What is Probate of a Will and why is it important?
This guide will help you understand what needs to be done when dealing with the estate of someone who has died.
It is something that nearly all of us will experience, yet something that many of us know little about.
In what can be an already difficult time, it is often hard to understand the process of probate, and the situation can feel daunting. It can be made simpler, however, if we know a little about it beforehand.
For this reason, we have compiled a guide to probate, to point you in the right direction.
What is probate?
Probate is the legal process for dealing with the estate of someone who has died. An estate, in this case, relates to the money and property of the deceased.
If the deceased left a will, they may have specified an executor or executors. These are people who are expected to “execute” the will. An executor has the responsibility to carry out the deceased’s wishes, as written down in their will. in this case, relates to the money and property of the deceased.
In many cases, family and/or friends will be the executor/s of the will. However, people may appoint professional executors (a solicitor).
If there is no executor named in the will, or there is no will, someone must become the administrator of the estate.
When is probate required?
A grant of probate is required for most aspects of estate administration, depending on the size of the estate. Probate will normally be necessary in the following circumstances:
- The deceased owned property
- The deceased owned stocks or shares in their sole name
- The deceased had money in their sole name
- Any part of the estate administration is disputed and there are legal proceedings
Generally, if the person who has died had an estate worth over £15,000, it is likely probate will be needed. This threshold will vary from bank to bank, however, and could go up to £50,000. Checking the bank’s probate requirements is a good first step in determining whether the process of probate is needed.
The owning of property can also refer to any other buildings or land they might have owned.
It is worth noting that the presence of a will has no impact on whether a grant of probate is needed. The probate procedure is very similar regardless of whether there is a will or not (though some of the terminology is different), and is primarily based on the financial situation of the person who has died.
If you are still unsure, our expert probate solicitors can help you to determine whether probate is required in your particular case.
When is probate not required?
There are a few occasions where the process of probate is not required to administer the estate. These include:
- The deceased only owned property or bank accounts jointly with another person
- If the deceased was insolvent and had more debt, tax and other expenses than assets
If the person who has died owned property or bank accounts with a spouse, for example, the ownership will pass onto the other owner under the right of survivorship. The co-owner will need to provide the death certificate and proof of ID to the bank to formally transfer the assets into their sole name, but probate is usually not required. This is also the case if the joint owner wishes to sell the house.
In this scenario, the property would be held as “joint tenants”. To transfer or sell a house that is owned as “tenants in common”, probate will be needed.
As previously mentioned, the threshold differs from bank to bank, so it is worth investigating what their specific limit is for the need of probate.
What to do if there is no will
Research reveals nearly half of Britons over 55 do not have a will, so it is possible that the deceased died without having a will in place, leaving them intestate. The intestacy rules are the principles laid down by law which stipulate how the estate is to be administered if there is no will.
First, an application must be made to the probate registry for a grant of letters of administration. This document gives the named person the authority to administer the deceased person’s estate. This person is known as an administrator.
The rules of intestacy follow a hierarchy of who should benefit from the estate. This order is as follows:
- Spouse or civil partner
- Brothers and sisters
- Uncles and aunts
The highest existing and surviving relative will take priority. Clearly, this may not be an ideal situation for the deceased, which is why would highly advise you to make a will.
How do you start the process of probate?
To begin with, you will need to obtain a Grant of Representation. This is a document obtained from the court to prove the legal authority of the person entrusted to deal with a deceased person's estate.
The kind of grant that you need to obtain will also depend on your circumstances, as mentioned above. These are as follows:
- If you are named executor in the Will – Grant of Probate
- If you are the administrator with no Will – Letters of Administration
- If you are the administrator of a Will – Letters of Administration (with Will present)
A Grant of Probate or Letters of Administration can be obtained by contacting your local Probate Registry. You may choose to instruct a solicitor to act on your behalf to do this.
How long does the process of probate take?
Unfortunately, the question “how long is a piece of string?” springs to mind here. It depends on how complex the deceased’s estate is. For example, if there are multiple houses, bank accounts, or assets that weren’t known to the executor, these can also lengthen the probate procedure.
On average, if the will is not contested, the whole process can take anywhere between 6-12 months, but it can be much quicker if the estate is simple.
One way of minimising delays is to ask a qualified Probate Solicitor to make the application on your behalf. This will help to ensure that the Probate application is correctly completed.
What happens after probate is granted?
After you have applied and received a grant of probate, you obtain the legal responsibility to handle and manage the property and assets that the deceased left behind. You should notify all relevant parties that the process has been completed, and copies of the grant of probate should be sent to all asset holders with a request to release funds.
It is then down to you, the executor, to begin settling the estate, also known as estate administration.
The bulk of this will involve:
- Closing down bank accounts
- Collecting funds from various places
- Paying off any debts
- Resolving any governmental issues such as Department for Work and Pensions
- Selling assets
- Paying any taxes
- Distributing the estate to the beneficiaries of the will
You can read about the steps an executor has to take after the grant of probate in our Ten Key Steps for an Executor. Point six onwards refers to anything after the grant of probate.
How can we help?
At Percy Hughes & Roberts Solicitors, we have a team of dedicated probate solicitors who are ready to help you resolve your query or issue relating to this area of the law as quickly and effectively as possible.
If you need assistance with obtaining a grant of probate or letter of administration, or simply want advice on dealing with the Probate Registry, our wills, trusts and probate solicitors have a wealth of experience. They can help you through what can be a difficult time, dealing with estate and trust property and complex estates.
Contact Percy Hughes & Roberts
To speak to a wills and probate solicitor for advice, contact Percy Hughes & Roberts for a no-obligation phone consultation today. We provide ourselves on offering expert advice that's easy to understand, and we will be with you through every step of the legal process.