The Ultimate Guide to Probate in Scotland

In around half of all deaths, you’ll need to get a legal document that gives you the authority to deal with someone’s estate after they die. This is officially called a ‘Grant of Confirmation’ in Scotland, but often referred to as ‘probate’. 

Officially called ‘Confirmation’, short for ‘Confirmation of Executors’, this is a document issued by the Sheriff Court in Scotland. It gives someone the authority to deal with a deceased person’s estate - all their money, property, and other belongings.

Probate can also be used to describe the whole process of dealing with someone’s estate, also known as ‘estate administration’. 

Probate is not mandatory, and is only needed if you need to use it. You should only need it if:

• a company needs it before they’ll let you deal with an account or asset
• there is a property that doesn’t pass automatically to someone else

Not sure if you need probate? Use our free tool to find out in 1-minute.

The Sheriff Court charges a fee based on how much the estate is worth:

• FREE for estates worth less than £50,000
• £282 for estates worth £50,000 - £250,000
• £565 for estates worth more than £250,000

Extra certificates of confirmation for specific assets cost £8 each (these are optional).

If there’s no Will, there is also a £20 fee to be appointed as the executor, and you will require a special type of insurance policy which might cost a few hundred pounds.

Find out more about dealing with an estate without a Will

As the courts are so fussy, you'll almost definitely need to enlist the help of someone to help you with your application form. Lawyers will normally charge thousands of pounds to get you through the process. That's why we created our lower-cost support service which is a great fit for more straightforward situations.

Use our free online tool to find out if your situation is a good fit for one of our fixed-price support services.

This is the most difficult question to answer as it varies dramatically. The Sheriff Court will process your application anywhere between 2 hours and 12 weeks, depending on which court you have to use and what their workload is like. 

You must use the court that is local to where the deceased last lived - Edinburgh and Glasgow are the slowest by far. If the deceased didn’t live in Scotland at the time of their death, normally you’ll have to use Edinburgh Sheriff Court.

In more general terms, the whole probate process could take anywhere from a few weeks to a few years, in extreme cases. This timeframe will be determined by which companies you need to deal with as some are really helpful and others can be very slow to respond. If there are foreign assets, this will complicate matters further.

Our turnaround time to check or produce forms is 6 working days.

In the vast majority of cases, yes!

However, there are a few situations where it may be a good idea to seek legal advice. For example, when: 

• there are disagreements between family members that can't be solved
• the estate is overly complex and there is inheritance tax to pay (we can put you in touch with a tax specialist)
• someone is challenging the validity of the Will (this is only really possible if there is a question over mental capacity or if they were coerced)
• there are unusual or complicated tax arrangements, like assets in trusts
• you think the estate might be bankrupt/insolvent
• there are foreign assets in the estate (you may need a lawyer in that country)

If the estate is worth more than £250,000 and there is no Will, you will need to use a solicitor to manage the process.

If you'd like to save lots of time and money by doing probate without a solicitor, find out how you should apply and get a free quote for one of our low-cost support services.

Most people have a straightforward situation where getting a Grant of Confirmation is just a formality because a company like a bank has asked for it, or there is a property to sell.

Using a normal solicitor service that costs thousands of pounds to deal with a straightforward situation can often be like using a sledgehammer to crack a nut. On occasion, things can be complicated and using a solicitor might be necessary, but in our experience, this is unnecessary in the vast majority of cases.

Not only will a solicitor service cost thousands of pounds, but it could make the process take a lot longer, as they generally manage large and varied caseloads.

Find out more about using a solicitor for probate

Why won't the Sheriff Court help me?

If the estate is worth more than £36,000 then the Sheriff Court is not permitted to help you with your application.

The £36,000 limit is completely arbitrary, but is supposedly designed to make sure the court doesn't have to help with estates that own a property. This is because they would have to check how the property is owned in order to list it correctly in the form to make sure the conveyancing can be done successfully after Confirmation is granted. They don't want to have responsibility for that in case they make a mistake (sometimes it can be rather tricky!).

As part of our support services, we check how a property is owned, accessing the Registers of Scotland database if necessary.

Want our help making sure the property is listed correctly? Find out how you should apply and get a free quote.

Can I get legal aid to help with probate?

The short answer is 'no'.

Unfortunately, because probate (or Confirmation in Scotland) is usually only needed for situations where there are assets involved, there is no legal aid available to help with obtaining probate.

If the estate is worth less than £36,000, the Sheriff Court will help with the Confirmation process free of charge.

If the estate is worth more than £36,000, we can help in the majority of cases with one of our fixed price support services.

If you'd like some free personalised advice, book a free 15-minute call with one of our experts.

There's usually not any Inheritance Tax to pay if the estate is worth less than £325,000, or when the entire estate passes to a spouse, civil partner, or charity.

However, there could be tax to pay if large gifts were given away in the 7 years before death, or if their house was signed over to someone else but they continued to live there without paying rent.

If the estate's worth more than the individual tax limit of £325,000, there are a few exemptions available to avoid paying tax, like using another spouse's tax allowance, or the newer 'residence' tax allowance if the family home is passing to children or grandchildren. It's often possible to have up to £1million tax-free if the person was widowed and they inherited everything from their spouse's estate.

Find out more about Inheritance Tax

Everyone can pass on at least £325,000 tax-free when they die. If the person that died has an estate worth more than £325,000, and their spouse died before them, it is possible to use the spouse’s tax allowance to increase the tax-free amount that can be passed on. 

For deaths after the 1st of January 2022, all you need to do is tick a box in the C1 form and the tax-free limit is doubled to £650,000. No supporting information relating to the first spouse is required.

