Mike Davis: Challenges when dealing with probate in Scotland and how to face them

Mike Davis: Challenges when dealing with probate in Scotland and how to face them

Mike Davis

Law accountant Mike Davis looks at some of challenges when handling probate (confirmation) in Scotland, providing insight on how to overcome them.

When someone dies, the responsibility to manage their property, finances and personal belongings (their ‘estate’) usually falls to family or friends. Often the deceased person will have drafted a Will, in which they have appointed someone (an ‘Executor’) to be responsible to do this – though this isn’t true in 100% of cases. Either way, approximately 50% of the time a special court process called ‘probate’ (officially called ‘confirmation’ in Scotland) will be required before accounts can be closed and inheritance can be distributed.

The process of applying for and dealing with probate can prove stressful and complex, particularly for those struggling with grief. However, managed correctly, probate need not be the source of so much anxiety. It’s simply a case of learning about the most common challenges encountered, in order to find appropriate strategies that allow you to overcome them in your own preferred way.

A lack of awareness

One of the bigger shocks when it comes to coping with someone’s death is realising that probate exists as a process. According to research conducted by Scottish probate specialists, My Probate Partner, 39% of the Scottish public erroneously believe that a person’s property and assets are automatically inherited by named beneficiaries when they pass away, and 79% confessed that they lacked clear understanding of what probate is and what it actually entails.

The need to consider and potentially apply for probate to access a close family member’s money can be a difficult thing to come to terms with, amidst heightened emotions and the frenzied preparations that often accompany grief. Relevant services thus have a duty to boost public knowledge of the probate process, doing their utmost to help people to understand it before a time comes for them to deal with the process.

Unexpected costs

The same research also found that an overwhelming 90% of Scottish people underestimate how much probate could cost, with 55% believing it would amount to less than £1000, despite the fact that figures tend to average at between £3000 and £6000. It’s not the court application process itself that proves costly, but the associated legal support, with the majority of families choosing to rely on solicitors to manage the process for them to ease the administrative burden. Contrary to popular belief, however, a solicitor is only needed in a minority of cases.

Determining when a solicitor is actually required

In Scotland, the only scenario where a solicitor is absolutely necessary to get confirmation is when the deceased person’s estate is worth more than £250,000 and there is no Will. This is because of the special type of insurance policy required by the Sheriff Court - the insurers won’t issue bonds worth more than £250,000 if a solicitor isn’t managing the estate.

There are a few other scenarios when using a solicitor may be the preferred path, like if there are contentious issues or when the estate is very complicated with assets in different countries or unusual tax arrangements. Otherwise, as long as there is someone willing to do some administrative work, there are resources available online to help.

Unexpected delays and poor communication

Another frequent barrier to stress-free probate is delays. Particularly when solicitors are used, the process can take much longer than initially expected, especially when working with teams already dealing with high caseloads. Furthermore, solicitors tend not to prioritise communication, meaning you can be left without an answer for many days or even weeks, even to a basic question.

For many, these issues are a source of additional stress and frustration, drawing out the grieving process unnecessarily and making it more difficult to move on.

A difficult application process

In Scotland particularly, the court confirmation process is far from simple. For instance, a complete inventory of the deceased person’s estate(known as the C1 form) must be submitted, alongside a legal declaration that very little guidance is provided to help with. In around 10% of cases, a full accounting of the whole estate must be submitted to HMRC first using the IHT400 form.

All forms then need to be sent to the Sheriff Court closest to the deceased person’s former residence, provided that they resided in Scotland. Failing this, applications must go to Edinburgh. Because each court follows its own timelines and procedures, the application process can be difficult to navigate, with many people choosing to seek support from lawyers or independent probate support services to avoid going round and round in circles with the courts, that are not permitted to help when the estate is worth more than £36,000.

Even the terminology used throughout the process can be confusing, with ‘heritable property’ being defined as land or buildings, and ‘movable estate’ defined as money, investments, and possessions. In the event that heritable property is jointly owned, the executor must also decipher property title deeds in order to list the property correctly to transfer the ownership successfully.

Documentary pressures

If the above bureaucracy wasn’t enough, people must also obtain and register the deceased’s death certificate within eight days of their passing. A medical certificate from a doctor needs to be presented to the local council in order to achieve this, with many of the multiple organisations and departments that people are required to deal with requesting a physical copy before they are willing to allow handling of the accounts.

From bank accounts and direct debits to small-scale subscriptions that are easily forgotten, this can soon prove overwhelming for a grieving person, particularly when each public and private institution has its own procedures, and staff at the businesses they are dealing may not have been trained to deal with the situation with sufficient delicacy and compassion.

A smoother probate journey

Financial barriers aside, working with a solicitor can help to alleviate the administrative burden. The drawbacks of this are heightened costs, potential delays and a lack of personal control – something that can help certain people to cope. On the opposite end of the spectrum it is usually possible to deal with probate yourself. This allows for a sense of control and autonomy, ensures that everything is carried out in accordance with the deceased person’s wishes, and can drastically reduce delays and costs. Nevertheless, it can be too much pressure for some. However, a middle ground solution may be optimal, where the executor or relevant party still manages the process themselves, but under the more affordable and efficient guidance of an independent probate support service, like My Probate Partner.

Whichever route through probate you choose, it’s essential to ensure that it’s right for you. Confirmation in Scotland can be a convoluted and emotional process, but that doesn’t mean that everything needs to be out of your hands. There are different solutions and services out there – it’s simply a matter of gaining understanding, perspective and support that works for you.

Mike Davis is founder and director of My Probate Partner

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