Scotland

Scotland does not have probate. It has confirmation, granted by the commissary department
of the sheriff court for the area where the deceased was domiciled. The executor is an
executor-nominate where a will appoints them, or an executor-dative appointed by the court
where it does not.

Confirmation obtained in Scotland is recognised in England, Wales and Northern Ireland, and
theirs here, provided the grant notes the deceased's domicile. Only one is needed.

You cannot disinherit your family

This is the substantive difference from the rest of the United Kingdom, and it is not a
technicality. Under the Succession (Scotland) Act 1964, a surviving spouse or civil partner
and the children have legal rights in the deceased's worldwide net moveable estate —
everything except land and buildings — whether or not there is a will.

Broadly: where a spouse and children both survive, each side may claim one third; where only
one class survives, one half. The rights arise automatically, need no court application, and
rank as a debt on the estate. An executor who distributes according to the will without
addressing them has a problem.

On intestacy, prior rights apply first, on top of that.

The paperwork

Every application starts with form C1, an inventory of everything the deceased owned in
Scotland. An executor-dative must usually also obtain a bond of caution — an insurance
policy guaranteeing they administer the estate properly. Very few insurers write them, which
regularly delays intestate estates.

Small estates

Where the estate is under £36,000 the sheriff clerk can help prepare the application, and
confirmation fees are reduced or nil. Confirm current figures with the court.

Scottish will formalities are governed by the Requirements of Writing (Scotland) Act 1995, and
they are noticeably lighter than in England.

One witness, not two

A will is formally valid if it is subscribed — signed by the testator at the end. To make it
self-proving, so that nobody has to prove the signature later, it must additionally be:

• signed by the testator on every page, and
• witnessed by one witness, who signs and is identified by name and address.

One witness, where England and Wales require two. Always make it self-proving; the alternative is
an application to the sheriff court to prove the signature.

You can make a will at twelve

Scotland sets testamentary capacity at 12 years old — the lowest age anywhere in this guide,
and a genuine peculiarity of Scots law.

Legal rights cannot be written out

A will does not override legal rights. A spouse, civil partner or child can claim their
share of the net moveable estate regardless of what it says.

You can plan around this — moveable property can be converted into heritable property, and a
legacy can be framed so a claimant must choose between the legacy and their legal rights — but
you cannot simply disinherit. If that is your intention, take advice rather than assuming a
firmly worded will achieves it.

Also

• Marriage does not revoke a Scottish will, unlike in England and Wales.
• The birth of a child can give rise to a claim that the will should be revisited.
• Name a substitute executor, and say whether they may charge.
• Review after a marriage, divorce, birth, or a move across the border in either direction.

Usually not, and the reasoning matches the rest of the United Kingdom rather than Canada or
the United States.

A lay executor acts unpaid

An executor who is a friend or family member is expected to act without payment. There is no
statutory percentage and no entitlement to a fee for their time.

Two routes exist to being paid: a charging clause in the will, or the agreement of all the
residuary beneficiaries, given with full knowledge and by people of full age and capacity.

Solicitors are different

A solicitor named as executor charges under the will's charging clause, and in Scotland it is
common for a solicitor to be appointed alongside a family member precisely because the executry
work is technical.

An executor-dative may face a cost the will never anticipated

Where there is no will, the executor-dative must generally obtain a bond of caution. The
premium is an estate expense rather than a fee, but it is real money, it must usually be arranged
before confirmation issues, and the market for it is small. Budget for it early.

Expenses are always reimbursable

Unpaid does not mean out of pocket. Every executor may recover their reasonable out-of-pocket
expenses from the estate, and in Scotland that includes the cost of valuing and inventorying
everything for form C1.

If you are writing a will

Say expressly whether the executor may charge. Scottish executry work involves the legal rights
calculation, the C1 inventory and often a negotiation between beneficiaries — asking a family
member to do that for nothing, over a year, is a decision to make deliberately.

An executor in Scotland is reimbursed from the estate for the reasonable expenses of the
executry. Since a lay executor is normally unpaid for their time, this is the only money they
will see — claim it properly.

Normally claimable

• Funeral, burial or cremation, the headstone, and a reasonable funeral tea.
• Confirmation fees, additional certificates of confirmation — order several, since each
  institution wants one — and certified copies of the death certificate.
• The bond of caution premium where the executor is an executor-dative.
• Solicitors' and accountants' fees, and the estate's tax returns.
• Valuations for form C1: property, shares, jewellery and chattels. The inventory has to be
  accurate and sworn, so professional valuations are ordinary practice rather than a luxury.
• Inheritance tax, which is a UK-wide tax and applies in Scotland exactly as elsewhere.
• Carrying costs on estate property until sale: unoccupied property insurance, council tax,
  utilities, security, garden maintenance.
• House clearance, storage and removals.
• Travel on executry business at a reasonable rate — relevant where the deceased held property in
  the islands or the Highlands.
• Advertising for creditors.

Normally not claimable

• The executor's lost earnings or their time.
• Costs run up for one beneficiary's convenience rather than the estate's.
• Improvements to a property beyond preparing it for sale.
• Anything without a receipt.

The rule that decides it

Open an executry bank account and run everything through it. The C1 inventory is sworn, the
beneficiaries are entitled to an account, and a legal rights claim will put the arithmetic in
front of someone who is checking it.

Scottish executries reach a solicitor more often than English ones do, and for a specific reason:
the legal rights calculation is technical, it is adversarial by nature, and getting it wrong
exposes the executor personally.

Consider a professional when

• Legal rights are in play and somebody may claim. Working out the net moveable estate,
  distinguishing moveable from heritable property, and handling a claimant who must choose between
  a legacy and their legal rights is specialist work — and the executor is often one of the people
  whose share it reduces.
• There is no will, so an executor-dative must be appointed and a bond of caution obtained.
  Very few insurers write them and a refusal can stall the estate completely.
• The estate is taxable for inheritance tax, or holds a farm, business or let property.
• The deceased owned property in England or abroad as well as in Scotland.
• A beneficiary is a child or lacks capacity, so a trust runs for years.
• The family is already in dispute — a legal rights claim between siblings is a common shape for
  that.

What it costs

Solicitors generally charge on a time basis, sometimes with a percentage element for executry
work. Ask for the basis in writing, and ask specifically what the legal rights work will cost, as
it is the part that varies most.

Middle ground

Appoint a family member as executor-nominate and let them instruct a solicitor at the estate's
expense. Naming a solicitor jointly with a family member is more common in Scotland than
elsewhere in the UK and is often the right answer where legal rights are likely to be claimed.

An executor-nominate who does not want the role can decline before beginning to act.