What is Probate? When is Probate Required?

Author:
Grace Serwanga
Partner, Private Client & Court of Protection
Date:
16/04/2019

Probate is a legal process which is often needed when a person dies. It gives an individual, or a group of people, the legal authority to deal with a deceased person’s property, money and possessions – known as their ‘Estate’.

To get Probate, the Executors named in the Will must apply for a Grant of Probate. If the deceased did not make a Will, their next of kin must get a Grant of Letters of Administration instead. Without a Grant, the deceased’s assets remain frozen.

For free initial legal advice get in touch with our Probate Solicitors.

Call us on 08002605010 or request a callback and we will help you.

When is Probate Required?

In England and Wales, Probate is not required every time a person dies. Typically, Probate is needed if the deceased:

      • Owned a property in their sole name or as Tenants in Common
      • Owned any other significant assets, and these are not passing to a surviving spouse

When is Probate Not Required?

Probate is not required if the deceased:

        • Is passing all their assets to a surviving husband or wife
        • Owns very little, known as a ‘small estate’

There is no set definition of a small estate. Banks and financial institutions will release funds from a deceased person’s account without Probate, but only if the asset is under a certain value. To complicate matters, each bank and financial institution has their own Probate threshold. Some require Probate if the account contains £5,000 or more, whereas others set a limit of £50,000.

For more detailed information see When is Probate Required?

How Do I Know if Probate is Needed?

If you are not sure whether Probate is required following your loved one’s death, contact our Probate Solicitors for free initial advice. After obtaining a few details from you, we can confirm whether or not Probate is required.

The Probate Process

If Probate is necessary, you need to check whether there is a valid Will. If so, it will name an Executor or Executors. These are the people who are responsible for dealing with the Probate process and administering the Estate. If there isn't a Will, responsibility falls to the deceased’s next of kin. This person is known as the Administrator.

The Executor or Administrator must then complete the following steps in the Probate process:

Step 1 – Calculate the Value of the Estate. This involves valuing all the deceased’s assets, getting a professional valuations for any assets thought to be worth more than £500. It’s also necessary to confirm the total sum of the deceased’s debts.

Step 2 – Calculate and Pay Inheritance Tax. The value of the Estate determines whether or not Inheritance Tax is due. If so, the Executor or Administrator must pay the Inheritance Tax before going any further with the Probate process. This could mean taking out a loan.

Step 3 – Apply for Probate. If there is a Will, the Executor must apply for a Grant of Probate using a PA1P form. If there is no Will, the Administrator must apply for a Grant of Letters of Administration using a PA1A form.

The correct Probate application form must be sent to the nearest Probate Registry (Court), along with: a certified copy of the death certificate, Inheritance Tax forms, the original Will and three copies (if applicable) and the Probate Registry fee.

Step 4 – Administer the Estate. Once the Grant of Probate or Letters of Administration is issued, the Estate can be administered. This means paying any outstanding debts or tax liabilities, selling or transferring assets, and finalising the deceased’s affairs.

Step 5 – Advertise for Creditors. To ensure all the deceased’s debts have been paid, Statutory Notices should be placed in the local newspapers and The Gazette. These should remain in place for at least 60 days.

Step 6 – Prepare Estate Accounts. These accounts must show what has come in/gone out of the Estate, and the final balance due to each beneficiary. A copy of the Estate accounts should be given to all the beneficiaries.

Step 7 – Distribute the Estate, either according to the terms of the Will, or the Intestacy laws. This can only be done if there are no disputes or other issues to resolve. Also, if any beneficiaries are missing, the Executor or Administrator must find them.

The entire Probate and Estate administration process can take between nine months to a year or more to complete.

Do I Need a Probate Solicitor?

You don’t have to use a Probate Solicitor when applying for and dealing with the Probate process, but lots of people do. There’s a lot of time and paperwork involved, along with complicated legal and tax matters; which may also include Capital Gains Tax and Income Tax. If any mistakes are made, an Executor or Administrator can be held personally and financially liable.

With our Full Probate Service, you can hand all the work over to us. We deal with the entire Probate process for you, and our Probate fees are paid out from the Estate.

Contesting a Will / Contentious Probate

We can also help if you want to contest a Will (called Contentious Probate), which is when a dispute arises at any point during the Probate process. This can happen when:

          • There is a mistake in the Will
          • Someone challenges the Will
          • There is a disagreement between the beneficiaries and the Executor/Administrator

Disputes can significantly delay the Probate process. This means the beneficiaries must wait longer to receive their inheritance.

If you want to challenge a Will, or you are dealing with a contentious Probate issue, expert legal advice is strongly recommended. Our Contentious Probate Solicitors can help you.

For free legal advice call our Probate Solicitors

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