The Executors of an estate do not immediately have authority to deal with the assets owned by a deceased individual and the estate is frozen until Confirmation (the Scottish equivalent of Probate) has been obtained. Confirmation is not a requirement in all estates and will depend on the assets held by the deceased.
The Application for Confirmation is prepared and submitted to the Sheriff Court. In most cases where a person dies without leaving a Will (i.e. intestate), the Executors are required to obtain a Bond of Caution before the Sheriff Clerk will grant Confirmation.
A Bond of Caution is a specific type of insurance policy. It is designed to protect beneficiaries from incorrect distribution of the estate by the Executors.
Traditionally a Bond of Caution was required in all estates where a person died without leaving a Will with only one exception; where 100% of the person’s estate passed to their surviving spouse under the intestacy rules set out in legislation.
Some of the provisions of the Succession (Scotland) Act 2016 have recently come into effect to bring in the following changes to Bonds of Caution:
- the spouse exemption has been extended to civil partners
- a Bond of Caution is no longer required in intestate estates where the total value of the estate is below £36,000
- the Scottish Government has been granted powers to enact further regulations to modify or abolish the requirement to find Caution so we may see further changes in the future.
The cost of a Bond of Caution depends on the total gross value of the estate but can range from a few hundred pounds to over a thousand pounds. Such an expense would not be incurred if a person dies leaving a valid Will. Our advice therefore is to put a Will in place now.
In most cases our fee for putting a Will in place would be less than the expense of your Executors having to obtain a Bond of Caution in the event that you die without leaving a Will.
Having a Will would also allow you to choose your Executors, decide who you wish to benefit from your estate and give you the opportunity to undertake valuable Inheritance Tax planning.
For more information on putting a Will in place, please contact a member of our Private Client team who would be happy to discuss this with you.
