What is a Grant of Probate?

When you have suffered a bereavement, it can be hard to navigate the steps you need to take to sort out a loved one’s estate. In this article, our probate solicitors outline what a grant of probate is and explain whether you will need to obtain probate.

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What is probate?

Probate is the legal process of proving that a Will is valid. Probate gives the executors of the Will the authority to administer the deceased’s estate.

It is best to speak to a probate lawyer about probate, as the executors named in the Will can only normally access funds to pay debts, transfer or sell assets or distribute the estate in accordance with the Will after the grant of probate has been obtained.

What is a grant of probate?

A grant of probate is the legal document that gives the executor of a Will the legal authority to act. Without the grant of probate, third parties, such as banks, the land registry or financial institutions, will not act on the instructions of the executor of the Will. The grant of probate gives third parties the official evidence they need to prove that the deceased has died and that the person contacting them is the authorised executor or administrator of the estate.

Intestacy and letters of administration

If a deceased dies without making a Will, it is called dying intestate. Instead of applying for probate, the administrators of the deceased’s estate apply for letters of administration, in a similar process to a grant of probate.

Executors and probate

The executors named in the Will are responsible for gathering in the estate, paying any debts or taxes and then distributing the estate to the intended beneficiaries.

Most executors don’t deal with the probate personally but instead instruct a probate solicitor to deal with the legal work for them, with them retaining overall control of the administration by giving instructions to the solicitor.

If the deceased died without making a Will, the intestacy rules specify who can administer the estate and who will receive it. The administrator has a role similar to that of an executor.

How to apply for a grant of probate

Usually, the process of obtaining a grant of probate and administering the estate involves:

1. The executor, or the probate solicitor instructed by them, obtains information about the assets and any debts.
2. The grant of representation is applied for.
3. An inheritance tax form is completed and, if necessary, any IHT is paid.
4. The grant of probate is received.
5. The assets of the estate are gathered in. For example, shares or the family home are sold.
6. Any debts payable by the estate are discharged. For example, outstanding utility bills on the family home.
7. The estate is distributed in accordance with the Will or intestacy rules.
8. The probate lawyer prepares estate accounts to show the monies and assets received, debts and taxes paid and how the estate was distributed.

When probate is complicated

Some grants of probate are straightforward, but others can be complicated. Examples of potentially complex probates include:

1. If the named executors in the Will do not get on with one another.
2. If the beneficiaries named in the Will are likely to challenge the speed or work of the executors in securing the grant of probate and distributing the estate.
3. If the validity of the Will is challenged.
4. If there is a dispute over the Will and questions over whether the deceased made fair financial provision for a dependant.
5. If there are likely to be complicated inheritance tax or capital gains tax issues.
6. The size of the estate or the nature of the assets. For example, where the estate consists of a large buy-to-let property portfolio or overseas assets, such as a holiday home.
7. The beneficiaries want to change the estate distribution by making a deed of variation.

Who pays for probate?

Some people think that if they are named as an executor in a Will, they must personally obtain the grant of probate. That isn’t normally the case, as an executor can choose to instruct a probate solicitor.

The estate pays the costs of instructing a solicitor before it is distributed to the beneficiaries. The probate solicitors’ cost will depend on the size and complexity of the estate. Evolve Family Law believes it is very important that fees are transparent, and we publish a price guide. For a bespoke quote, please call us so we can review the work you would like us to do.

Is a grant of probate necessary?

In some family situations, an executor, a loved one or a beneficiary will question whether a grant of probate is necessary. In situations where the estate is very small, a grant of probate may not be necessary. The requirement for probate does not depend on whether there is a Will or whether a husband or wife is inheriting the entire estate. Instead, the requirement for probate depends on the size and nature of the estate’s assets. If there is a property to sell, a grant of probate will always be required.

If you aren’t sure whether a grant of probate will be needed or not, our Manchester and Cheshire probate solicitors are always happy to advise you on whether a grant of probate is needed and, if so, the likely probate solicitors’ fees for securing probate for the estate.

Get in Touch With us Today for Estate Administration Advice.