Do I Need Probate?
What is Probate?
‘Probate’ is the term used to describe the legal process you have to go through when dealing with someone’s Estate after they die. An Estate is made up of all their belongings including their property, money, car, jewellery and anything else they owned; including their pets.
Although the term Probate is regularly used, what you actually need to apply for and obtain is a Grant of Probate, also known as a Grant of Representation – if the person who died left a Will. If they didn’t leave a Will, it’s called dying Intestate, and you’ll need a Grant of Letters of Administration.
To obtain the Grant, you’ll need to understand who the Personal Representatives of the Estate are. If there was a Will, the Personal Representatives will be the Executors named in the Will. If the person died without a Will, the Personal Representative will be the next of kin.
Before the Personal Representatives can deal with an Estate, which includes collecting in any money owed, paying any debts and realising any assets, they may need the Grant of Probate to show that they have the legal authority to complete this task.
There are a number of factors that decide if a Grant of Probate is required England or Wales. They are:
- If there is a property such as a house, building or any land owned by the person who died
- A financial institution, such a bank or building society requests Probate.
You should be aware that each bank and financial institution sets their own threshold, above which Probate is required. Some banks and building societies set their thresholds as low as £5,000 and some as high as £25,000. You will need to check with the specific bank or building society, but please note that you will need to provide proof that the account holder has died, usually with a death certificate.
How to Apply for a Grant of Probate
You can apply for a Grant of Probate yourself, or ask a specialist Probate Solicitor to do it for you.
There are many benefits to a Probate Solicitor completing the Probate process for you. For example, you will be asked to value the entire Estate, then to calculate and pay any outstanding Inheritance Tax (IHT) before Probate can be granted.
This means you’ll have to complete the correct IHT form and deal with HM Revenue & Customs (HMRC). If you don’t get this right, you are legally responsible for this submission and you could face a penalty. If the deceased has any Capital Gains Tax or Income Tax liabilities, you’ll also need to deal with HMRC for these.
You’ll also need to distribute the Estate to the beneficiaries, and prepare accounts for the Estate detailing all of the incoming and outgoing funds.
Instructing an experienced Probate Solicitor to complete the Probate process for you means that she/he can use all of their experience when applying for the Grant of Probate, and apply all possible Inheritance Tax breaks. This can only benefit the Estate and will take this long, drawn-out task off your hands at an already difficult time.
Once the Grant of Probate has been issued, the assets in the Estate will be dealt with according to the Will, if there was one or by the Intestacy Rules if they died without making a Will.
Dealing with Probate and the administration of an Estate at an already difficult time can be upsetting and overwhelming. Furthermore, Probate can be a long process. The Probate process can be a lot longer if the Estate is complicated or any beneficiaries cannot be traced. Without the expertise of a Probate Solicitor, it could take even longer.
At Simpson Millar we can give you guidance and support and tailor our Probate service to match what you need. We can either obtain a Grant of Probate for you or get the Grant and deal with the complete Probate process from start to finish.
For free legal advice call our Probate Solicitors
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