When someone dies, families often want to deal with their affairs quickly. Bills need to be paid, property may need to be secured, and beneficiaries naturally want to know when they will receive their inheritance. But in Scotland, an executor does not simply take control of everything and distribute the estate straight away.
Confirmation gives an executor the legal authority needed to uplift and deal with many assets belonging to the person who has died. There are limited circumstances where money or property may be dealt with before confirmation, but distributing an estate too early can create serious problems for the executor.
If you are dealing with an estate and are unsure what can be done before confirmation, speaking to Family Lawyers Glasgow can help clarify your position. You can contact Family Lawyers Glasgow to discuss the circumstances with a solicitor before taking action.
What does confirmation mean in Scotland?
In Scotland, the process is different from probate in England and Wales. When someone dies, the executor usually needs to apply for confirmation through the appropriate Sheriff Court. Confirmation is a legal document from the court which gives the executor authority to uplift money and other property belonging to the deceased and administer it according to law.
People sometimes refer to this generally as probate, particularly when comparing Scottish and English procedures. But technically, the Scottish process involves confirmation rather than a grant of probate. In probate in England, the personal representative applies for a grant of probate. In Scotland, the executor applies for confirmation.
The executor normally needs to prepare an inventory setting out the estate assets. This can include bank accounts, property, shares, investments and other money and property belonging to the person who died. The confirmation process gives the executor the legal authority needed to deal with assets held by organisations such as a bank or building society.
This often comes as a surprise to families. Having a valid will does not mean that the executor can automatically access every asset or distribute the estate. The will sets out the deceased’s wishes, but confirmation provides the authority needed to deal with assets held in the deceased’s name.
Can an executor distribute the estate before confirmation?
As a general rule, an executor should not distribute estate assets before confirmation has been granted. Confirmation gives the executor legal authority to uplift and administer the estate, and many banks, building societies, investment providers and other institutions will require evidence of that authority before releasing funds.
That does not mean absolutely nothing can happen before confirmation. Some practical steps can take place while the executor prepares the application. The executor may need to identify assets, obtain the death certificate, contact organisations, establish the value of the estate and deal with immediate administrative matters. In some circumstances, arrangements can also be made to pay inheritance tax directly from an account belonging to the deceased before confirmation. HMRC has a Direct Payment Scheme for this purpose, subject to the relevant requirements.
The important distinction is between dealing with the administration of the estate and distributing assets to beneficiaries. An executor may need to take steps to administer the estate before confirmation, but that does not give the executor a general right to distribute funds.
The Scottish Courts and Tribunals Service explains that confirmation gives the executor authority to uplift money or other property from the person holding it and then administer and distribute the estate according to law.
Why is it risky to distribute money too early?
An executor has responsibilities to the whole estate, not simply to the people who are expecting an inheritance. Before funds are distributed, the executor needs to establish what the estate owns, what liabilities exist and whether there are any claims that could affect the amount available to beneficiaries.
For example, an executor might know that one beneficiary is due £20,000 under a will. That does not necessarily mean the executor can simply pay £20,000 immediately. There could be a debt, tax liability, funeral expense or another claim against the estate that needs to be dealt with first.
The executor must also consider inheritance tax where applicable. The value of the estate and the tax position can affect how much is ultimately available for distribution. HMRC’s guidance confirms that estate administration can involve paying inheritance tax, dealing with debts, finalising tax matters and preparing estate accounts before the residue is distributed.
There can also be practical problems if assets are distributed and an unexpected liability appears later. An executor who distributes funds prematurely may find that beneficiaries have already spent the money, leaving difficult questions about how the estate’s outstanding obligations will be met.
That is one reason why a solicitor will usually advise an executor to take a careful approach rather than rushing to distribute assets.
What can an executor do before confirmation?
There is still plenty of work to do before confirmation is granted. Estate administration often starts shortly after the date of death, even though the final distribution comes later.
The executor can begin identifying the estate’s assets and liabilities. This might involve contacting banks and building societies, locating insurance policies, checking investment accounts and establishing whether the person who died owned property. The executor may also need to obtain valuations so that the value of the estate can be calculated accurately.
Preparing the confirmation application is another important part of the process. The executor applies for confirmation by submitting the relevant confirmation forms and inventory through the appropriate court process. HMRC provides the C1 confirmation form for estates where the person who died lived in Scotland.
The executor may also need to establish whether there is inheritance tax to pay and whether information needs to be provided to HMRC. Getting these matters right matters because mistakes in the inventory or tax information can cause delays and may have financial consequences.
Family circumstances can add another layer. If someone dies without a valid will, intestacy rules apply. If there is uncertainty over the will, legal rights or potential claims, an executor should be particularly cautious about distributing the estate.
Does the size of the estate make a difference?
