What is probate?
Probate is the process of organising and administering a deceased person's estate. To do this all debts and liabilities must be evaluated and paid off. Assets must be collated and valued before any residuary is distributed among beneficiaries. The process should happen in accordance with the instructions issued in the deceased's Will. If there is no Will – or no legally enforceable Will - the rules of intestacy determine the administration of the estate.
Whose job is it to carry out probate?
The executor or executors named in the Will are responsible for carrying out probate. In the absence of a Will or named executors, next of kin are charged with administration of the estate and therefore become "administrators".
Will you need a solicitor?
Instructing a probate solicitor may speed up the amount of time it takes to complete the probate process. More significantly, it may take away much of the stress and inconvenience inherent in the probate process. This is particularly important as the probate process can be complex and exacting, and comes at what is typically a very difficult time for families. A probate solicitor may be necessary in the case of a complex or contested estate.
What if there is no Will?
Instructing a probate solicitor may increase your chances of finding a Will. If no will can be found, the estate is then administered under the rules of intestacy.
What if you can’t find a Will?
If, following a search of the deceased’s home, you are unable to find the Will, you should check with family members and local solicitors to see if one has been stored with them. You can also write to the Principle Probate Registry to see if a Will has been registered with the Probate Service. Oratto member solicitors are able to assist you with locating a Will.
What is a codicil?
A codicil is an official legally-binding alteration to an existing Will. The codicil(s) must be signed and witnessed in exactly the same as a Will would be.
A codicil can change as little as a single word or significantly alter large portions of the Will. However, they are mainly used to make small, minor alterations or to add in an additional bequest to a new or existing beneficiary. There is no limit on the number of codicils that can be attached to a Will.
What is a letter of wishes?
A letter of wishes (sometimes called a Memorandum of Wishes) is a supplementary document to a Will. Unlike a codicil it isn’t legally binding, but a letter of wishes can provide loved ones with additional information – for example, relating to small personal items to be given as gifts to loved ones – or it may be used to explain why certain family members have been excluded from the Will. In some cases it may also be used to communicate more personal information, such as specific requests for funeral arrangements, or advice for guardians on how the testator would like children to be brought up, where they should live, their education and so forth.
What is a Grant of Probate?
A Grant of Probate is only issued to the executors named in a Will. The Grant itself provides legal confirmation that the Will is valid and has been officially registered with the Court. It permits the executor(s) to administer the estate and to carry out the instructions as laid out in the Will.
How does an executor get a Grant of Probate?
A Grant of Probate must be applied for through the courts by way of a PA1 form. There is currently a court fee of £155 if a solicitor is applying on behalf of the executor or £215 if the executor is applying in person. There is no fee for small estates (under £5,000).
A completed Inheritance Tax form must also be submitted (even if the estate is below the Inheritance Tax threshold), along with an official copy of the death certificate, the original Will and three copies – plus any codicils.
Who needs Grant of Probate?
Grant of Probate is necessary if the deceased's estate contains land, buildings or property owned solely by the deceased.
Furthermore, if the estate includes accounts at banks, or other institutions such as building societies, that are worth more than £5,000, you will need to obtain a grant.
What if there are no executors?
If there is a Will but there are no stated executors, beneficiaries can apply for "letters of administration" in order to be able to administer the estate themselves.
What are Letters of Administration?
If someone dies intestate (without a Will), or the Will is not valid, or when those named as executors in a valid Will do not wish to act as a personal representative or are unable to do so, then the person (usually a close relative) seeking to administer the estate will need to apply for a Grant of Letters of Administration which will give them the legal right. To apply, the administrator must submit a completed PA1 form, a completed Inheritance Tax form, an original copy of the death certificate (and where there is a Will, the original Will plus three copies and any codicils) plus a court fee.
Once the Grant of Letters of Administration has been issued by the court the administrator then has the legal authority to administer the estate in line with the rules of intestacy.
What if you are named as an executor but don't want to act as one?
As long as you have not already begun administering the estate it is possible for you to renounce your executorship.
If you are only one of two or more executors, you can make an application to have your "power reserved"; this means that you do not have to act but may later choose to do so if, for example, you are unhappy with the way the estate is being handled.
What if there is more than one named executor?
As many as four executors can jointly apply for the grant of probate. Executors can act jointly, or may agree that it is easier for for one executor to head the process. Alternatively, the executors may decide to act as a unit but to appoint a probate solicitor to deal with much of the administration as well as the more difficult or pressing issues.
What is the difference between an executor and an administrator?
Executors and administrators perform the same role. However, an executor is named in the Will, while an administrator is appointed by the court.
What is a small estate?
A small estate is one that is valued at £5,000 or less. Usually, a Grant of Probate is not required to release the assets of a small estate.
How do you work out the value of the estate?
You must add together the value of all the financial assets, then subtract any monies owed by the deceased (such as final mortgage balance, utility bills, loans, care home fees, etc). The final figure is the value of the estate.
Will there be any tax liability?
Inheritance Tax of 40% is payable on estates worth more than £325,000. However, there are ways to minimise IHT liability and these may be worth discussing with your probate solicitor.
When will you have to pay any Inheritance Tax that is due?
Payment is required in full before the end of the sixth month after the deceased has died. If payment is late then HM Revenue and Customs charge you interest. Usually, Inheritance Tax has to be paid before the Grant of Probate can be applied for – however, this can create a cashflow problem – the money from the estate can’t be released until Probate is granted, and the money from the estate may be needed to pay the Inheritance Tax bill. Talk to Oratto if you are faced with this situation and we will hopefully be able to source the legal assistance you require.
Will you have to pay fees?
Death certificate fees, funeral accounts, Court fees for Grant of Probate, oath fees and Inheritance Tax all bring with them financial expense. Some expenses must be paid at the outset, (from the estate if available) while others can be settled once the assets have been liquidated. Talk to your probate solicitor for more information.
How long does it take to complete probate?
It usually takes six to eight weeks to obtain grant of probate or letters of administration. From this point on, it is likely to take six to nine months before the estate can be fully distributed. However, in more complex cases or cases of contested Wills, it may take over a year to resolve any stumbling blocks.
Will you be personally liable for mistakes if you act as an executor or administrator?
Being an executor or administrator brings with it a great deal of responsibility; as such, if you act as either party you are personally liable for losses sustained from mistakes you make during the administration of the estate, even if these have been made in good faith.
How to find the right probate solicitor
Oratto's member probate solicitors bring you expert independent advice that can save you considerable distress and inconvenience while also helping to relieve both the burden and the contention of estate administration.
Browse through our member profiles or try our Match Service today. We can help you ensure the specialist who is best suited to your situation wherever you are in the UK.