The first question to consider is What is Probate?
Probate is the legal and financial process of administering a Deceased’s estate.
This means dealing with the property, assets, liabilities and possessions of someone who has passed away.
Usually, the way the Deceased would have wished for their estate to be distributed is documented in their Will, if they have left one.
A Grant of Probate must be obtained from the Probate Registry by the Executor(s) named in the Will who are thereafter granted the authority to administer the Estate.
If the deceased has died intestate (meaning without leaving a Will), the Will is invalid, the executors are unable or unwilling to act, or the Executors have deceased, then a Grant of Letters of Administration should be obtained instead of a Grant of Probate.
The Intestacy Rules will determine who should apply for the Grant of Letters of Administration, and also determine how the estate should be administered and distributed.
The Executor(s) must first obtain the Deceased’s original Will as that will need to be submitted to the Probate Registry with the Probate Application. The Will should be considered to determine the terms of who should inherit what, and any other pertinent terms.
The Death Certificate should be obtained and the Death registered with a Registrar.
The Executor/Administrator must then contact all the financial institutions relevant to the Deceased’s estate. These commonly include the following:
- Banks and Building Societies
- Insurance Companies
- Pension Funds
- National Savings and Investments
The relevant financial institution should be provided with a copy of the Death certificate and requested to freeze the accounts. They should be asked to provide confirmation of the amount of funds held at the time of death or any payments made to the Deceased.
Investigations should be carried out as to the other assets and liabilities of the Estate in order to establish the value and whether it is necessary to apply for Probate.
Once the value has been determined, an important part of Probate is to calculate and pay the Inheritance Tax that might be due when administrating the Estate. As part of the Probate application, you must demonstrate that you have either paid any Inheritance Tax due, or upon valuing the Estate, determined that no Inheritance Tax is payable.
Usually, where the Individual’s estate is worth over £325,000.00 at the time of death, Inheritance Tax is payable. There may be various allowances available to reduce the liability of Inheritance Tax.
Once all of the above has been done, the relevant forms must be completed and sent to the Probate Registry, alongside the Original Will and Death Certificate.
Our Wills and Probate Solicitors can assist you with identifying the correct forms to be completed and making the application.
A Grant of Probate or Grant of Letters of Administration will be provided by the Probate Registry which will enable the Executor to liquidate the Estate by selling any properties, collect in monies, and use Estate Funds to pay off any liabilities, before then distributing the Estate in accordance with the Deceased’s Will or Rules of Intestacy.
We outline some common areas of concern which may arise during the Application process:
What if an Executor lacks mental capacity
What if the Executor of a Will dies
What expenses can an Executor claim back
Either a Grant of Probate or Grant of Letters of Administration must be obtained in the majority of cases before the Estate starts being administered.
Most financial institutions will require sight of this before any funds or information regarding the Estate is released.
Probate will definitely be needed so that any Property solely owned by the Deceased, or owned as Tenants in Common, can be sold.
The existence of a Will does not impact whether Probate is necessary.
The main consideration when assessing whether Probate is necessary is what the value of the Estate is.
The application for a Grant of Probate (where there is a Will) or Grant of Letters of Administration (where there is not a Will) is largely similar.
Both Grants function in an identical way, by allowing the Administrator to distribute the Estate, once obtained.
If the Estate is not solvent, there is insufficient monies to pay any tax liabilities or debts, then a Grant of Probate is not required.
Some financial institutions are willing to release funds up to £50,000.00, whilst others require a Grant of Probate before any funds can be released, so it is always worth enquiring with relevant institutions at the outset before an application to the Probate Registry is made.
Usually, where an Estate is valued at less than £5,000.00, most financial institutions will be willing to release funds, and therefore a Grant is not required.
Banks are generally willing to release funds in respect of funeral expenses to assist with the initial expenditure following a death. This is usually by way of a re-imbursement following the executor submitting invoices in respect of the funeral to the bank.
If you are dealing with an Estate that is not very small or comprised of various types of Property owned in the Deceased’s sole name/owned as Tenants in Common, it is more likely that you will need to apply for probate.
If all the Property in the Estate is owned by the Deceased with another person, as Joint Tenants, then upon their death, the Property automatically belongs to the other Owner and no Grant of Probate is required.
Similarly, if there if the Estate is solely comprised of one joint bank account held with another, then a Grant of Probate is not required as the money then belongs entirely to the other account holder, although the bank will likely need to have had sight of the Death Certificate before any transfers are made.
If the Deceased’s estate is comprised of a mix of assets that are jointly owned, and owned solely by them, it may likely be the case that Probate is required.
If the Deceased passed away with assets overseas, then it can be a little more complex to administer the Estate. This is becoming more and more common as people move away for work before returning to the UK, purchase holiday homes, or open bank accounts in other countries.
Probate laws vary across countries. Some countries can accept a British Grant of Probate, others require a Grant to be obtained in that Country, and some simply do not require a Grant for you to administer the assets.
It is important to determine whether the Deceased left a Will in the Country the assets are owned, to deal with distribution. A valuation of the assets must be obtained.
When applying for a grant of Probate, you can also specify that assets are held overseas, and a foreign grant can be obtained.
This can be complex and we would recommend that you consult with one of our expert Wills and Probate Solicitors to assist you with the process.
The length of time the process takes varies on a case-by-case basis. In matters where no grant is necessary, it may be a matter of weeks for you to collate all the assets, settle any liabilities and distribute funds to the respective beneficiaries. In more complex matters, this can take much longer.
Our Wills and Probate Solicitors are always available to assist you with the entire process, from assessing whether Probate is necessary and applying for the same, through to distributing the assets once a Grant is obtained.
At Laker Legal Solicitors, we are well aware of the challenges that can arise in facing a Probate application, particularly during an already emotional and difficult time.
We can assist you and guide you through this difficult process. If you would like an appointment with one of our specialist Wills and Probate solicitors in Preston, Kendal, Lancaster, Maidstone or Kings Hill please get in touch by filling in our contact form, emailing us at info@lakerlegal.co.uk or by calling us directly on 01524 753040.
