What is probate?

 What is probate and how we can help

The term probate means a legal document issued to one or more people (called the executors) by the probate registry authorising them to deal with the estate.

The probate registry must grant probate, known as the Grant of Representation, but can only do so after seeing legal proof that you are the executor.

Once granted the grant of representation proves that you are entitled to claim the assets of the deceased, not for yourself but in your capacity as personal representatives. You are then in a position to administer the estate and must follow the will and deal with the estate and beneficiaries according to the law.

There are two types of grant of representation:

  1. Probate- Issued to one or more of the executors named in the deceased will to deal with the estate.
  2. Letters of Administration with will- issued when there is a will but no executor has been named or when the executors are unable to apply or do not wish to be involved in dealing with the estate.

What if someone dies without leaving a will? *Intestacy*

Almost half the population dies without making a will. If there is no will the estate will be distributed according to the laws of intestacy.

If the estate is intestate letters of administration will be issued in place of the grant of probate.

Where do I obtain the will

Most people who prepare their own home made wills keep them at home, however willful or accidental destruction could have serious consequences so many testators keep their will in a bank or a safety deposit box. If the will was prepared by a solicitor or will drafter it will usually be kept at their offices.

If the solicitor is appointed as one of the executors he or she will expect to be involved in the administration of the estate. If the solicitor is not appointed as one of the executors, there should no reason for the solicitor to keep the will and they should realise it to you against your or the other executors signatures.

What if the will is missing

If you are in any doubt that the last will to be found is not the last will made by the testator you will need to undertake a thorough search of any possible place where the previous will could stored.

If a thorough search of the deceased papers and possessions fails to discover the will you should write to local firms of solicitors and banks who might have been employed to make or keep a will on the deceased behalf, If all enquiries fail the rules of intestacy will apply.

Why is a grant necessary

Organisations holding money in the deceased’s name will need to know who the money should be released to. The grant of representation is proof that the person named in it is entitled to collect the money.

The estate left when a person dies passes to the people named in the will. If there is no valid will then it will pass to the next of kin according to the rules of intestacy.

It is the responsibility of the person named in the grant to distribute to the estate to the correct people. The grant is proof that the person named in it is entitled to collect all monies and assets and distribute the estate.

Is a grant always needed

If the estate is very small, at the time of writing under £5,000, then a grant may not be needed. Even if the estate exceed £5,000 if may be possible to proceed with the administration without obtaining a grant. Different banks and building societies have different rules about the amount of money they will release without seeing a grant. Even if they do agree to release the funds they may attach conditions.

You will not usually need a grant when a house is held in joint names and it is clear that the house automatically becomes the property of the surviving owner. If you are in doubt on this point you may need to ask advice from a solicitor.

You will need a grant or transfer or sell a property that is held solely in the deceased’s name.

A property can be offered for sale immediately. However a sale cannot be completed until you have obtained the grant. It is probably best therefore to delay putting the property onto the market until you have some idea how long it is likely to take to obtain the grant.

Am I entitled to a grant?

There are rules governing who may be given a grant and whether or not one is issued will depend upon the exact circumstances in each case. If there is a will with named executors then these will be the first people entitled to a grant.

If there are no executors or the executors are unwilling to apply then the next person entitled to a grant is any person named in the will to whom the deceased has given his entire estate or the remainder of the estate after gifts have been paid. If the deceased has not made a valid will his/her next of kin should normally make an application for a grant in the following order of priority:

  • Husband or Wife
  • Sons or daughters
  • Parents
  • Brothers or sisters
  • More distant relatives

A grant cannot be issued to anyone under the age of 18 years. Illegitimate relatives may not be entitled to a grant with the exception of sons and daughters.

When more than one person is entitled to a grant they may all obtain a grant together. However a maximum of four applicants are allowed to apply. In most cases only one person needs to obtain a grant although there are certain circumstances when more than one person may decide to obtain a grant together.

If it is not possible to issue that grant then the probate then the probate registry will explain the reasons.

Can I ask a professional executor to renounce?

If a professional executor has been appointed they are entitled to make a charge for the work involved. The charges made by different firms vary enormously. Banks typically charge 4% of the estate. Solicitors typically charge 2% of the estate; if you would prefer to deal with estate yourself then you are entitled to ask a professional executor to renounce. However you cannot force them to do so. The only way to remove an executor is to make an application to The High Court. This is prohibitively expensive.

Can I apply for probate myself?

