There is no probate in Scotland

The word does not appear in Scots law. What you need is confirmation, granted by the sheriff court, which is the document that gives the executor authority to deal with the deceased’s assets. Banks, insurers and the Land Register will ask for it.

You may not need it at all for a very small estate, and many banks will release modest balances without it. Ask each institution what its own threshold is before assuming you need to apply.

If you want the whole process set out from start to finish, read our complete guide to probate and confirmation in Scotland. If your question is simply how long it will take, see how long confirmation takes in Scotland.

Who the executor is

If there is a will, it will normally name one — an executor nominate. If there is no will, or the will names nobody who can act, a family member applies to the court to be appointed, which is an executor dative, and that usually requires caution, a form of insurance guaranteeing the estate against loss.

Being an executor is a real job with real liability. You must ingather the estate, pay the debts, deal with tax, account to the beneficiaries and distribute correctly. If you get the distribution wrong, you can be personally liable to whoever should have received it.

Legal rights — the Scottish difference that catches people out

In Scotland you cannot disinherit your spouse or your children entirely. On death, a surviving spouse or civil partner and the children have a claim called legal rights over the deceased’s moveable estate — broadly everything other than land and buildings.

This applies whatever the will says. A will can leave the house and the whole estate to one person, and a child who is left nothing can still claim their legal rights share of the moveable property.

Two consequences. If you are an executor, you must not distribute the estate without dealing with legal rights, because you may end up paying twice. If you have been left out of a parent’s will, you may well have a claim without needing to challenge the will at all.

If there is no will

The estate is distributed under the rules of intestate succession, which are not the same as the English rules. A surviving spouse or civil partner takes prior rights first — an entitlement in the family home, its furnishings and a cash sum — then legal rights are calculated, and only then does the remainder pass under the statutory order.

In many modest estates prior rights absorb the whole thing, which is why an unmarried partner with no will is so often left with nothing. Cohabitants have a separate and strictly time-limited claim, which is dealt with on its own page.

How long it takes

Straightforward estates are commonly wound up within six to twelve months. Confirmation itself is usually granted within weeks of a complete application, and the delay is almost always elsewhere: valuing assets, waiting on institutions, dealing with a property sale, or resolving inheritance tax.

Executors are generally advised not to distribute for six months after death, because that is the period within which certain claims against the estate may emerge.

Common questions