritance tax services can be very expensive (£5000+). That's why we've teamed up with a specialist accountant that offers fixed prices, book a free call to find out more.

Having said that, the inheritance tax forms have good instructions, and HMRC has a helpline and will do any tax calculations for you if you apply yourself. 

There are other situations where we’d recommend using a probate solicitor due to the complexities involved. These would include:

• if anyone is challenging the validity of the Will (but only if they are doing so via a solicitor)
• when the person that died benefitted from any kind of trust, or contributed financially to a trust for someone else’s benefit
• there are very complicated or fractured family relationships
• there is a question over where the person that died lived for tax purposes (their ‘domicile’)
• if the estate is bankrupt (owes more in debt than it has in assets)
  

The confirmation process in Scotland is very poorly designed. The official guidance is ambiguous and missing key components. This means that, although you may feel like you have followed all the instructions, it is almost certain you will be rejected with no explanation of why. 

Furthermore, different Sheriff Courts have different standards, resulting in rejection rates over 95% for personal applications in some places.

This is why we created our Probate Support Service. It has everything you need to prepare and successfully apply for confirmation/probate. Our service provides you with clear, step-by-step instructions written in plain English. We also check your forms for errors before you submit them.

We have helped hundreds of executors to get their applications through every Sheriff Court in Scotland. We have a 100% success rate for all our checked forms and 100% 5-star reviews on Trustpilot .