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Probate is the word usually used to describe the process for administering the estate of a deceased person.
The probate process deals with the legal and financial aspects of the deceased in order to resolve all claims and distribute the deceased person’s estate in accordance with their final wishes.
The estate includes assets, such as property, investments, savings, pensions and other possessions minus any debts such as outstanding loans. Any monies due to the deceased should also be collected. Although there are some exceptions, it is usually against the law to take actions specified in the person’s Will, until probate has been granted.
The probate process can be handled by an authorised probate professional or alternatively by a relative or friend of the deceased acting as an executor or administrator. If the deceased’s estate is worth less than £5,000 or if the deceased owned everything jointly with their spouse or civil partner, probate is not usually needed. However, some financial organisations may require probate even if only a small amount of money is involved.
We would recommend seeking out someone skilled in handling the probate process for all but the most straightforward cases.
This is especially important in situations such as the following:
- The estate has exceeded the Inheritance Tax (IHT) threshold and IHT is due. The IHT threshold for 2020-21 is £325,000;
- There is no Will or issues concerning the validity of the Will have been raised;
- Dependants have been left out of the Will and may make a claim for support;
- The estate continues to receive income;
- The estate includes foreign assets;
- The estate has assets held in trust;
- There are doubts about the insolvency of the estate;
- The estate includes property under a tenancy in common arrangement.
Most probate cases follow the same steps:
- Check if the deceased had a Will - this normally states who administers the estate. You will need the original Will and any updates to apply for probate. These must be original documents, not photocopies.
- If the person dies without leaving a valid Will (intestate) there are special rules that need to be followed and the ‘administrator’ deals with the estate.
- Apply to the probate registry for a ‘grant of probate’ where there is a Will or ‘grants of letters of administration’ where there is no Will. You can apply for letters of administration if you are the person’s next of kin, by order of priority starting with married or civil partner, followed by children etc. You can apply if you were still married or in a civil partnership with the person when they died, even if you were separated from them. You cannot apply if you’re the partner of the person but were not their spouse or civil partner when they died.
- Usually only one person needs to apply for probate. If the person entitled to the estate is under 18 two people are legally required to apply.
- A grant of probate is not usually required if the person who died left less than £5,000 in total or owned everything jointly with someone else.
- Identifying all of the deceased’s assets and liabilities and paying any IHT due to HMRC.
- Collect the estate’s assets, e.g. money from the sale of the person’s property.
- Pay any debts, e.g. unpaid loans or utility bills.
- Distribute the estate - this means transferring any assets that the beneficiaries wish to retain and distributing any money due to the beneficiaries.
The time it takes for the probate to be completed can vary substantially and depends on a number of factors. A simple probate case can usually be resolved in around three months whilst more complex cases can take six to twelve months or even longer. This depends somewhat on the financial affairs of the deceased and ensuring that all outstanding issues with HMRC are closed.
It is important to note that arguments between family members, beneficiaries or personal representatives can also cause delays. Any disagreements must be sorted out before the affairs of the person who died can be settled. Probate is the term used for this process in England and Wales. In Northern Ireland the process is known as ‘grant of probate’ and in Scotland as ‘confirmation’.
IHT forms need to be completed and the deceased’s estate must be valued before probate can be applied for. If IHT is due, you normally have to pay at least some of it before you’re given probate. An official copy of the death certificate, the original Will and any fees due must also be submitted. The person applying for probate will also need to swear an oath confirming that the information they have given is true and promising to administer the estate properly.
In order to apply for probate, a probate application form must be completed. An application for probate can be made online at www.apply-for-probate.service.gov.uk or by post.
Only certain people can apply for probate to deal with the estate of someone who died. It depends on whether the person who died left a Will. There is also an application fee in England and Wales of £215 (£155 for probate professional practitioners) if the value of the estate is £5,000 or over. There are slightly different fees in Northern Ireland and Scotland. Extra copies of the probate can be obtained for an additional £1.50 each. It can be helpful to order extra copies of the probate document so you can send it to different organisations at the same time. If you apply online you will need to pay by debit or credit card.
If you apply by post you can:
- send a cheque payable to HM Courts and Tribunals Services (HMCTS) with your documents;
- call the probate registry and pay by debit or credit card – you’ll be given a reference number to send with your documents.
HMRC has confirmed that the online service can be used if you are the executor or administrator and you:
- have the original Will if you’re the executor (you do not need the Will if you’re an administrator);
- have the original death certificate or an interim death certificate from the coroner;
- have already reported the estate’s value;
- have a notice from HMRC saying that you’ve either paid IHT or have no tax to pay;
- the person who died must have lived in England or Wales most of the time.
If you apply online you’ll be told which documents to send and where to send them.
If you apply by post you’ll need to send these documents to your local probate registry along with your application form:
- the original Will and any updates
- the official death certificate or an interim death certificate from the coroner
The registry will not return the original Will as it becomes part of public record. If you make a copy of it for your records, do not remove any staples or bindings from the original.
You’ll usually receive the grant of probate and any copies you’ve ordered within 20 working days of your documents being received. However, because of coronavirus, probate applications are currently taking significantly longer than usual.
There is a separate process for solicitors and other legal professionals making probate applications online known as MyHMCTS. HMCTS receive approximately 280,000 applications for grants of probate per annum.
Once you have been granted probate, you should put a statutory advertisement in The Gazette and in a newspaper that’s local to the deceased. Placing a deceased estates notice ensures that sufficient effort has been made to locate creditors before distributing the estate to beneficiaries. This protects the executor or trustee from being liable for any unidentified creditors.