Confirmation In Scotland - Time Limit?

TCA

My dad sadly passed away recently, unfortunately without a will in place. He's survived by my mum, myself and my sister. We're in Scotland. 

I've been ploughing through everything I can find online and as far as I can gather there's no time limit to complete confirmation. Given our situation, it has me wondering whether it's worth doing it at all at this stage, so would welcome any thoughts.

As I understand it, because there's no will, one of us (likely my mum) would need to apply to the sheriff court to be appointed executor dative. By the intestacy rules, the whole estate would pass to my mum and be exhausted under prior rights of spouse, so no bond of caution would be required.   

The family home is valued below the £473,000 threshold and likewise the value of any furniture wouldn't be valued at over £29,000. There's less than £50,000 in the joint bank account, so that passes to mum as well and the bank have confirmed it can revert to a sole account without a certificate of confirmation. There are no other assets other than the car (value maybe £4k), which is currently being transferred to my mum as the new registered keeper.

Dad had 3 small private pensions (maybe £5k per year to him) and each should provide 50% of that to my mum as his widow. There's been no indication from any of the pension companies that confirmation is required and all I've been asked for so far is the death certificate, my mum's birth certificate and their marriage certificate.      

The property is on the old sasine register and looking at the deeds, it appears to be solely in my dad's name with no survivorship clause, so title doesn't pass automatically to my mum. I found a post on MSE where someone in a similar situation had asked Land Register of Scotland if there was a requirement to transfer title and he was told the property could be left in his late father's name until it eventually passed to him via his mother. I haven't managed to find anything definitive to confirm this.

My mum doesn't currently have a will but this is something we'll get sorted. It will (presumably) name myself or my sister as executors (or both) and equal beneficiaries to her estate. Hopefully that's a long time away but I'm currently trying to find out whether there's a need to complete confirmation for my dad now, and if not, what the ramifications would be of waiting.

If we wanted or had to sell the property at any point, we'd obviously need to complete confirmation for my dad and transfer title accordingly. So this can't be avoided. If we didn't transfer title straight away to my mum however, at the time of her passing it's likely that without the property in her ownership, she would fall under the small estates rule, so no confirmation would be required for her. So it appears that we could perhaps avoid going through the confirmation process twice and all that entails?

Can anyone shed any light on this?

If we didn't carry out confirmation for my dad and transfer property title to my mum, I appreciate that when my mum dies the bond of caution on my dad's estate would likely come into play because there would no longer be the spousal exemption.

Are there any other considerations?

The only other thing I can think of is that should my mum require to go into a care home in later years, there may be implications if the property isn't in her name. I haven't read too much about this but did pick up on something called beneficial interest which may mean the title of the property would have to be transferred to mum anyway so we could sell the house to fund her care. That of course isn't an issue, but admittedly it's not something I have any knowledge about as of yet. Of course mum may never require a care home which could possibly mean we wouldn't require confirmation of dad's estate until she passed away.

All a bit of a minefield, so would be great to get some pointers on all this after days spent Googling.

Thanks in advance.

user1977

You can’t avoid getting confirmation for dad’s ownership of the house.

And I suspect your sources about “beneficial interest” are English, which might be confusing matters. No such thing in Scotland.

Keep_pedalling

@buddy9 is our Scottish expert, most of the Sassenachs on this board are not that clued up on the more complex Scottish inheritance laws. 

buddy9

Transferring the house title is separate to obtaining confirmation. ROS normally advises that registration can be deferred.

There is no benefit in delaying confirmation, but some negatives if you do delay.

Because prior rights exhaust the estate, mum is the only person entitled to be appointed executor dative. And as you say, a bond of caution is not required.

If there is no confirmation issued for dad, and then mum dies there would be a need for double confirmation. First the executor applies for confirmation for mum, then that person applies for appointment as executor dative for dad as representative of mum (a bond of caution will be required) then applies for confirmation for dad.

A decision not to apply for confirmation would not place your mum’s estate in the small estate category.

TCA

Thanks very much @buddy9. That's very informative. I appreciate the quick reply. 

I had a slim hope that with no confirmation for my dad, the property would perhaps remain in limbo in his estate and my mum's position on her passing would be considered exclusive of the property.

I wasn't aware that if my mum died, that any executor-dative appointed for my dad's estate would be as a representative of mum. I was working on the basis that my sister or I could be appointed executor-dative in our own right, because we would be entitled to inherit part of the estate. Is this "as a representative of" position purely down to the fact that prior rights exhaust dad's estate?

buddy9

That would be correct. Where the intestate estate exceeds the prior rights entitlement, then children can apply to be executor dative (but would need a bond of caution).

TCA

Thanks again. I'm surprised prior rights comes into it in a situation where the spouse is deceased. I was thinking if confirmation of my dad's estate was carried out after my mum passed away, then the laws of intestacy would split my dad's estate equally between me and my sister and either of us could apply to be executor-dative. Just seems strange that the law would have us do this as a representative of mum, if she was longer with us and therefore not a beneficiary as such, by the laws of intestacy. 

Difficult stuff to get the head round. 

TCA

I think the bit I'm missing in my head is that at the time of my dad's death there was a surviving spouse, therefore my mum's estate would inherit if she passed away.

So if confirmation of my dad's estate hadn't taken place before mum passed away, it wouldn't matter, as her estate was still a beneficiary? 

My misconception was that after mum's death, dad's estate could be treated as "no surviving spouse", with my sister and I as the only beneficiaries, therefore leaving mum under the small estate umbrella, avoiding confirmation.

buddy9

Mum is the beneficiary of dad’s estate. Succession entitlement is determined at time of death and cannot be manipulated by deferring an application for confirmation.

Savvy_Sue

I am a mere Sassenach, but would I be right in thinking that getting a written valuation for Dad's house as at his date of death would be sensible, regardless of when a sale might take place, or who might ultimately inherit? I believe it would be a good idea if south of the border.

TCA

Thanks Sue, yes. A valuation of the property will be required as part of the confirmation of dad's estate. I was reading up on that very aspect today to find out whether it had to be a professional valuation by a surveyor or not. I gather it does if the estate is going to be liable for inheritance tax. In our case my mum inherits everything and no tax will be payable, so I believe we might be able to use a more informal valuation, for example from an estate agent. I need to investigate further however.