Probate is one of those terms people have heard of but aren’t exactly sure what it means! Because of this there are a lot of questions surrounding it, so we have put together the most frequently asked questions about Probate and Administering the Estate to help lift the cloud of confusion and allow you to sort out your loved ones affairs as quickly and as easily as possible.
In a nutshell, Probate is the name for the legal process for the application of the authority to deal with a deceased person’s affairs and estate. The document issued is, collectively, called the Grant of Representation. Usually, when there is a Will, it is called “Grant of Probate” and usually, when there is no Will, it is called “ Grant of Letters of Administration”. The grant document is proof that the person(s) named in it are entitled to deal with the estate of the deceased.
Probate isn’t a simple or automatic process. If you have been named as the Executor by the deceased in their Will, you must apply for the Grant of Probate. To get the Grant of Probate, which is the document enabling you to deal with the affairs of the deceased, you must apply to the Probate Registry by sending in their will and death certificate. You may also be required to attend an interview at the Probate Registry.
However before you apply for the Grant of Probate, you must first pay any Inheritance Tax (IHT) owed on the estate to H.M. Revenue and Customs.
Typically, it is the Executor of the deceased’s Will who applies for the Grant of Probate. Up to four executors can be named in a Will and all of them can apply for the Grant of Probate and then work together on the execution of the estate. However, the appointed executors may, because of work commitments or because they live abroad or to just make the process simpler and quicker nominate one primary executor amongst themselves who will then solely apply for the Grant of Probate and administer the estate. Too many cooks and all that!
The other three can still retain their powers to act, if they are needed and can be called upon when needed should the Executor fall ill, die or otherwise fail to complete the Administration of the estate. This is called “power reserved”.
If there is no Will, Probate can be even more confusing and time consuming. Instead of applying for a Grant of Probate, the person entitled to administer the estate must first apply for a Grant of Representation usually called Letters of Administration which is the legal document which allows that person to deal with the estate. There are certain persons who are entitled to apply for a Grant of Representation and if two opposing equally entitled people, both apply for it, the whole process is delayed and could lead to conflict at a time when it is needed least.
Once any disputes regarding the application for the Grant of Representation are resolved the person entitled to apply then applies for the Grant of Letters of Administration.
Once the Grant of Letters of Administration are issued, the Personal Representative is then allowed to deal with the estate, dividing the estate under the Rules of Intestacy.
Estate Administration is the name given to the process of dealing with the estate of the deceased, from when they die right through to until the estate has been distributed between the beneficiaries. It involves:
- Registering the death
- Arranging the funeral
- Applying for the Grant of Representation
- Informing all the necessary people including H.M. Revenue and Customs, The Department of Work and Pensions, employers, banks, building societies and insurance companies
- Paying all debts
- Dividing the estate between the named beneficiaries as detailed in the deceased's Will.
See our Probate and Estate Administration checklist for simple step-by-step guidelines.
If you are the appointed executor or the person entitled to apply you can apply for the Grant of Representation yourself without the assistance of a professional. However, Probate and Estate Administration can be a long and confusing process. Many people employ a professional (e.g. an accountant or solicitor), to administer the estate on their behalf. A professional may have the technical and legal knowledge needed to administer the estate in accordance to the Will of the deceased and can remain objective at this emotional time.
Click here if you would like to find out more about how Goldsmith Williams can help ease the burden of Probate and Estate Administration.
A Grant of Representation is required if the deceased leaves:
- Over £5,000
- Property or land
- Any insurance policies
- Any stocks or shares.
When the Grant of Representation is obtained, the Personal Representative then has the legal authority to deal with all the assets of the deceased. This includes all property and bank accounts in the name of the deceased. Only when the Grant of Representation is obtained will financial institutions holding assets in the deceased’s name release funds.
The only time a Grant of Representation may not be needed is if:
- The deceased's estate is worth less than £5,000
- The deceased owned everything jointly with a spouse/partner and everything passes automatically to them.
To ensure a Grant of Representation is not required, you will need to write to each necessary institution, informing them of the death and enclosing a photocopy of the death certificate.