Probate is the legal process of settling the estate and affairs of a deceased individual.
This typically requires the executor to notify the relevant authorities and organisations of the individual’s death, to settle any outstanding debts, and to distribute and transfer the remainder of the estate in accordance with the deceased’s wishes.
Where there is no valid will, the estate would be dealt with under the intestacy rules, which determine who is to benefit from the estate.
What is an executor?
The executor of a will is a person or persons appointed by the deceased in the will to handle the legal, financial and tax affairs relating to the estate. Executor powers are defined by law but it is possible for these to be extended under the terms of the will.
The executor could be a family member, friend or colleague or they may be a professional, such as a solicitor. Professional executors will in most cases charge for their services, usually out of the estate. Executors may also choose to elect a professional.
It is possible to nominate more than one person as ‘joint executors’. This can be a helpful option to share the administrate burdens of executing the estate.
Executors unwilling to carry out their duties have the option to delegate their responsibilities to another party who is known as the ‘Administrator’.
What is an administrator?
Administrators are appointed by the Court where there is no will or where this a will and no executors have been named, or those that have been named are deceased or unwilling to take on the role of executor.
Collectively, executors and administrators are known as ‘personal representatives’.
What is a grant of probate?
As a named executor, you will first need to apply to the Probate Registry for a grant of probate before you can transfer any assets or carry out your duties in executing the will.
The grant of probate confirms your legal authority to administer the estate.
To apply for a grant of probate, you will need to complete Probate Application Form PA1. You will also need to complete the HMRC inheritance tax form.
The next step it to arrange an appointment at your local Probate office where you will need to swear an Oath.
Once your Probate or ‘Letters of Administration’/’Grant of Representation’ has been granted and you have paid any inheritance tax, you can assume legal authority for administering the estate.
Note that if no will is in place then a Grant of Letters of Administration will be issued by the Probate Registry.
When is probate needed?
Probate is needed in a number of circumstances. For example, if the deceased owned property, including buildings and land, requiring ownership to be transferred to another party.
Likewise, banks and other financial institution where the deceased held assets such as investments and shares will require a grant of representation as proof of legal authority to release or transfer funds where the value of the assets is above the organisation’s own threshold. As such, you will need to confirm with the institution the minimum level as below this, you may not need to have the grant of probate.
Exemptions to probate may also apply where certain conditions are met, which include:
- If the deceased has a living partner or spouse and assets are jointly held.
- If the Estate doesn’t include land, property or shares, and financial savings were in joint names.
- The estate (dependant on the value) is left to a charity.
What are the executor’s duties under probate?
With the grant of probate issued, you can start the process of administering the estate. This may involve selling the deceased’s assets, calculating and settling any debts such as taxes and estate administration costs, completing and filing relevant tax returns.
The extent and nature of your duties under probate will largely be determined by the size and complexity of the estate, the directions contained in the will and the liabilities owed by the deceased.
As such, you will need to have a clear understanding of the assets owned by the deceased, the value of the estate and who the beneficiaries and creditors are.
Complicating factors can feature, for example where the estate includes overseas property, beneficiaries who are minors or businesses, in such instances taking legal advice can ensure you are following the correct procedures in administering the estate.
To calculate the value of the estate, identify all of the assets owned by the deceased – this includes property, possessions, shares, pensions, other investments – and all debts.
You will be required to keep clear records of the estate account and all transactions, this will make it easier to calculate what remains to be distributed to the beneficiaries, either in accordance with the will or under the intestacy rules where no will exists.
What if the will is being contested?
If a will is being contested before probate, a caveat will need to be placed on the estate by the contesting party to prevent probate being issued. You will not be able to get the Grant of Probate before the caveat runs out.
You will need to try to resolve the issue with the party making the claim on the estate. Formally, you could request the party to state interest in the estate of the deceased (‘appearance’).
Once this has been entered, the caveat can then only be removed by a registrar a summons is issued, or a probate action in the estate is issued resulting in court proceedings.
The caveat can be withdrawn by the issuer by writing to the registry if the ‘appearance’ has not been registered.
Where there is no agreement, legal advice will be critical to try to arrive at a resolution with minimal expense and delay
It is possible for a will to be contested after probate, but the process becomes substantially more protracted. Take legal advice on your options as executor if you are facing a contested will.
How much does probate cost?
In England and Wales, a sliding fee scale applies for probate fees. The appropriate fee will be determined by the value of the estate. For example, estates under £50,000 have no probate fees to pay, whereas those valued over £1 million incur probate fees of £8,000.
Probate fees are settled out of the deceased’s estate before being distributed to beneficiaries.
Why take legal advice on probate?
Probate is a complicated area of law, and the administrative burdens placed on executors to handle all legal, financial and taxation issues relating to an estate can be overwhelming if you are not familiar with the rules in this area.
Even in the most straight forward of estates, probate can generally take anywhere between 6 – 9 months to complete.
Taking professional advice from a probate specialist can help remove the stress placed on you while ensuring the correct process is followed and all duties discharged in accordance with the probate rules and the terms of the will.