What Exactly Is Probate?
Probate can appear complicated and having to go through the process with no guidance is daunting. It is for this reason that we have compiled all the essential information regarding the probate process so you don’t have to go through it completely alone and without any information.
What is Probate?
Probate is the legal process of dealing with the administration of an estate on behalf of a person who has died. This generally involves making sure all debts have been settled and assets have been distributed as documented in the will. When someone ‘applies’ for probate, they are requesting permission to carry out the wishes as they are stated in a persons will. However, the term also applies to the whole process of settling someone’s estate.
If you have been named as the executor of the will, there are specific rules that determine how you notify the authorities and distribute the estate.
Grant of Probate
For permission to manage this process, you’ll need to apply for a grant of probate (or grant of confirmation in Scotland). The Executor of the will uses this grant to prove they are legally entitled to access funds, organise finances, and gather and distribute the deceased person’s assets as set out in the will.
What is an Executor?
The executor of a will is the person named in a will to administer the estate of the deceased (the “testator”). An executor becomes the ‘legal personal representative’ of the estate. The person named as executor has the right to decline the position and if this happens, they should notify the probate court registry immediately. No-one is obligated to accept the position.
Do I Need a Grant of Probate?
Probate is required by law when the deceased leaves a valid Will and owns property. Property includes the person’s home, any other properties, buildings or land. Probate is also needed if a financial institution (such as a bank or building society) requires a ‘Grant of Probate’ in order to release funds. A grant of probate is almost always needed when the deceased leaves one or more of the following:
- £10,000 or more
- Stocks and/or shares
- Certain insurance policies
- Property or land owned alone or as ‘tenants in common’
In most cases above, the bank or financial institution will ask to see the grant before handing over control of the assets. In circumstances where the estate is small, some organisations, like insurance companies and building societies, might release the money to you.
You may not need a grant of probate if the deceased:
- Left less than £10,000
- Owned everything jointly with another person and everything passes automatically to them.
To find out whether or not a grand is needed, the executor (or administrator) should write to each institution and inform them of the death, enclosing a photocopy of the death certificate and will if there is access to one.
Whilst not every estate will require probate, all estates need administration, whereby a person’s legal and tax affairs are dealt with after they’ve died.
Dying Without a Will
If someone dies without a will, they are known as having died intestate. If this is the case, a close relative of the deceased can apply to the probate registry for permission to deal with the estate. They will have to apply for a ‘Grant of Letters of Administration‘. If the grant is given, they are then known as ‘administrators’ of the estate. Similar to the grant of probate, the ‘grant of letters of administration’ is a legal document which confirms authority to deal with the deceased’s assets.
In some cases, for example, where the person who benefits is a child, the law states that more than one person must act as the administrator.
How Does it Work?
Executing a will can be a complicated process. How it is done will depend on whether you carry out the process yourself or appoint a professional (usually a solicitor) to act on your behalf. Appointing a professional is often wise, especially if you are dealing with a complex estate. In any case, it is always a good idea to seek the advice of a solicitor before starting the process.
If you choose to administer the will yourself, there are several forms you will need to fill out including the probate registry if you are in England. You must do this in order to obtain the right to act as an executor. All the assets belonging to the deceased will have to be gathered and distributed to the beneficiaries. This will involve notifying banks, building societies, all other financial institutions the relevant Government departments ie: the council and HMRC, of the person’s death. You will have to settle any accounts they held, valuing their assets and debts, paying off any possible inheritance and finally distributing their assets.
The probate process involves the following steps:
- See if the deceased owned a prepaid probate plan. If they did, the process will be far simpler. Where probate has been prepaid, the solicitor will do the following:
- Check the validity of the Will. This will affect the beneficiaries’ entitlement to their inheritance.
- Value the estate. Identifying and value all assets against any outstanding debts.
- Acquire a Grant of Representation from the Probate Registry. This must be obtained before the administration of assets.
- Swear an oath that any information you supply is true to the best of your knowledge. You can do this at a local probate office or the office of a commissioner for oaths.
- Pay any Inheritance Tax due to HMRC.
- Settle any outstanding debts. You may have to sell the deceased’s assets if necessary. In situations where debts exceed the value of the estate, the estate becomes insolvent.
- Record all payments made to and from the estate. This proves the remaining balance to be distributed amongst beneficiaries.
- Distribute the remaining assets according to the will.
Making an Application for Probate
In Scotland, you’ll need to submit a C1, along with other forms (C5, C5SE or IHT400) depending on the make-up of the estate.
If you need any help or advice on wills, probate or future planning willsandprobate.rip offer a full comprehensive guide to help you on your way, find out more here.