Probate is the legal process of dealing with the estate of someone who has died. The term is used to describe both the grant of probate itself and the process involved in obtaining the grant.
Probate is granted when a valid will has been left by the deceased.
It’s your responsibility to obtain the grant of probate if you’ve been named as an executor in the will. Probate can be granted in favour of one or all of the executors named in the will.
With the grant of probate you can deal with the deceased’s assets. These assets can include property (such as buildings or land), money and possessions.
If the deceased did not leave a valid will, you will need to apply for letters of administration instead of a grant of probate.
Should I obtain probate?
People usually name family or friends as executors of their estate, known as lay executors.
However, some people may appoint professional executors, such as a solicitor, who will carry out the entire probate process. Professional executors will expect to be paid from the proceeds of the estate for acting as an executor.
First of all, you should check the will, which should state who is named as executor of the estate. The will should also state how the estate should be divided up and gifts that should be granted. If there’s no will, the intestacy rules will apply, which means that your next of kin will inherit.
When should I apply for probate?
As an executor, before you can claim, transfer, distribute or sell of any of the assets, you’ll need to apply for a grant of probate.
Anyone who has an interest in the estate can only receive their inheritance after a grant has been obtained.
Do I really need a grant of probate?
In some circumstances, a grant of probate isn’t required.
Example: Betty’s husband passes away. All of the assets, including a house and a savings, were held in joint names. Because the assets were held jointly, they will pass to Betty.
Example 2: Jessica’s estate only has £2,500 in deposit account. She does not own any land, property or shares.
In the two above examples, you would not normally need to obtain a grant of probate but it is best to seek out a solicitor experienced in probate who can advise you on your particular circumstances.
As mentioned, if there is no valid will, then you will need to apply for letters of representation.
How do I obtain a grant of probate?
There are two options. First, you can fill in the relevant forms and deal with the Probate Registry yourself. Although this is the cheaper option, it can be very time consuming and sometimes complicated.
Second, you may want to appoint a probate solicitor to act on your behalf. This can be necessary for complicated estates but is more expensive that applying for probate yourself. It will also take the burden of dealing with the estate off of yourself.
There are three main stages to obtaining the grant of probate and dealing with the deceased’s estate.
Stage 1: Investigating the estate
If you decide to carry our probate yourself, you must first assess the size of the estate.
This includes identifying all of the deceased’s assets, including property, possessions and investments (such as stocks or shares). You must also identify all of their liabilities, which can include debts from loans and utility bills.
You’ll need to contact any banks or building societies where the deceased held accounts, along with insurance companies and any other relevant organisations. This is to make sure you obtain proper valuations for the assets.
During this stage, you’ll also need to verify the beneficiaries’ entitlement to the estate (those who will inherit under the will) and obtain any necessary identification documents from them.
Stage 2: Tax and applying for the grant of probate
As an executor, you’ll need to complete tax returns for the estate. This will involve working out whether there are any tax reliefs or allowable deductions for the estate and whether inheritance tax will need to be paid.
You may need to pay Inheritance Tax to HM Revenue & Customs (HMRC). The form that must be filled in varies depending on your particular circumstances, including the estate’s size. A solicitor can advise you on which form needs to be filled in and can help you complete the form correctly.
Once the tax return has been completed and filed at HMRC, you should make an application to the Probate Registry for a grant of representation. This document confirms that you have the legal authority to administer the estate.
HMRC and the Probate Registry can raise issues with the tax return or the application for probate. If you have appointed a solicitor to carry out probate for you, they will deal with this.
Stage 3: Administration of the estate
You can only move on to this stage when you have obtained a grant of probate.
During this stage, you will need to gather in all of the assets mentioned in the will and distribute them to the beneficiaries in accordance with the terms of the will.
You will also be required to liquidate (sell) the deceased’s assets and settle any liabilities.
You will also need to produce a final tax return for the deceased. This includes accounting to HMRC for any further Inheritance Tax, any Income Tax or Capital Gains Tax that is due to or from the estate.
As part of this stage, you’ll need to produce final estate accounts for the beneficiaries. These accounts document all of the payments into and out of the estate. They also show the balance remaining for distribution to the beneficiaries.
This part of the process can be complicated and you may need to seek out a solicitor specialising in probate law who can help you through the process and tackle any legal and tax issues that may arise.
Assuming there are no other issues that have arisen, such as challenges to the estate or an issue preventing distribution, the final part of the process involves dealing with the remainder of the estate. This means distributing the balance of the estate funds to the beneficiaries.
Can I stop a grant of probate?
In some circumstances, you may want to stop the issue of a grant of representation.
This could occur where:
- You do not believe that a will actually exists or there is a will but there is real concern that it is not valid
- You suspect there has been fraud or undue influence
- The executor of the estate refuses to show you a copy of the will
- The entitlement of the executor who is applying for the grant of probate is in dispute
- You are concerned that the assets may be disposed of in a way that’s contrary to what the will has set out
To stop probate from going ahead, you’ll need to submit a caveat to the Probate Registry.
You must be over 18 years old to submit the caveat and it will cost £20.
The caveat remains in force for six months from the date it’s entered at the Probate Registry.
If you want to extend it again, you’ll need to apply to extend it for six months in the month before the caveat is due to expire. A further court fee will be required.