We post an awful lot on our blog about applications for letters of administration in England, Wales and Northern Ireland and would like to offer the same help and information for our Scottish readers.
Scotland has a separate judicial system to the rest of the UK, this means there are substantial differences between probate in Scotland and in the rest of the UK. Probate is upheld by the Scottish Courts; laws, terminology and processes are very different.
While the process of applying for probate (confirmation) when there is a valid will may be quite similar to that of England and Wales, this is not so for cases of intestacy.
Who should apply for Letters of Administration?
The Succession (Scotland) Act 1964 determines, who can apply to administer the estate, who will inherit and how much they are entitled to inherit. A personal representative for the deceased will be appointed by the Sheriff Court in the following order of priority;
a person who is entitled to inherit
deceased’s next of kin
the procurator fiscal
How to Apply
First you must make an inventory of assets and value the estate. Estates valued at less than £36,000 can go through a simplified version of the confirmation process. You must contact the Sheriff Court nearest to where the deceased was domiciled at the date of death and arrange an interview.
For estates that exceed £36,000, an inventory form C1 and relative form C5 must be completed, and sent with the relevant documentation to the Sheriff Court. If inheritance tax will be due, a complete tax return must be prepared (form IHT400) and sent to HMRC.
Before obtaining confirmation, the representative must obtain a Bond of Caution. This is a guarantee made by an insurance company that the executor will distribute the estate in accordance with Scottish intestacy laws.
What Happens Next?
Provided there are no complications, you will be granted letters of administration. The document can be used to obtain access to funds, act on behalf of the deceased and wind up the estate. This involves informing relevant persons, maintaining a set of accounts, collecting monies owed, paying creditors, correspondence with beneficiaries, the sale of assets and ultimately distributing assets in accordance with intestacy law.
Who will Inherit and How Much?
Scottish Succession law sets out how intestate estates should be divided. Inheritance law states that certain beneficiaries have `rights` to claim; these are known as the Rights of Succession. These are briefly summarised as –
Prior Rights – The entitlement of the surviving spouse or civil partner.
Legal Rights – After the satisfaction of prior rights, the surviving spouse and children of the deceased are entitled to claim legal rights to the moveable estate.
The Free Estate – Is the remainder, after legal rights and expenses which is divided between close relatives.