PROBATE

As a specialist private client solicitor, advising families on Wills and estate planning, I am comfortable talking about death and the need to plan for it. I know that many families don’t feel able to talk about Wills or what might happen when a loved one dies. That can mean that when a family member does pass away, with or without leaving a Will, the process of sorting out their personal and financial affairs can seem totally overwhelming, often not helped by the need to obtain what is known as probate before the family can access funds and distribute inheritances in accordance with the Will.

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 a ‘’grant of representation’’ or ‘’letters of administration’’.

How do you apply for probate?

In general the process is as follows:

  • Check and see if there is a Will – the Will may be kept with other important papers, at the bank or at a solicitor’s office. If there is a Will the people authorised to sort out the deceased’s financial affairs (known as ‘’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 that the Inland Revenue can check if inheritance tax will be payable;
  • Arrange for the payment of inheritance tax due prior to the application;
  • Complete a probate application form and an inheritance tax form;
  • Swear a document;
  • Submit the application.

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 to sell 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 when:

  • The deceased person doesn’t own any property or property is jointly held and passes automatically to the survivor;
  • The deceased held a joint bank account with a husband, wife or partner so the savings or bank account pass automatically to the joint account holder;
  • The deceased`s bank may consider the amount in question small enough to release without the formality of probate (typically less than £5,000).

Is getting probate straight forward?

How complicated the probate process is depends on how complex the deceased’s estate, family and Will is. Sometimes getting probate is straight forward but there are often things to sort out or check such as:

  • Entitlement to bereavement allowance;
  • Whether it is in the family best interests to change a Will after death ( known as a ‘’deed of variation’’) – that 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 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 by 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 take legal advice 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 advice on getting probate please call for a bespoke quote, at a cost that is clear and straight forward. An initial hour meeting is of course free.


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