Demystifying Probate
Catherine Alexander
Partner
What is probate?
Probate is the legal and financial processes involved in dealing with the property, money and possessions (the estate) of a person who has died. During probate, if there is a will this is validated, and confirmation granted as to whom has the legal authority to administer (claim, transfer, sell or distribute) the estate.
Do you have to apply for probate?
Whether or not you need to apply for a grant of probate depends on the financial situation of the person who died, it is usually needed when the person who died owned property or significant assets in their sole name. Probate also does not depend on whether there is a will or not, but depending this, the terminology used is slightly different. If the person who has died left a will the document issued will be a grant of probate, if they did not leave a will, a grant of letters of administration is issued.
What is considered a small estate?
If the estate is small, with no property and less than £5,000 in the bank, it is likely that this can be dealt with without probate. If this is the case, check with the specific bank or financial institution in the first instance and find out what there probate threshold is.
Who is responsible for applying for probate?
If the person who died left a valid will, this will name one or more executors, and it is their responsibility to apply for probate. If there isn't a will, then inheritance rules called the rules of intestacy will determine the personal representative whose responsibility it is to get probate.
Do you have to act as the executor if you are named in the will?
No. You can give up all rights to act as executor, or if there are other executors named in the will you can have your 'power reserved', which allows the other executors to act while giving you the option to act within the probate process at a later date if you want or need to. You can also instruct a probate solicitor to complete probate for you if you wish. You can also choose to instruct a probate solicitor to complete the probate work for you.
What are the stages of the probate process?
Identification of the deceased’s assets and liabilities in order to determine the value of their estate, verifying who is entitled to inherit from the estate (the beneficiaries), and obtaining the necessary identification documents for those beneficiaries.
Payment of any applicable Inheritance Tax to HM Revenue & Customs (HMRC), submitting the Inheritance Tax return, and applying to the Probate Registry for the grant of representation.
Once the grant of representation has been issued, the deceased’s assets can be sold, their liabilities settled, and the final estate administration expenses and accounting to HMRC for any further Inheritance Tax, Income Tax or Capital Gains Tax due to or from the estate paid.
Preparation of estate accounts for all payments into and out of the estate, showing the balance left for distribution to the beneficiaries.
Barring any challenges to the estate or other issues, the assets can now be transferred to the beneficiaries according to the terms of the will or or the rules of intestacy.
How long does probate take?
Obtaining the grant of representation (probate or administration) and administering an estate normally takes between 9-12 months.
If you have any questions about probate our advisers can help. Please contact us for information on our probate services or a no obligation discussion of your situation.
This article isn’t personal advice. If you’re not sure whether a course of action is right for you, ask for financial advice.
