Until recently, the position with regards to obtaining Confirmation in an estate (the Scottish equivalent of probate, which gives Executors the authority to uplift, ingather and transfer estate assets) was unclear. Although new practices were previously put in place allowing some court documents to be signed and lodged electronically; commissary documents, which include applications for Confirmation, were excluded. Thankfully some processes have now been changed to allow matters to progress. It is to be expected that all applications will, due to reduced staff resources, take longer.
With many courts throughout Scotland being closed to all business, the Scottish Courts and Tribunals Service (SCTS) have introduced court hubs in each jurisdiction which are to act as a base for all courts within that jurisdiction. The SCTS announced in late April that commissary applications would start being processed during lockdown from 1 May.
All commissary applications (including applications for Confirmation and petitions for the appointment of executors) must be sent in hard copy by post to the hub court within the jurisdiction the deceased resided in at the time of their death.
What about signing?
Applications must be signed by executors – problematic, but not impossible. A trickier issue is that testate applications require the principal Will, signed by the executor, to be submitted to the court alongside the Confirmation application. Under normal circumstances the practice would be to meet with the executor, avoiding the unnecessary use of the postal service. Under the current circumstances that is not possible, so there are some solutions around dealing with this, each with its own risks, but ultimately the sending of a principal Will in the post should be restricted as much as possible and if absolutely required should at the very least involve a service that tracks delivery.
What about the Inheritance Tax (IHT) return?
When an estate is liable to IHT, the sum due must be paid to HMRC and only then can the application for Confirmation be submitted. HMRC will no longer be accepting payment by cheque and payment of IHT must now be made by one of the other methods listed on their website.
In addition, all IHT returns, which usually require the signature of all executors, can now temporarily, be submitted with printed signatures. This is only acceptable if there is a professional agent (i.e. solicitor) acting. The names and other personal details of the executors should be shown on the declaration page, and the account should include a clear statement from the agent confirming that all executors have seen the account and have agreed to be bound by the declaration.
The new measures will allow for Confirmation to be granted, but the process is changed at every step and will ultimately take longer than usual to achieve.
Get in touch – we’re here to help
Harper Macleod’s Private Client team regularly deal with the administration of estates including obtaining Confirmation and can assist and ease the burdens encountered when trying to deal with administering the estate of a loved one.
Our experienced and approachable team can take care of all matters arising from the death of a family member or friend in a sympathetic, speedy and efficient manner to help ease the burden.
If you would like to discuss your own situation please contact our private client team using the form below or call one of our offices on:
Elgin: 01343 542623
About the author
Call us for free on 0330 912 0294 or complete our online form below for legal advice or to arrange a call back.