When you have suffered a bereavement, it can be hard to navigate what you need to do to sort out a loved one’s estate and their financial affairs. In this article we look at what a grant of probate is and whether you will need to obtain one.
What is probate?
Probate is the legal process of administering the estate of a deceased person so that assets are gathered in, any debts paid and the estate distributed. If the deceased left a valid Will their estate will be distributed in accordance with the terms of the Will. If the deceased didn’t make a Will their estate will be distributed in accordance with intestacy rules. If there is an intestacy, the legal process of administering the estate is called ‘letters of administration’.
Who deals with probate?
The task of an executor named in a Will is to deal with probate. Most executors don’t deal with the probate personally but instead ask a probate solicitor to deal with the legal work for them. As an executor they retain overall control of the administration of the estate and give instructions to the solicitor.
If the deceased died without making a Will, they died ‘intestate’ and the intestacy rules say who can apply to administer the estate and who will receive the estate. An administrator can ask a probate solicitor to administer the estate on their behalf.
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 a grant of probate most third parties won’t act on the instructions of an executor as they need evidence that the deceased has died and that the person contacting them is the authorised executor or administrator of the estate.
How do you apply for a grant of probate?
In most situations the grant of probate follows a set path, namely:
- The executor, or the probate solicitor instructed by them, gets information about the estate, including the assets and any debts
- The grant of representation is applied for
- An inheritance tax form is completed and, if necessary, any IHT can be paid
- The grant of probate is received
- The assets of the estate are gathered in (for example, shares or property may be sold depending on the terms of the Will)
- Any debts payable by the estate are discharged (for example, outstanding care home fees or utility bills on a property)
- The estate is then distributed in accordance with the Will or intestacy rules. Estate accounts are prepared to show the monies and assets received, debts and taxes paid and how the estate was distributed.
Some grants of probate are straightforward but others can be complicated. For example:
- If the named executors in the Will do not get on
- If the beneficiaries of the Will are potentially going to challenge the speed or work of the executors in securing the grant of probate and distributing the estate
- If the validity of the Will is challenged
- If there is a dispute over the Will and questions over whether it made fair financial provision for a dependant of the deceased
- If there are likely to be complicated inheritance tax, CGT, trust or sale issues because of the size of the estate or the nature of the assets. For example, if the deceased died within a short time of making lifetime gifts or where the estate consists of a large buy to let property portfolio or some assets are overseas, such as a holiday home
- The family want to change the Will provisions through a deed of variation.
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Who pays for probate?
Some people think that if they are named as an executor in a Will that they have to undertake the obtaining of the grant of probate personally. That isn’t normally the case as Wills enable an executor to instruct a probate solicitor. The costs of the grant of probate and the probate solicitor come out of the estate before it is distributed to the beneficiaries. The probate solicitors’ cost will depend on the size and complexity of the estate. Fixed fee or hourly cost quotes should be made available. At Evolve Family Law we believe it is very important that fees are transparent and publish a price guide on our website. For a bespoke quote please call us and we can look at the work you would like us to do.
Is a grant of probate necessary?
In some family situations, an executor or a loved one or beneficiary will question if a grant of probate is necessary. Probate solicitors say this question is totally understandable as no one wants to go through unnecessary processes. In situations where the estate is very small a grant of probate may not be needed. Whether you need a grant of probate or not doesn’t depend on whether there is a Will or not or whether a husband or wife is inheriting the entire estate, but rather depends on the size and nature of the assets in the estate. 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 if a grant of probate is needed and, if so, the likely probate solicitors’ fees for securing probate for the estate.
We are Manchester and Cheshire probate and Will solicitors
Evolve Family Law specialise in private client law advice. For advice about a grant of probate or your responsibilities as an executor or whether you can challenge a Will call us or complete our online enquiry form.
Evolve Family Law have offices located in Whitefield, North Manchester and Holmes Chapel, Cheshire but our private client and Will solicitors are experienced in working remotely and offer meetings by telephone appointment or video call.