If the estate is simple then there is no reason why you should not apply for probate yourself about 1/3 of people decide to do this. However dealing with the administration of the estate can be surprisingly time consuming and many people find it very distressing to have to go through a deceased person’s papers on a daily basis over a period of several months. Consequently 2/3 of estates are administered by professionals.

If the estate is complex and or above the Inheritance tax threshold you would be well advised to seek advice from a solicitor and not apply for probate yourself

How do I apply for a grant?

There are five stages for applying for a grant. They are:

  1. Obtain the application forms from the nearest probate office.
  2. Choose where you wish to be interviewed.
  3. Complete the application forms.
  4. Return them with the death certificate and the original will. To the appropriate registry.
  5. To attend the interview.

What forms do I need to obtain?

The forms that you need can be obtained from the probate office and The Inland Revenue. You will need:

  • The probate application form. This asks for details of the deceased and yourself as an applicant.
  • Account of the estate, this form asks you to give a full account of the deceased estate. You will need to give a comprehensive list of all the assets and obtain a valuation for all the items shown, including any interest or bonuses which will be paid. Any money due to the deceased should also be included. You will also need to obtain a valuation for any property. If the estate is below the Inheritance Tax threshold then a valuation from a local estate agent will probably suffice, if the estate is above the Inheritance Tax threshold or close to the limit then it may be necessary to obtain a written valuation from a chartered surveyor. The value of household goods, jewellery and other belongings should be shown at the amount for which they could be sold.
  • Many of the forms can now be downloaded from the Probate Registry and the Inland Revenue websites.

What other documents should I send?

You will need to send:

  • The death certificate
  • The original will
  • Or any other document where the deceased expresses wishes about the distribution of his or her estate. You should always end the original will by recorded delivery. You should also keep a copy of it for your own records.

Where should I send the forms?

The forms and any other post should be sent to the Probate Registry where you wish to be interviewed or to the Probate Registry which controls the local office where you wish to be interviewed. Post should not be sent to local offices.

You should state on the probate application form in section 1. Which is the most convenient office for you to attend, once they have received your application they will send you an appointment for interview. The interview can take place at either the Probate Registry or one of its local offices. If you are applying for a grant for someone else who is unable to attend your local office for interview then it may be possible for them to attend an interview at a different office. However this will mean the issue of your grant will take longer.

What does the Probate Registry do?

The Probate Registry is responsible for making sure that an applicant is entitled to be given a grant and that any will that they produce has been properly made and signed. If there is any doubt as to whether the will left by the deceased is valid or if it appears the will has been altered or amended in any way. Then they may wish to interview one of the witnesses.

Once the grant has been issued the responsibility of The Probate Registry ends. They will not be able to assist you in dealing with the administration of the estate after that.

Why do I have to attend an interview?

An interview is necessary to verify that the details you have given are accurate. In order to complete your application you will need to swear an oath to confirm that the information you have given is true to the best of your knowledge and belief.

When will I be interviewed?

An appointment will not be arranging until The Probate Registry has examined your application. The Probate Registry will give you an interview as quick as possible. However if there is a back log of applications it may take a little while for them to grant you an appointment. If they are unable to give you an appointment within 2 weeks of receiving the application they will normally send an acknowledgement to confirm that you application has been received.

Will Inheritance Tax be payable?

The Inheritance Tax threshold is currently £325,000 for a single person and £650,000 for a married couple. If the estate is close to or exceed this limit then an account of the estate will need to be sent to the Capital taxes office after your interview. After the capital taxes office has examined the account they will notify you in writing the amount of Inheritance Tax payable. Arrangements for payment of the tax due will be explained to you at your interview.

The issue of the grant does not necessarily imply that the Inland Revenue agrees with all the values submitted. Further correspondence may take place when the account is returned to the Capital taxes office. Inheritance Tax becomes payable 6 months after the end of the month in which the deceased died; interest will be charged on unpaid tax from that date no matter what the reason is for the late payment.

In cases where Inheritance Tax is payable a grant cannot be issue until the tax has been paid.

Administering the estate

Once the grant has been obtained, you will be in a position to start to collect the assets within the estate and arrange for their sale or transfer to the beneficiaries. You will also be responsible for paying off all competitors and finding any unknown creditors. It is important to remember that as the executor or administrator of the estate you are legally liable for administering the estate properly and ensuring that the assets are distributed to the proper beneficiaries.

Call us to find for advice on whether you should apply for probate yourself or if that question What is probate is something you would like to discuss with a personal adviser call us.

For more information on what is Probate please call us on 0800 731 8722