How to manage probate process
What is probate?
A Grant of Probate is an order of the Court, giving one or more people the legal authority to administer the estate of the deceased, in order to distribute it correctly to the beneficiaries
Probate involves a series of interdependent legal, tax and administrative activities that must be carried out in order for the estate to be administered correctly
It involves communication with many parties including the Court, HM Revenue and Customs, and all related financial institutions
Essentially it involves collecting all assets, settling all debts and tax liabilities and correctly distributing the remainder of the estate to the beneficiaries in accordance with the Will, or Rules of Intestacy
Care and attention must be taken to avoid mistakes being made at every stage in the process, as the Personal Representative is responsible and ultimately liable
Who can apply for the Grant of Probate?
The people who have the right to apply for a Grant of Probate are the Personal Representatives (PRs) of the estate
PRs are either the Executors named in the Will, or the next of kin following the Rules of Intestacy if there is no Will
There are different types of Grant depending on the circumstances and who is to deal with the estate.
The two main types of Grant of Representation are:
- The Grant of Probate, where there is a Will
- Letters of Administration, in situations where there is no Will
The people named in the Grant of Representation are legally responsible and ultimately liable for the administration of the estate of the deceased
The decision about who is named on the Grant of Representation is a very important one, because it carries this responsibility
When is probate required?
Probate is required in the following situations:
- When a property is held in the sole name of the deceased, or as tenants in common
- When the deceased held assets typically worth £5,000 or more with financial institutions
- When the financial institutions holding assets in the sole name of the deceased require a Grant of Probate for the funds to be released
- When the deceased benefited from a trust during their lifetime
- Probate differs depending on whether or not the person died having made a will or not
- If they have made a will, then the will is enforced by the executors
- If they have not made a will and died intestate, the laws of intestacy apply
If there is a will, it is carried out by the nominated executors
The terms of any valid will must be adhered to. It is the role of the executor to ensure that the will is carried out as specified
An executor is a person, or company (such as a bank or firm of solicitors) named in a will to carry out or execute the wishes of the deceased and distribute the estate upon death
In England and Wales, a person must be at least 18 to be an executor.
The role of executor is a complex and often time consuming one
There may be up to a maximum of 4 executors and this is often the case where there may be disagreements over the estate.
If you have not been named, but wish to act as executor you can apply for an administrative grant to the Probate Registry.
If you are an executor, then this is for life. Claims can come up in the future and you should be able to deal with them
If at any point you feel you can no longer act in the role of executor, then you must inform the Probate Registry in writing.
The executor has a list of tasks they are legally obliged to carry out
Probate involves a series of interdependent legal, tax and administrative activities that must be carried out in order for the estate to be administered correctly
It involves communication with many parties including the Court, HM Revenue and Customs, and all related financial institutions
You can ask estate agents to value the property and auction houses, or house clearance companies to value the contents
Care and attention must be taken to avoid mistakes being made at every stage in the process, as the Personal Representative is responsible and ultimately liable.
For further advice, you can contact your local CAB, or contact a local solicitor or financial advisor
If there is no will, the rules of intestacy apply
When a person dies without leaving a valid will, their property (the estate) must be shared out according to certain rules
These are called the rules of intestacy. A person who dies without leaving a will is called an intestate person
Only married or civil partners and some other close relatives can inherit under the rules of intestacy
If someone makes a will, but it is not legally valid, the rules of intestacy decide how the estate will be shared out
Married partners, or civil partners, inherit under the rules of intestacy only if they are actually married or in a civil partnership at the time of death
So if you are divorced or if your civil partnership has been legally ended, you can’t inherit under the rules of intestacy, but partners who separated informally can still inherit under the rules of intestacy
Beware companies charging high fees for probate
You should expect to pay around 2% of the value of the estate for probate as a general rule