When someone dies it falls to loved ones to deal with their property, money and possessions – known as their estate. The legal administration of someone’s estate is commonly known as probate. This involves gathering together assets, paying debts, and distributing what is left to beneficiaries.
What is probate?
Probate is a term used when referring to the process of obtaining the legal right to deal with a deceased person’s estate and affairs.
When someone dies, the task of sorting out their money, property and assets passes to an executor, as named in the Will. Proof of probate is often required when dealing with banks and other financial institutions, local authorities, tax and pensions, insurance and estate agents, if you are selling a property.
In most cases, the relevant institution will need to see the grant of probate before transferring control of the assets.
If a person dies without naming an executor, without a valid Will, or the executor is either unwilling or unable to do the job, it passes to family members in a specific order. The person that takes up the job is known as the administrator.
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What is a Grant of Representation?
A Grant of Representation refers to the Grant of Probate and the Letters of Administration. These documents afford you the legal right required before you can take control of the estate as the ‘personal representative’ and set about complying with the Will or intestacy rules.
A Grant of Representation isn’t usually required if the estate passes to the surviving spouse or civil partner and it was held in joint names, such as a savings account or mortgage, or where the estate doesn’t include land, property or shares.
If you are named an executor in the Will, you must apply for a Grant of Probate.
If you are an administrator, you must apply for Letters of Administration, which give you the same rights as an executor.
You may not need to apply for Letters of Administration in certain circumstances, such as if the deceased left only cash and personal possessions.
Can you challenge a Will if you believe it is unfair?
Applying for Grant of Probate
If the person who has died has written a Will, this document will usually name the executor who is responsible for dealing with the estate.
If this is you, then before you can start dealing with the deceased’s property and money, you need to establish your authority to act as the deceased’s executor. To do this, you will need to apply for what is known as a Grant of Probate.
This is a document which gives you the legal authority to access the person’s bank accounts and finances. It also means you can distribute the deceased’s estate according to the instructions in the Will.
Send the original Will to the Probate Office
To establish your authority you will need to get hold of the original Will; this must then be sent to the Probate Office.
Assessing the estate
Prior to applying for a Grant of Probate, there are host of administrative tasks that you need to undertake.
You need to go through the deceased’s financial paperwork and set down all their assets and debts.
This includes any money held in bank and building society accounts, as well as money held with insurance firms, pension funds and in investments.
You will need to send a certified copy of the death certificate to each institution and must then request a final statement.
Arrange a property evaluation
As part of this process, you will need to provide a property valuation (if there is a house or flat included within the deceased’s estate).
Crucially, you need to work out whether the estate is above the inheritance tax threshold. If IHT is likely to be an issue, it is well worth providing a written valuation from an estate agent or surveyor, as this should make your dealings with HM Revenue & Customs more straightforward.
Without a written valuation, HMRC may challenge the figure you provide as being too low.
Fill in probate forms
Once you are happy that you have reached a figure on the size and composition of the estate, you can then proceed to the next stage; this involves you completing a host of probate forms and sending these to the Probate Registry.
The main probate form to apply for probate is a PA1 Probate Application Form.
You will also need to submit paperwork to HMRC to establish whether inheritance tax needs to be paid.
If you don’t expect IHT to be due on the estate, you need to complete IHT 205. But if the estate is above the IHT threshold, you will need to fill out IHT 400.
In addition, you will need to provide details of cash gifts made by the deceased in the seven years prior to their death, as these can increase the value of the estate for IHT.
Grant of Probate
As long as HMRC is happy with your valuation of the estate, you are ready to apply for Grant of Probate.
However, if IHT is due, this must be paid first. You can ask banks or building societies to pay some or all of the IHT due from the deceased’s estate via the “Direct Payment Scheme.” To do this, you will need to fill in form IHT 423.
Once you have completed the relevant forms, you need to make copies of all the probate forms and send them to the Probate Registry as part of your application for Grant of Probate. You will also need to send the original will plus three copies, the death certificate and any codicils along with these forms.
You will also need to pay the probate application fee, although there is no fee if the estate is under £5,000.
Once you have been granted probate, you should purchase additional copies, as you will need these when you administer the estate. It is worth paying for at least five copies.
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How do you start administering the estate?
As a personal representative, you can start winding up the estate by sending a copy of the grant to any company that holds the deceased’s assets, such as a bank or building society, and arranging for a cash transfer to one of your accounts.
Ideally, you should open an executor account, which banks offer for the purpose of bringing together all savings held in other accounts, as well as the proceeds from the sale of any property, belongings and assets that were not bequeathed in the Will.
This money, along with any refunds, life insurance payouts and pension payments paid to the estate should be used to pay off the deceased’s debts, any funeral expenses and your own reasonable costs incurred as personal representative.
Whatever remains after debts and taxes have been paid is the true value of the estate, which can now be distributed, along with specified property, assets or belongings, in accordance with the Will. If there is no Will, you distribute the estate in accordance with the law of intestacy.
Find out more about intestacy
What happens if there are joint accounts or shared property?
Many people will die with some form of joint account or shared property, which the personal representative must identify.
With a joint account, the holdings automatically transfer to the other party, as is the case with properties owned under a joint tenancy, known as joint ownership in Scotland.
If the property was owned under a tenancy in common arrangement – common ownership in Scotland and coparceners in Northern Ireland – the Will or law of intestacy determines who inherits the deceased’s share.
Getting professional help
No one would say the job of personal representative is easy. It’s a task most of us won’t welcome, as it usually comes at a time of great sadness and stress, and carries a huge amount of responsibility.
You need to be aware that there is a lot of time and work involved in administering someone’s estate; without the support of a third party legal service, there is also a risk you could be held accountable for any unintended errors.
Given the range of legal, tax, administrative – and often property-related – matters involved, it may be worth enlisting help from someone who is experienced in probate.
If the estate is in any way complicated, it’s even more important to seek professional help. This may be the case if, for example, the terms of the will are not clear, or if anyone is likely to dispute the will.
There are two types of probate service available, depending upon your needs:
Full Estate Administration
A Full Estate Administration service deals with every aspect of probate. This includes:
- Registering the death with the asset holders.
- Requesting date of death valuations.
- Preparing the legal paperwork, including Inland Revenue forms and executor's/administrator's oath).
- Obtaining the grant and registering the same with the asset holders.
- Collecting in all assets and closing down accounts.
- Paying all liabilities.
- Finalising the tax position.
- Paying any legacies.
- Distributing the monies in accordance with the will or rules of intestacy.
The provider will advise you of your various obligations and what you can do to minimise your responsibilities, and ensure they are carried out properly.
A Grant Only probate service means you supply the administrator with all the information. These may include:
- What assets belonged to the deceased.
- What debts they owed.
The administrator of a Grant Only service will prepare the legal paperwork for you, including Inland Revenue forms and executor's/administrator's oath.
Once obtained and completed, the grant is then handed over to you to deal with.
At this point, you can then register with the banks, close down accounts, pay off all liabilities, settle all taxes and distribute the monies in accordance with the Will or rules of Intestacy.
In this case, responsibility for making sure all figures are correct remains with you. It is also your responsibility, rather than that of the administrator, to make sure that the administration is dealt with correctly, the tax position is properly finalised, all debts are discovered and paid, and that all distributions are carried out and done correctly.
How long will the probate process take?
Probate typically takes between six months and a year. It can be a lengthy process, depending on the size, value and complexity of someone's estate but it is much easier if that person has made a Will.
If there isn't a Will, sorting out someone's affairs can become much more complicated, time consuming and costly.
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