Applying for confirmation
When dealing with a deceased's estate, you may have been told that you need to obtain 'confirmation' before any money and other property, belonging to the deceased, can be released. It is often a bank, building society or insurance company that will ask for this.
'Confirmation' is a legal document from the court giving the executor(s) authority to uplift any money or other property belonging to a deceased person from the holder (such as the bank), and to administer and distribute it according to law. An application is lodged with the sheriff court.
This is only one part of the process in dealing with a deceased's estate, and is the part that the court is involved in. You will find some useful information on other parts of the process in the document What to do after a death in Scotland......practical advice for times of bereavement, produced by the Scottish Government.
When applying for confirmation, an executor must provide a list of all the deceased's property at the time of death. The list - called an inventory - might include money, houses, land and shares.
Confirmation is possible only if the inventory includes at least one item of money or other property in Scotland.
Small Estate or Large Estate
There are two types of confirmation, for small estates and for large estates. A 'small estate' is an estate where the total value of the deceased's money and property is £36000 or less. A 'large estate' is an estate where the total value is above this. In calculating the total value, you should not deduct any debts, such as funeral expenses, gas or electricity bills, balance of mortgage, owed by the deceased.
The values of bank accounts must also include interest to date of death.
The procedure, forms and fees are different depending on what type of estate the application relates to. If the estate is a small estate, then the sheriff clerk will be able to help you prepare the 'inventory', and you can contact your local sheriff court to arrange an appointment.
If the estate is a large estate, we would recommend seeking legal advice. The Law Society of Scotland can provide contact details for solicitors in your area.
Presence of a will
The procedures are also different depending on whether or not the deceased left a will. If they did not leave a will, you might hear the estate being referred to as 'intestate'; if they did leave a will, you might hear the estate being referred to as 'testate'. If there was a will left and it complies with all of the legal requirements in Scotland, then the information noted above in relation to small and large estates will apply. If they did not leave a will, then you may have to get a bond of caution before you apply for confirmation of the estate, further information on this can be received from the sheriff clerk. If it is a large estate, and there is no will, there is an additional step in the procedure. You would need to apply to be appointed executor, using the dative petition procedure. We would advise seeking legal advice in relation to this.
Forms and Guidance Notes
Forms and guidance notes for the small estate procedure can be found in the small estates section.
Forms and information for the large estate procedure can be found in the large estate section.
Applications after confirmation has been issued:
- where the original executor has died or has become incapacitated without fully administering the estate of the deceased (Ad non executa); or
- where additional estate is discovered or where estate has been wrongly valued in the original confirmation and the principal executors appointed will not, or cannot act (Ad omissa).
The form to be used is Form X-1 Confirmation ad non executa / ad omissa
An application can also be made to court where an asset was not included in the original inventory. To do this, you would need to complete a corrective inventory and the form to be used is Form C4(S). Further information can be accessed on the HMRC website.
How much will it cost?
The fees for applying for confirmation will depend on the value of the estate and the number of certificates you need to provide for different banks, insurance companies etc. to allow them to release the funds. The current fees can be accessed in the Sheriff Court Fees section of the website.
You should note that these fees do not include any fees you may need to pay if you have instructed a solicitor to help you. The solicitor can give you information on these costs.
You cannot apply for fee exemption when applying for confirmation unless the estate of the deceased person is exempt from inheritance tax by virtue of:
- section 153A (death of emergency service personnel etc.),
- section 154 (death in active service etc.), or
- section 155A (death of constables and service personnel targeted because of their status)
of the Inheritance Tax Act 1984 in which case there is no fee in respect of the inventory of that estate. However, fees for certificates, copies, etc. remain payable in these circumstances.
Making a will
Scottish Courts and Tribunals Service cannot provide you with any advice on making a will, however you will find some useful information on the Citizens Advice Bureau website
Guidance notes and forms for use when applying for confirmation can be accessed on the HMRC website.
Frequently asked questions
Frequently accessed questions related to commissary procedure can be found in the Frequently Asked Questions section of the website.
Where can I get legal advice?
Scottish Courts and Tribunals Service staff are not legally qualified and therefore cannot provide you with any legal advice. If you do need to get legal advice, the Law Society of Scotland can provide contact details for solicitors in your area.