Executor Checklist for Scotland: Confirmation, Steps and Deadlines

Scotland does not use the word probate. The executor obtains confirmation from the sheriff court, and several rules differ from England and Wales. This executor checklist for Scotland explains the role, the route check, the legal time limits and the order of the main tasks.

Who the executor is in Scotland

If the will names an executor, that person is the executor-nominate. If there is no will, or no named executor can act, someone has to petition the sheriff court to be appointed executor-dative, and may need a bond of caution, which works like a form of insurance, before confirmation is issued.

Confirmation gives you authority to uplift money and property from banks and other holders. You apply to the sheriff court for the area where the person was domiciled, or to HM Commissary Office at Edinburgh Sheriff Court if they were domiciled abroad or domicile is unknown.

Moveable estate means money, shares, cars, furniture and jewellery; heritable estate means land and buildings.

Route check: small estate or full confirmation

Start by estimating the gross value of everything the person owned, including bank interest to the date of death, without deducting debts such as funeral expenses.

Inheritance Tax is UK-wide. For deaths on or after 1 January 2022, an excepted estate reports its value on the C1 inventory. Where tax is due, or full details are required, IHT400 goes to HMRC before you apply.

Time limits that matter

The six-month wait is a principle rather than a statute: distributing early can leave you personally liable for debts claimed later, while a good-faith distribution after six months generally protects you.

The executor checklist for Scotland, in order

1. Register the death within 8 days. The registrar offers Tell Us Once, which also notifies Social Security Scotland.
2. Find the will and decide the route.
3. Get appointed if there is no will. Use the dative petition procedure and obtain a bond of caution if required.
4. Complete the C1 inventory and apply for confirmation, sending IHT400 to HMRC first if needed.
5. Ingather the estate. Use confirmation to uplift funds. Heritable property is transferred or sold through the Registers of Scotland.
6. Pay debts in the right order. Privileged debts, such as death-bed and reasonable funeral expenses and administration costs, come first. There is no statutory creditor notice procedure, but a Deceased Estates notice in The Gazette is good practice.
7. Settle legal rights and distribute. After six months, pay any legal rights claims and distribute under the will or the intestacy rules.

Assets found after confirmation go on a corrective inventory, form C4(S).

Legal rights, taxes and fees

Whatever the will says, a surviving spouse or civil partner and the children can claim legal rights from the moveable estate. A spouse or civil partner can claim one third if there are children or grandchildren, or one half if not. Children share one third if there is a surviving spouse or civil partner, or one half if not. Where there is no will, the prior rights of a spouse or civil partner are satisfied first.

Inheritance Tax is charged at 40% above the £325,000 threshold, and usually some tax must be paid before confirmation is issued. The confirmation fee is set by the court, so check the current schedule on the Scottish Courts and Tribunals Service site. There is no statutory court fee for issuing small estate confirmation, although copies and certified extracts are charged.

When to get professional help

A solicitor is not legally required for a small estate, and sheriff clerk staff can help with the inventory, though they cannot give legal advice. The courts service recommends legal advice for large estates and for the executor-dative petition. Note that if a solicitor prepares the inventory for a small estate with no will, a bond of caution is needed.

The Steady Executor Scotland kit follows the same order in five files: a user guide with the process, deadlines and a final checklist; an Excel executor workbook that works out legal deadlines from your dates and holds assets, debts, the estate account and distributions; financial letters for banks, insurers, pension providers and creditors; services and agencies letters for utilities, landlords, employers and government organisations; and beneficiary letters with a receipt form.

Sources

• Guide to dealing with a deceased's estate in Scotland (SCTS)
• Small estates (SCTS)
• What to do after a death in Scotland: executors (gov.scot)
• Legal rights (gov.scot)
• Registration of Births, Deaths and Marriages (Scotland) Act 1965, s.23
• Family Law (Scotland) Act 2006, s.29
• Deceased estates in Scotland (The Gazette)
• Check if you need to send full details of the estate (GOV.UK)