What is Probate?

Probate describes the legal and financial processes that are involved in dealing with a person’s estate when they die.

Their estate is made up of your wealth, property, possessions and other assets. It is an individual’s net wealth in the eyes of the law.

When someone dies, there has to be a process to sort out who gets what from their estate.

To do this there has to be a grant of representation. This is either a grant of probate or letters of administration.

Grant of Probate or Letters of Administration?

The difference between a grant of probate and letters of administration is this:

• A grant of probate is issued to the executors named in a will.
• Letters of administration are issued to next of kin, when someone has died without leaving a will

Someone must first apply for probate.

If the deceased person has left a will, then the Will will name an executor.  If there is no will, then it must be someone who can be classed as an administrator, usually next of kin.

What is the Process for Applying for Probate?

To apply for probate, you must file the correct forms with your local probate registery.

But first there are several steps in the probate process that you will need to take.

1. Registering the Death

When someone dies, you need to register their death. This should be within five days of the death, unless you live in Scotland, where it is within eight days.

You will get a death certificate, and it is useful to pay for extra copies, as they will be necessary later on in the probate process.

2. Valuing the Estate

It’s important to understand what the estate of a deceased person is worth. This means going through bank accounts and other records.

This can be quite a complex process, since it can involve contacting various bodies and agencies, including:

• Banks
• Mortgage and other lenders
• Pension providers
• Fund managers for investments
• Department of Work and Pensions

You will also need to check for any outstanding tax payable by contacting:

• HMRC, for outstanding tax payments
• Local authority, for outstanding council tax.

The Government allows you to report someone’s death to most of its agencies at the same time, using its Tell Us Once service.

3. Valuation of Property

In many cases, an estate will involve property.

You will need to value this as part of probate. One option is to do it yourself, by looking at other homes that have sold that are comparable.

However, if there are likely to be inheritance tax payable, due to the property being above the threshold, then having an estate agent or surveyor provide a written valuation may make dealing with HMRC easier.

The current inheritance tax threshold is £325,000.

There may be other assets where you would benefit from an official valuation for tax settlement purposes.

Having a low value for probate may create capital gains tax liabilities in the future. Valuations must be true market valuations as of the date of death.

4. Filing Your Probate Application

You must also upload a copy of the death certificate.

HMRC requires details of the value of the estate at death, plus details of any cash gifts the deceased made up to seven years before their death. This is because these remain in the estate for the purchases of the inheritance tax calculation

There are various rates and allowances to do with inheritance tax, which can make a difference to how much the estate is liable to pay.

5. Probate Fees

To complete your application for probate, you must pay a probate fee. Currently this is £273 in England and Wales

You can also apply for extra copies of the grant of probate for a small fee. It is normal to order five to cover the whole probate administration process.

6. Paying Inheritance Tax

You cannot settle the estate until you have paid any inheritance tax due to HMRC. If IHT is due, then you must pay this in advance.

Where the deceased has sufficient funds in their bank account, you can pay this direct to HMRC. However, if major assets are in property, or shares, you should be able to arrange payment of IHT in instalments.

Once you have completed these six stages, you can apply for your grant of probate.

What Happens Next in Probate?

As the executor of the will, the next stage is to share out all remaining assets, once everything in the estate has been valued, accounts have been settled and closed and you have paid any inheritance tax due.

Providing there is an existing, legally valid will, this should be straightforward.

It normally involves transferring any assets that the beneficiaries wish to have, and distributing the balance of the funds of the estate.

What if Someone Contests Probate?

If there are questions about the legitimacy of the will, then this may prevent the probate registry from issuing the grant of probate.

A beneficiary or relative of the deceased may enter a caveat, which will prevent or delay the probate being granted until it is lifted.

Should the caveat stand, then the courts will decide who should be granted probate.

How Can a Solicitor Help With Probate?

If an estate is at all complex, and if its value is over the inheritance tax threshold, then a probate specialist can provide help and advice.

Estates can be complicated to administer, and this is especially true where there is no will and the rules of intestacy apply.

There can be issues where people contest a will and its validity is in doubt. Where assets are held in a trust, this adds a layer of complexity to probate.

In these types of circumstances, having proper, professional and experienced legal guidance can help keep the probate process on track and resolve any issues at what is often a difficult and stressful time.

For more information about wills and probate, please call 0800 088 6004, or fill in our online contact form, and we will be in touch as soon as possible