Can an executor sell a house before Confirmation in Scotland?
Marketing the house, when the sale can go through, survivorship destinations, insurance and council tax.
Read the guideThe short answer
Only if the title deeds contain a survivorship destination, wording such as "and the survivor of them" after the owners' names. If they do, the share of the owner who died passes automatically to the other owner, whatever the will says, and no Confirmation is needed for the house. If they do not, the share forms part of the estate and passes under the will, or the intestacy rules, and the executor has to transfer it. You can check by ordering the title sheet from Registers of Scotland.
Couples, siblings and friends often buy a home together, and most never think about the wording of the title. In England and Wales, the question is whether the owners are joint tenants or tenants in common. Scotland uses a different idea, the survivorship destination. Whether one is present can make the difference between a house passing straight to a partner, and a partner having to share the house with someone else's children.
What is a survivorship destination?
A survivorship destination, sometimes called a survivorship clause, is wording in the title that says what happens to each owner's share when they die. Registers of Scotland gives this example:
Typical wording
John Smith and Jean Smith, both 29 Forest Road, Oaktown, equally between them and the survivor of them.
The words "and the survivor of them" mean that when John dies, his half passes to Jean automatically, and vice versa. The wording can vary, but it normally follows the owners' names.
How to check your title
- Land Register properties. Order a copy of the title sheet through ScotLIS, the Registers of Scotland online service. The owners' names and any destination appear in the proprietorship section.
- Older Sasine titles. If the property has not yet moved to the Land Register, Registers of Scotland customer services can provide a copy of the title.
- Ask a solicitor. The solicitor who acted in the purchase will have a copy, and any executry solicitor can check it in minutes.
With and without a survivorship destination
| Situation | What happens to the share | Confirmation needed for the house |
|---|---|---|
| Survivorship destination in the title | Passes automatically to the surviving owner | No |
| No survivorship destination, and a will | Passes to whoever the will leaves it to | Yes, for the share |
| No survivorship destination, and no will | Passes under the intestacy rules, often to a spouse or children | Yes, for the share |
| Owned in the person's sole name | Part of the estate | Yes |
If there is a survivorship destination
The surviving owner becomes the owner of the whole property from the moment of death. There is nothing they have to sign, and the house does not need to be included in the executor's Confirmation for it to pass.
Updating the Land Register is optional. Registers of Scotland will remove the name of the owner who died, free of charge, if you send:
- a full extract of the death certificate;
- a letter from a solicitor confirming that the destination was not evacuated, meaning it was never cancelled.
The solicitor's letter is essential. It is worth updating the register, because it makes a future sale or remortgage simpler.
The mortgage
The house passing automatically does not clear a joint mortgage. The surviving owner remains responsible for the whole loan, so check straight away whether any life cover or mortgage protection policy pays it off. Tell the lender about the death as soon as possible.
If there is no survivorship destination
The share of the owner who died forms part of their estate. The executor needs Confirmation to deal with it, and then transfers the share to the person entitled to it:
- to a beneficiary, by signing a docket on the Confirmation or a disposition, without needing to sell;
- to the surviving owner, if the will or the intestacy rules give it to them, or they agree to buy it;
- by selling it, usually with the co-owner's cooperation, and paying out the proceeds.
This is where problems can arise. If a man owns a house with his partner without a survivorship destination and dies without a will, his half may pass to his children from an earlier relationship. His partner then co-owns the home with them. If they cannot agree, any co-owner can ask the court for an order to divide or sell the property. Our guide on what an unmarried partner can claim explains the partner's options.
Does a survivorship destination override the will?
Usually. Under section 30 of the Succession (Scotland) Act 1964, a will can only cancel a survivorship destination if:
- it was a destination the owner was able to cancel on their own; and
- the will specifically refers to the destination and says that it is intended to cancel it.
Where each owner contributed to the price, as with most couples buying a home together, the destination is generally treated as a contract between them, and one owner cannot cancel it alone, whether by will or otherwise. Both owners would need to agree, usually by signing a new disposition. A will that simply leaves "my half of the house" to someone else will not normally work if there is a survivorship destination.
Divorce, separation and survivorship
- Divorce or dissolution. For deaths on or after 1 November 2016, section 2 of the Succession (Scotland) Act 2016 treats a former spouse or civil partner as having died first, so the survivorship destination does not pass the share to them, unless the title expressly says it should.
- Separation without divorce. This does not affect the destination. A separated husband or wife can still take the whole house on the other's death.
- Unmarried couples who split up. The destination stays in place unless both agree to cancel it. One former partner cannot remove it on their own.
If your relationship has ended, check your title and take advice promptly, while both owners are able to sign.
Survivorship and tax
A share that passes by survivorship still counts as part of the estate for inheritance tax. If it passes to a husband, wife or civil partner, the spouse exemption applies. If it passes to an unmarried partner, a brother or sister or a friend, it uses the ordinary allowances. The executor needs to include it when working out whether tax is due. Our guide to inheritance tax in Scotland explains the allowances.
The pros and cons of a survivorship destination
| Advantages | Disadvantages |
|---|---|
| The home passes immediately to the survivor, even without a will | It is inflexible, and usually both owners must agree to remove it |
| No Confirmation is needed for the house, which can save time and cost | It can defeat plans to leave a share to children, especially from an earlier relationship |
| It protects an unmarried partner, who would otherwise have no automatic right to inherit | The whole house then counts in the survivor's estate, which can affect tax planning and care home fee assessments |
The Law Society of Scotland has warned that survivorship destinations are sometimes added without much thought at the time of purchase, and only cause problems years later. When you make a will, your solicitor should always check how your home is owned, so that the will and the title work together.
How we can help
We can check the title, confirm whether the destination was ever cancelled, update the Land Register, and deal with the share through the executry if there is no destination. Talk to our executry solicitors in Glasgow, Hamilton, East Kilbride or Dumfries. We also help families across Paisley and Motherwell.
Frequently asked questions
What happens to a jointly owned property if one owner dies in Scotland?
It depends on the title. If the title contains a survivorship destination, usually the words "and the survivor of them", the share of the owner who died passes automatically to the other owner. If it does not, their share forms part of their estate and passes under their will, or the rules of intestacy if there is no will, and the executor has to transfer it.
Does a survivorship destination override a will?
Usually, yes. A will can only cancel, or evacuate, a survivorship destination if it was one the owner was able to cancel, and the will refers to it specifically and says it is intended to cancel it. Where both owners paid for the property, the destination generally cannot be cancelled by one owner's will alone.
Do I need to update the title deeds after the other owner dies?
You do not have to. The survivorship destination works automatically. But if you want the register updated, Registers of Scotland will remove the name of the owner who died, free of charge, if you send a full extract death certificate and a letter from a solicitor confirming that the destination was not cancelled.
What happens to a survivorship destination after divorce?
For deaths on or after 1 November 2016, if a couple owned property with a survivorship destination and later divorced or dissolved their civil partnership, the former spouse or civil partner is treated as having died first, so they do not take the other's share, unless the title says otherwise. Separation without a divorce does not have this effect.
Is inheritance tax due on a house that passes by survivorship?
The share that passes still counts as part of the estate for inheritance tax. If it passes to a husband, wife or civil partner, it is exempt. If it passes to anyone else, such as an unmarried partner or a brother or sister, it uses the ordinary allowances.
Need help with an estate?
Our executry solicitors can take the whole process off your hands, or answer a single question. Your first appointment is free.
This guide is general information about Scots law, correct at the date shown. It is not legal advice for your circumstances.