For deaths before the 1st of January 2022, you will need to use the IHT217 form along with the C1 and C5 forms to double the tax-free limit to £650,000. There is a time limit to submit the forms of 24 months after the death of the second spouse for this method so you'd need to contact HMRC to ask if they'll make an exception.

You will need to use the IHT400 form to increase the tax free limit above £325,000. HMRC will want to see the Grant of Confirmation for the first spouse (or death certificate if no grant was issued), along with a copy of their Will, if they had one.

There is a time limit to submit the forms of 24 months after the death of the second spouse for this method.

Find out more about using the IHT400 form

If there isn’t any Inheritance Tax to pay, and you’re far away from the tax limit, an estimate based on recent sales of similar properties in the area is fine. Get a free valuation from an estate agent. Recent sale price data is also available online.

If nobody is living in the property, it’s recommended to use the highest justifiable valuation. This is because if the property is sold for more than the value you submit for probate, you might have to pay Capital Gains Tax on the difference in value. 

If you have Inheritance Tax to pay, or the estate is very near the limit, it’s recommended to use a chartered surveyor to produce a valuation for this purpose. HMRC may still want to send their own surveyor.

The value of items is based on what they would get on the open market in their current condition, not any kind of insurance value. For cars, we recommend using We Buy Any Car to get a free online valuation.

If there isn’t any Inheritance Tax to pay, and you’re far away from the limit, you can just group everything together and make a guesstimate yourself. It's recommended to get any individual items worth more than £1,500 valued professionally.

If you have Inheritance Tax to pay, or the estate is very near the limit, it’s recommended to get a local auctioneer to come and value the personal belongings and house contents, even if you’re planning to throw everything away.

For stocks and shares listed on the stock exchange, you should calculate the value using the highest and lowest prices on the date of death. If the person died at the weekend, you can use the price from the Friday or Monday, usually whichever is lower. 

Use our share valuing guide for listed stocks and shares

For shares in private companies, you’ll need to ask the company or an accountant to calculate the value of the shares. There are exemptions that can be used to avoid paying inheritance tax on this type of shares.

Yes. Settld provides a free service that contacts all the companies on your behalf to notify them of the death and request the date of death values for all the accounts (these are the values you need for your probate application). From your own personal dashboard, you can check on progress and instruct the accounts to be closed or supply further information, if required.

The Sheriff Court will only accept a Will made outside Scotland when a solicitor based in the country where the Will was made provides evidence that it is a legal Will.

This ‘evidence’ must be in the form of an official ‘Opinion’ as to the validity of the Will, along with a signed statement written on the Will (a ‘docquet’) by the solicitor. 

We can recommend a law firm in England that can prepare this ‘Opinion’ for a fixed fee of £180. We can also provide a template if your know a lawyer who can sign it.

The entire process of dealing with someone’s estate can be done remotely. However, it is made more difficult by the fact that the Sheriff Court and some other organisations require you to physically sign with a pen on some documents, which means you’ll need to post some documents if you’re not coming to the UK.

The original Will is the only document that is irreplaceable, so as long as it’s in Scotland you could ask someone to get it officially registered with the Registers of Scotland. This way, you can have an official extract posted to you, without fear of losing the original. This extract is the only type of copy permitted for use in the place of the original Will when applying for Confirmation from the Sheriff Court. You would still be expected to send your original ID documents in the post, but we have heard of exceptions being made for people living abroad.

Alternatively, if there are other executors listed in the Will living in the UK, you could resign and let them do all the signing. You would still be able to do all the admin and paperwork if you wish, but all the ‘wet’ signing could be done in the UK. It’s also possible to appoint a new executor in your place. We can help with both of these scenarios.

The final option would be to have someone appointed as your Power of Attorney in Scotland so they can sign on your behalf. This appointment can be set up in such a way that they only have powers related to documentation needed in this process. You'd need a solicitor to prepare this.

Generally speaking, all the money, property and possessions that someone owned on the day they died should be included for probate. However, there are some exceptions which we’ve listed below. Be careful as HMRC also has specific rules about including things that someone gives away, especially in the 7 years before death.

These types of policies can be set up in such a way that they do not form part of the estate. The easiest way to check is by asking the insurance company if the pay out 'forms part of the estate or not’. 

If they pay money out relatively large amounts immediately after notification of death, that is usually a sign that it doesn’t form part of the estate and therefore should not be included anywhere in the probate forms. 

If regular pension payments are continuing to be paid to someone, like a surviving spouse, there is nothing to include in the probate application.

If there is a lump sum being paid out, the easiest way to check if it forms part of the estate is by asking the pension company if the pay out ‘forms part of the estate or not’. 

If the gift was made more than 7 years ago, then you can usually leave these types of gifts out of the probate application. The big exception to this is if the person who gave away the gift continued to benefit from it, like signing over a house to someone else but continuing to live there without paying rent - this would need to be declared using the IHT400 form.

If the gift was made less than 7 years ago it should be declared, but there are exemptions that can be used.

Read more about gifts on the GOV.UK website

This is where things can get tricky. For specific information on different types of trusts, we’d recommend reading the HMRC guidance. If the type of trust is definitely exempt from Inheritance Tax, you can leave it out of the probate application. We’d usually recommend using a solicitor when there are trusts involved in an estate as the rules can be very complicated.

This list is not exhaustive, so please get in touch if you are unsure about your situation.

Call 0131 618 6868 to speak with an expert (or book a free call back). In less than 15 minutes, we’ll:

• clear up any uncertainty around the process in front of you
• let you know if you need to get probate or pay tax
• give you a clear idea of costs and timescales

Alternatively, use our free online tool to get personalised information on how to apply for Confirmation.