The process can vary depending on the value and complexity of the estate. In Scotland, a small estate currently means an estate with a total value of £36,000 or less for the small estate confirmation procedure. A large estate is one where the total value is above £36,000.
A small estate can follow a simpler process. The sheriff clerk can assist with preparing the inventory in appropriate cases, although there can still be issues that require professional assistance. The small estate procedure also has particular rules around a bond of caution, depending on who prepares the inventory.
A large estate can be considerably more involved, especially where there is property, business interests, investments, overseas assets or complicated family circumstances. The Scottish Courts and Tribunals Service recommends seeking legal advice where a large estate is involved or where the executor is uncertain about the correct procedure.
The total value alone does not tell the whole story. A relatively modest estate can still cause difficulties if ownership is unclear or beneficiaries disagree. Equally, dealing with a large estate may require careful tax and legal planning before any funds are distributed.
When can the estate actually be distributed?
Once confirmation is granted, the executor can generally begin collecting and dealing with the assets covered by the confirmation. The executor can then work towards paying debts and expenses, dealing with tax, preparing estate accounts and eventually distributing the remaining estate to the beneficiaries.
There is another timing issue that families sometimes overlook. Executors will normally wait at least 6 months from the date of death before distributing the estate. This period gives creditors and others who may have a claim against the estate an opportunity to come forward. Citizens Advice Scotland also explains that beneficiaries should generally receive their inheritance only after the executor has dealt with these matters.
This does not mean every estate must sit untouched for six months. Administration can continue during that period. Assets can be gathered, debts can be dealt with, tax matters progressed, and estate accounts prepared. The point is that the final distribution should not be rushed before the executor has properly established what the estate owes and what can safely be paid to beneficiaries.
In some cases, a will may also contain provisions that affect when or how a beneficiary receives their inheritance. A solicitor can check the wording and explain what the executor can properly do.
What if money needs to be released before confirmation?
This is where the circumstances of the estate matter.
A bank or building society will often require confirmation before releasing money belonging to the deceased. The Scottish Courts and Tribunals Service specifically explains that confirmation provides the executor with authority to uplift money and other property from the holder.
There are exceptions and specific procedures. For example, HMRC allows certain inheritance tax payments to be made directly from the deceased’s accounts before confirmation through the Direct Payment Scheme. That is very different from an executor simply withdrawing money and giving it to a beneficiary.
If a family member is asking for an early payment, the executor should not feel pressured into making one simply because the money appears to be available. The executor has to consider the estate as a whole.
The same applies where a beneficiary needs money urgently. Their personal circumstances may be difficult, but that does not automatically give the executor authority to distribute the funds early.
What happens if an asset is discovered after confirmation?
Estate administration does not always end the moment confirmation is granted. Occasionally, an executor discovers an asset that was missing from the original inventory or finds that an asset was incorrectly valued.
There are procedures for dealing with this. Depending on the circumstances, an additional inventory, an Eik to confirmation or a confirmation ad omissa may be appropriate. Where an executor dies or becomes unable to complete the administration, confirmation ad non executa can also be relevant.
This shows why an executor should avoid treating the first valuation of the estate as a rough estimate. The inventory supports the confirmation application and can have consequences for tax and administration.
The executor may also need to prepare estate accounts showing what came into the estate, what was paid out and what remains for beneficiaries. Good records make the final distribution much easier to explain and defend.
Should you speak to a solicitor before distributing an estate?
For a straightforward estate, the process may be relatively manageable. But even then, an executor is taking on legal responsibilities. Where there is property, a large estate, inheritance tax, debts, disputed wills or uncertainty about beneficiaries, professional advice can prevent a costly mistake.
Family Lawyers Glasgow, part of the Complete Clarity Solicitors Family Law Team and private client department, can advise on the practical and legal issues that arise when administering an estate. The aim is to make the process understandable, particularly at a time when families are already dealing with bereavement.
If you are an executor and are unsure whether you can release funds, distribute assets or apply for confirmation, get legal advice before taking action. A short conversation with a solicitor at the right stage can prevent much bigger problems later.
You can speak to Family Lawyers Glasgow about the estate and the circumstances involved. The process does not have to feel overwhelming, and getting advice early can give an executor a clearer idea of what needs to happen next.
A final point for executors
The safest approach is usually to separate two things: administering the estate and distributing the estate.
An executor may need to deal with paperwork, assets, debts and tax matters before the estate is ready for distribution. But beneficiaries should not assume that a valid will means their inheritance can be paid immediately.
Confirmation is central to the Scottish process. Once the executor has the appropriate legal authority, has established the estate’s position and has dealt with the relevant liabilities and potential claims, distribution can usually proceed with much greater certainty.
If you are dealing with the estate of someone who has died in Scotland and are unsure what you can do before confirmation is granted, speaking to a solicitor can provide clarity before any money or property changes hands.
