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.
A will is a legal document and it is essential that it is drawn up correctly. While it is not a legal requirement to use a solicitor, it may be advisable to do so, especially if the situation is complex.
If the value of an estate is above the threshold for inheritance tax, a professional adviser may also be able to help with tax or estate planning.
Will writing kits are available and there are many companies who offer will writing services.
Key Points
Only a valid will can ensure that after death all possessions will be allocated in line with the deceased person’s wishes.
If there is no will, the property of the estate will have to be distributed in line with the rules of intestacy. Intestacy rules stipulate clearly who can inherit from an intestate estate, so it is possible that money and possessions may then not be distributed as the deceased may have wished. This particularly applies to unmarried couples who cannot usually inherit from each other without a will.
A will may also instruct the executor about the funeral requirements/service etc and who will be responsible for paying the estate’s debts and taxes. Furthermore, it may nominate someone to act as guardian to any children left by the deceased.
Formalities
Problems may arise after the person’s death if a will does not comply with the formal, legal requirements. This can result in distress and possibly expensive legal wrangling among family or friends.
For a will to be valid, it must be in writing. It must also have been made without influence or duress from others. At the time of writing the will the person making the will must be at least 18 years of age and of sound mind.
A will must be signed by the person making the will and it needs to be witnessed, only one witness is required in Scotland. A witness of a will cannot benefit from it.
There also must be a separate clause that states the circumstances in which the will was witnessed and signed.
The will does not have to name the executor whose role it will be to ensure that the details of the will are adhered to. However, it is advisable to appoint an executor at this stage to avoid any future confusion or dispute. Up to four people can act as executors of one will.
Confirmation
The executor must obtain legal authorisation before the estate can be dealt with. Confirmation is the formal legal process that allows the estate of the person that has died to be released. The confirmation document gives the personal representative, usually the executor of the will, legal authority to deal with the deceased person’s affairs. The executor may deal with these affairs themselves or decide to appoint an agent on their behalf; if this is someone other than a solicitor, they must be a member of a professional body approved by the Department for Constitutional Affairs.
If there is a will, the executor will have to apply for confirmation. There are strict rules about who can be the administrator of a will:
In Scotland, an executor usually must be appointed in court unless the value of the estate is relatively small. The court would normally appoint the surviving spouse as executor. If there is no surviving spouse, a strict order of preference is applied starting with any children.
In the event of any problems with the actions of a personal representative, it will be advisable to discuss these issues and any possible legal action with a solicitor. Courts have the power to pass over or remove an executor or other personal representative; for example, if the executor is bankrupt.
In Scotland, once an executor has been appointed by the court, they cannot resign or appoint somebody else as executor without going back to court.
If a bank or solicitor is acting in the role of a professional personal representative, anybody with an interest in the estate will have recourse to the appropriate complaint’s procedures.
The office to apply to in Scotland for confirmation is as follows:-
- local sheriff clerk’s office – Scottish resident who does not live in Edinburgh
- Commissary office, Edinburgh – There are three different categories (a) residents of Edinburgh, (b) resident of Scotland but with no fixed abode, (c) person with property in Scotland.
The address of the Commissary Office in Edinburgh is:-
HM Commissary Office
27 Chambers Street
Edinburgh
EH1 1LB
Tel: 0131 225 2525
Fax: 0131 225 8899
E-mail: cru@scotcourts.gov.uk
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