The Probate Process Explained

Author:
Dan Pinder
Wills, Trusts and Probate Solicitor
Date:
13/08/2020

When someone dies in England or Wales and there is a valid Will, the responsibility to sort out their Estate will fall on the named Executors. The Executors will need to decide if they need to apply for a Grant of Probate. Once approved by the Court, this document gives the Executors the legal authority to deal with the deceased’s Will.

If you’ve been named as an Executor in a deceased person’s Will, then you can take on this role yourself or ask a Solicitor to do it for you. If there is no Will, another option you have is to apply to the Probate Registry (Court) to become the Administrator of the Estate. This would then give you the legal right to administer their Estate.

The Probate Process in England and Wales

The Probate process can be broken down into the following stages:

  1. Check if There is a Will

The first thing you need to do is check whether the deceased left a valid Will or not. If they did, and you’ve been named as Executor, then you’ll need to establish if you need to apply for the Grant of Probate. This can take around 6 weeks to be issued. If there is no Will, see What to Do When Somebody Dies without a Will.

  1. Identify and Value the Assets

To determine the value of the Estate, you’ll need to identify and value all the assets that were in the Estate at the date of death. This can include:

  • Property
  • Bank accounts
  • Pensions
  • Shares
  • Dividends
  • Life insurance
  • Cars
  • Personal possessions
  • Any liabilities such as debts owed, including telephone and broadband bills, insurance, utility bills, council tax and income tax

You’ll need to consider four main tasks when valuing an Estate:

  • Contact organisations such as banks and utility providers about the deceased person’s assets and debts. Most organisations will require documentation to prove that you have the authority to deal with the assets. For example, the death certificate and the Will. Some organisations, such as banks, might also require a copy of the Grant of Probate.
  • List the person’s assets including possessions such as their house, furniture, jewellery, finances and other possessions.
  • Calculate the Estate’s value to see if the total is above or below the current Inheritance Tax nil rate band of £325,000. The person who died could benefit from a transferable nil rate band, a residential nil rate band or both. Our Probate Solicitors can advise you on this.
  • Assets such as property, cars and jewellery will need to be professionally valued, as you will have to report the Estate’s value to HMRC.
  1. Paying Debts and Taxes

As Executor or Administrator of the Will, you must pay off any outstanding debts or payments owed by the deceased person. This can include:

  • Income Tax
  • Capital Gains Tax
  • Inheritance Tax (for which the correct tax forms need to be submitted)
  • Any overpayments of benefits and pensions paid to the person who died

Inheritance Tax is a tax on the Estate of someone who has died. Whether or not you pay Inheritance Tax depends on a few things. See Inheritance Tax and Probate Explained.

The standard Inheritance Tax rate is 40%. Inheritance Tax has to be paid within 6 months of the person’s death. The Estate might be able to reduce the Inheritance Tax rate to 36% depending on the size of charitable giving and value of the Estate. We can give you advice on Inheritance Tax Planning and charitable giving.

You can either pay the Inheritance Tax through your own bank account, a bank account of the person who died, or claim the money back from the deceased’s Estate (this can only be done after Probate).

  1. Selling and Distributing Assets

This stage can be straightforward or difficult depending on the size of the Estate and type of assets. For example, if you’re wanting to sell the deceased’s property, there can sometimes be issues finding a buyer. For more information see selling a Probate property. If the property is abroad, then you’ll need to work with foreign Lawyers and property agents, which can add time onto the Probate process.

Once all claims, debts and expenses have been paid, the Executor can then begin the process of distributing the deceased’s assets to the beneficiaries. This will either be done according to the wishes of the deceased, as set out in their Will, or if there is no Will, it’ll be decided by the Rules of Intestacy.

How Simpson Millar Can Help You

Our Full Probate Service will manage the Probate process and the Estate administration for you. or, we can do as much or as little of the work as you need and our legal advice will always be tailored to your particular circumstances.

For free legal advice call our Probate Solicitors

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