What is probate and how does it work?
What is probate?
Probate refers to the legal process of dealing with the estate of a deceased person (more specifically – their assets and liabilities).
Probate is necessary to ensure that the estate of the deceased is resolved according to their wishes, that assets (including investments, properties & money) are transferred to the appropriate beneficiaries and the relevant taxes are calculated and paid.
Is a grant of Probate always required?
Probate is not always required ; there are some exceptions when it is not typically necessary to obtain probate:
- The deceased assets are worth less than £5,000
- All of the assets pass directly to a joint owner e.g. joint bank accounts or properties transferring to a spouse
It is wise to check before assuming that probate is not required. Please get in touch with us if you are unsure.
Who can apply for probate?
The people who are legally entitled to deal with the estate of the person who has died are known as ‘personal representatives’.
If there is a will naming executors, and they are willing and able to act, they become the personal representatives. They will need to obtain a grant of probate from the Probate Registry, which will enable them to fulfil their duties.
If there are no executors willing or able to act, or if there is no will, the personal representatives will be called ‘administrators’, and they will need to obtain a ‘grant of letter of administration’ which gives them authority to act.
What if there is no will?
If there is no will, the estate will be distributed according to the rules of intestacy instead of the deceased’s wishes which can be vastly different. Having a will in place is always a good idea.
How long does it take?
The timescale for applying for probate varies greatly from one estate to another and depends on the complexity of the estate. As a very general guideline, the process usually takes between six and twelve months. However, the process can take longer though from delays when collating information or from HMRC’s processing time of applications.
What’s involved in the Probate Process?
There are several stages to the probate process, which are set out below.
A ‘Grant of Probate’ is a document that gives personal representatives legal authority to administer the deceased’s estate. An application must be sent to Her Majesty’s Courts and Tribunals Service, along with the original will, in order to obtain the grant.
There is a long list of tasks that must be carried out before an application can be submitted.
- Register the death and obtain official copies of the death certificate
- Locate the most current version of the will and ensure its validity
- Identify and contact beneficiaries
- Notify organisations such as banks and building societies
- Place a deceased’s estate notice
- Gather details and valuations of assets and liabilities
- Identify any gifts made in the 7 years before death
- Identify sources of income or capital gains
- Submit any outstanding self-assessment returns
- Prepare and submit an Inheritance Tax return and all relevant supplementary forms
- Arrange for payment of Inheritance Tax if applicable
- Communicate with HMRC and HMCTS throughout
After the Probate application has been submitted, executors and beneficiaries can expect to wait around 8-12 weeks to obtain the grant.
Once the Grant of Probate has been accepted, the usual next steps would be:
- Settling all liabilities
- Realising and distributing assets accordingly
- Preparing estate accounts
What are estate accounts?
Once all claims on the estate have been investigated and substantiated and all debts and taxes have been appropriately paid, the estate can be distributed. The personal representative for the estate must distribute the estate assets to the beneficiaries as detailed in the will (if there is no will according to statement of the law). After receiving assets or funds, all beneficiaries should sign a discharge to confirm safe and complete receipt. Residuary beneficiaries will then sign the estate accounts to confirm that they:
- accept the amount left to them once all other payments have been made
- they have no further claims on the estate.
How much does probate cost?
The cost of probate can vary depending on the size and complexity of the deceased’s estate, as well as the fees charged by the executor or administrator and any professionals involved.
Our fees will be calculated on a time spent basis but we aim to be as transparent as possible throughout the whole process. Fixed fees on uncomplicated and small estates can be agreed in advance and we will always give you an estimate of the presumed costs at the start of the engagement and update you if this changes. Fees start from £2,000 plus VAT and disbursements for simpler estates.
Partner and staff charge out rates are communicated to clients at the beginning and the initial meeting is free of charge.