When a family member passes away, with or without leaving a Will, the process of sorting out the personal and financial affairs of the deceased can seem overwhelming. This is often not helped by the need to obtain probate before the family can access funds and distribute the estate in accordance with the Will.
In this article, specialist private client lawyer, Chris Strogen, offers guidance on what probate is and how to go about applying for it.
What is probate?
When someone dies their assets and property (known as their estate) are left in limbo until someone gets the legal right to deal with their property and possessions by applying for probate and obtaining a grant of representation or letters of administration.
How do you apply for probate?
Normally, the probate application process involves these stages:
- Check and see if there is a Will – the Will may be kept with other important papers, at the bank or a solicitor’s office. If there is a Will the people authorised to sort out the deceased’s financial affairs (known as the executors) will apply for probate. If there is no Will then family members can apply for the grant
- Estimate the value of the estate – this is necessary so you know if inheritance tax is likely to be payable by the estate
- Pay any inheritance tax due – this needs to be sorted out before applying for probate
- Complete and submit a probate application form and where necessary an inheritance tax form
What happens after probate is granted?
The executors will need to:
- Pay any remaining inheritance tax that is payable
- Pay any debts
- Collect any property, for example, selling a share portfolio or a family home or investments
- Distribute the estate, either under the terms of the Will or, if there is no Will, under the intestacy rules
Do you have to get probate?
Sometimes it is possible to sort out a deceased’s financial affairs without applying for probate. For example:
- If the deceased person did not own any property or property was jointly held and passed automatically to the survivor
- The deceased held a joint bank account with a husband, wife, or partner so the savings or bank account passed automatically to the joint account holder
- The deceased’s bank may consider the account balance small enough to release without the formality of probate
You might also be interested in
Is getting probate straightforward?
The complexity of the probate process depends on how complex the deceased’s estate, family dynamics, and Will is. Sometimes getting probate is straightforward but there are often things to sort out or check such as:
- Entitlement to bereavement allowance
- Whether it is in the family’s best interests to change a Will after death (known as a deed of variation). Executing a deed of variation can result in inheritance tax savings
- Resolve any inheritance claims by family or dependants who want to challenge the Will or do not think that they will receive reasonable financial provision under the intestacy rules
- Obtaining a presumption of death certificate
- Sorting out life insurance and pension claims – these benefits may or may not pass under the terms of the deceased’s Will
- Sorting out the creation and administration of any Trusts created in the Will
- Changing the appointment of Executors
How much does probate cost?
Some people have complex finances and businesses and there is therefore a lot of legal work to do to get probate. However, even if the deceased’s estate is not complex, it often pays for executors to get specialist legal help to make sure that the estate does not pay more than it needs to in inheritance tax and that the estate is distributed correctly. If you need help in applying for probate call Chris Strogen at Evolve Family Law for a quote.