Probate can seem like a daunting process, we hope that by putting together this guide you will gain a better understanding of what is involved and how it can help.
What is Probate?
The legal authority to administer the estate.
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.
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.
Understanding the Probate process
When someone dies somebody else (the Personal Representative or ‘PR’) has to deal with his or her money, property and possessions (the assets making up their estate).
There are legal rules about who can be the PR and this is determined by the names stated in the Grant of Representation which is an order of the Court giving one or more people the legal authority to act as PRs, or allows a professional organisation to be appointed to do the work for them. There are different types of Grant depending on the circumstances and who is to deal with the estate.
- The duties of the PR(s) are:
- To gather the estate assets
- File the Inheritance Tax returns and final personal Income and Capital Gains Tax returns
- Administer the estate
- Pay the debts of and charges against the estate
- Distribute the balance in accordance with the terms of the Will or the Rules of Intestacy.
- If the PR does not pay all the debts or gets the distribution wrong, he, she or they can be sued and may be personally liable for any tax due.
When is Probate required?
Probate is required in the following situations:
- When 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
*Banks and other financial institutions may use a higher threshold than £5,000 before they require evidence of the Grant of Probate to release the funds, so it is worth checking with these organisations exactly what they require.
How do I know if Probate is required?
Determining whether Probate is required may not be straightforward. To help you answer any questions you may have regarding probate and legal advice following a bereavement please call our free helpline on 0808 168 9607.
What is involved?
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.
How long will it take?
This depends on how complex the particular situation is, but it normally takes around 6 to 9 months to complete the process.
Does Probate apply to me?
We’ll help you determine the answers to all your initial questions regarding Probate:
- Explaining what Probate is and what you need to do if it is required
- Assisting you to establish whether the estate of the deceased will require Probate
- Explaining what you would need to do if Probate is not required
- Establishing who the Personal Representative(s) of the estate are and explaining their role, responsibilities and ultimate liability.
We can explain Probate and Estate Administration to you and can provide free legal advice which will allow you to make important decisions about what to do next. Call us on 0808 168 9607 for more information.