Is Confirmation the same as probate?

Most of the UK's websites, banks and advice services talk about probate, because that is the term used in England and Wales. Scotland has its own legal system and its own process, called Confirmation. If the person who died lived in Scotland, it is Confirmation that the executor needs, even though you will often see it described as "probate in Scotland" or "Scottish probate".

What is Confirmation?

Confirmation is a document issued by the sheriff court that confirms the executors' authority to deal with the estate. To apply, the executor lists everything the person owned at the date of death, with a value for each item, in an inventory. Once Confirmation is granted, banks, building societies, insurers and the Registers of Scotland will deal with the executor.

The executor can also ask for certificates of Confirmation for individual assets. Each one relates to a single item, such as a particular bank account, so the executor can deal with several organisations at the same time without sending the full Confirmation to each.

Confirmation and probate compared

The biggest differences in practice

One process, with or without a will

In England and Wales, probate is granted where there is a will, and letters of administration where there is not. In Scotland, the end result is Confirmation either way. What changes is how the executor is appointed. If there is a will, the executors named in it apply directly. If there is not, someone first petitions the sheriff court to be appointed executor-dative. Our guide on becoming an executor when there is no will explains that step.

The inventory is public and itemised

A Scottish Confirmation lists every asset with its value, and once granted it becomes a public record. An English grant only shows the overall value of the estate. Executors in Scotland therefore need to identify and value each item carefully, and if something is missed, a corrective inventory is needed later.

Different family protection

Scots law gives children and a surviving spouse or civil partner legal rights, a fixed share of the moveable estate that they can claim whatever the will says. England and Wales has no fixed shares, but family members and dependants can ask the court for reasonable financial provision. The rules that apply depend on the person's domicile. Our guide on whether you can disinherit a child in Scotland explains legal rights.

Scottish terms and their English equivalents

Which one do you need? It depends on domicile

The key question is where the person was domiciled when they died, which broadly means the country they regarded as their permanent home. It is not decided by where their property or bank accounts are.

• Domiciled in Scotland: the executor applies for Confirmation in Scotland. The inventory includes property elsewhere in the UK, such as an English bank account or house.
• Domiciled in England and Wales: the executor applies for probate or letters of administration in England. That grant also covers property in Scotland.
• Domiciled in Northern Ireland: a Northern Irish grant is used, and it is recognised in Scotland in the same way.
• Domiciled outside the UK: if there are assets in Scotland, Confirmation is applied for through the Commissary Office at Edinburgh Sheriff Court.

Estates with property on both sides of the border

The Administration of Estates Act 1971 makes cross-border estates within the UK much simpler.

• Scottish Confirmation used in England and Wales. Where the person died domiciled in Scotland, a Confirmation that notes their Scottish domicile is treated in England and Wales as a grant of representation, without being resealed. It counts as a grant of probate if the executors are executors-nominate, and as letters of administration otherwise. The same applies to a certificate of Confirmation for a single item.
• English grant used in Scotland. Where the person died domiciled in England and Wales, a grant that notes their domicile has the same effect in Scotland as a Confirmation, again without being resealed.

So a Scottish executor can use Confirmation to close an English bank account, and an English executor can use their grant to deal with a Scottish one. What does differ is the property transaction itself. Selling a house in England still needs an English conveyancer, and selling one in Scotland needs a Scottish solicitor.

Outside the UK, other countries have their own rules. A Scottish Confirmation may need to be resealed, or a separate application made, before it can be used abroad.

Do you always need Confirmation?

No. Just as with probate, some estates can be dealt with without it. Banks will often release smaller balances under their own procedure, joint accounts usually pass to the surviving holder, and a house owned with a survivorship destination passes automatically to the other owner. Our guide to how much a bank can release without Confirmation sets out the main banks' limits.

How we can help

We apply for Confirmation for families across Scotland, including estates with property or accounts in England. If you have been asked for probate for someone who lived in Scotland, we can explain exactly what you need and handle the application for you. Talk to our executry solicitors in Glasgow, Hamilton, East Kilbride or Dumfries, where we often deal with estates that cross the border. Our executor's checklist takes you through the whole process.

This guide is general information about Scots law, correct at the date shown. It is not legal advice for your circumstances.