Probate

After someone dies, probate is the legal process of dealing with their property and financial affairs. Sometimes a legal document is needed to do this work, depending on what the person owned when they died. This legal document is what the term ‘probate’ commonly refers to.

The need for probate doesn't depend on whether there's a will, it depends on the financial situation of the person who died. The probate process is very similar regardless of whether there's a will or not, but some of the terminology is different.

In England and Wales, a grant of representation is the collective term for a legal document which allows you to deal with someone’s estate. This document is needed to take care of certain assets.

The specific legal document that’s needed depends on whether there is a will in place. If there is a will, the executors would need to apply for a grant of probate. If there isn’t a will, the next of kin would apply for a grant of letters of administration.

In Scotland and Northern Ireland, different documents are used.

Whether probate is needed will depend on what assets are in the estate. Here are some common examples to give you an idea of whether you’re likely to need probate.

Owned their own home

• owned a property in their sole name
• the property can’t be sold or transferred without a grant of representation
• you’ll likely need a grant of representation.

Owned joint assets

• owned a house with someone else, or
• kept savings in a joint account
• these assets will simply transfer to the surviving owner
• you may not need a grant of representation.

Owned other high-value assets

• owned shares in their sole name, or 
• had over £20,000 across their sole bank accounts (market average)
• you’ll likely need a grant of representation.

Didn’t own many assets

• didn’t own high value assets, and
• had less than £20,000 across their bank accounts (market average)
• you may not need a grant of representation.

No, you do not have to act as an executor. You have a couple of options. Your first option is to give up all rights to act as executor (as long as you haven't done any work on the estate administration).

Your other option, if there are other executors named in the will, is to choose to have 'power reserved'. This allows the other executors to act but you can apply to join in the probate process later on if you want to or need to.

You can also choose to instruct a probate solicitor to complete the probate work for you.

If you do act as executor, it's important that you understand the duties and responsibilities of an executor. If you make any mistakes, you could be held liable for these.

The probate process can involve a lot of complicated legal, tax and financial work. This includes (but is not limited to):

1. Identifying and locating all of the estate assets
2. Establishing whether there is a will and locating this if so, or applying the rules of intestacy if not
3. Identifying and contacting the beneficiaries of the estate
4. Valuing the estate and calculating any tax due
5. Liaising with HM Revenue & Customs and paying tax before the deadlines
6. Applying for the grant of probate or grant of letters of administration
7. Selling the estate assets
8. Notifying potential creditors of the death
9. Settling all liabilities (debts) on the estate
10. Paying the final estate administration expenses and accounting to HM Revenue & Customs for any further Inheritance Tax, Income Tax or Capital Gains Tax due to or from the estate.
11. Preparing estate accounts, showing all payments into and out of the estate
12. Distributing the balance of the estate in line with the terms of the will or the rules of intestacy (providing there are no challenges to the estate or other complicating factors).

Whoever carries out this work can be held personally liable for any mistakes that are made during the estate administration.

When a will is made, the executors are usually told where the will is stored, but this isn't always the case. If a solicitor, lawyer or other professional has drafted the will, then it might be stored with them. 

A thorough search of the deceased person’s paperwork should be carried out to try to locate the will, or any reference to a will being held by a law firm or will writing company. There are also organisations that hold registers of wills. It’s possible to carry out a professional will search of these registers to see if the will in question has been listed on these registers. 

Before the will can be released, the executors have to prove that they are who they say they are, by providing proof of identity. They must also provide evidence of the death (by showing the death certificate).