Frequently asked questions regarding probate
This page provides answers to the most common questions that we are asked regarding Probate and how we can help.
A grant of probate is one of two types of Grant of Representation. It refers to the type of grant you must receive to confirm that you are authorised to administer a deceased person’s estate and gather in all of the assets.
The specific type of grants of representation you will require depends on whether the deceased died with or without a will.
- If the deceased left a valid will, a grant of probate may be required on the estate. The application for the grant of probate will need to be made by the named executor of the will.
- If the deceased did not leave a will, you may need to apply for a grant of letters of administration. This application will need to be made by the lawful administrator.
In addition to the above, there are a number of other types of Grants of Representation which are required in more complex estates. The two above, however, are the types of grants which are most commonly required.
A grant of probate is required on assets in the sole name of the deceased.
All banks, building societies and other financial institutions have different thresholds for when Probate is required. For example, if your grandmother's bank account has £15,000 remaining when she passed away and the bank's threshold for Probate is £30,000, it is likely that you will be able to access these funds without requiring a grant of probate.
Probate is nearly always required on assets over £30,000 and of course, on any property owned in the sole name of the deceased.
There are always exceptions to this rule and the financial institution in question will always let the executor/ administrator know if probate is required.
Sometimes even when probate is not required, you may still wish to apply for a Grants of Probate in order to establish that you have the legal authority over the deceased’s estate.
It is always worth seeking advice from a lawyer who specialises in probate and estate administration to give you peace of mind and clarification on any concerns that you may have.
This is a complicated question as quite often in probate matters there will be some assets that will be subject to a grant of probate and some which are not. It is also possible that some assets may not be subject to probate, but due to other factors, such as a family conflict, it would be a good idea to obtain a grant of probate to protect the assets.
In simple terms, you will need to apply for probates for the following assets
- assets held in the deceased’s sole name (property, bank accounts, building society accounts, shares). These will be dependent on value.
- investments portfolios
- life insurance policies which are not nominated to a beneficiary underneath that foreign assets underneath
- business assets
The following assets are examples where grants of probate are usually not required
- jointly held assets such as bank accounts or property
- low value assets, such as under £5000 or under the threshold required by the financial institution
- Nominated policies - for example, a life insurance policy which has been nominated to a specific beneficiary
When somebody dies, everything that they own forms part of what is known as their estate.
The authority to administer a deceased person’s estate falls to either an executor or the administrator.
When a person dies with a valid will, the person who has this legal authority is called an executor. Every will appoints an executor so that there is a person or persons who will be legally responsible for collecting in all of the assets in the estate, paying off any liabilities and dealing with inheritance tax and distributing the estate among the beneficiaries named in the Will.
When a person dies without a valid will, their estate is subject to the rules of intestacy. The rules of intestacy decide who will have the legal authority to administer the estate and who the beneficiaries will be. The person with the legal authority to administer a deceased person’s estate when there is no valid rule is called the administrator.
An executor or administrator is responsible for the following:
- identifying all assets in the estate and obtaining accurate valuations as at the date of death
- calculating all liabilities in the estates such as mortgages, credit cards or loans
- completing HM Revenue and customs account. These are required in both non-taxable and taxable estates.
- making the application for the grant of probate/grants of letters of administration
- paying for the funeral
- gathering in all assets underneath
- paying all liabilities underneath that settling inheritance tax and obtaining HM Revenue and customs clearance
- making payments of any legacies in the will
- distributing the estates of beneficiaries in accordance with the Will
- preparing and completing estate administration accounts
It is always a good idea for the executives or administrators of an estate to check to see if the deceased had taken out a funeral plan. These are quite often stored with the deceased’s Will.
If there is no existing funeral plan, the executives of the deceased's Will or the nearest relative under the intestacy rules are responsible for arranging the funeral. The costs can be reimbursed from the deceased's estates, however there may be a deposit which has to be paid upfront.
Although the deceased's bank account will be frozen after their death, many banks are prepared to release funds in advance of obtaining a grant of probate to help pay for the funeral.
The executor/ administrator of an estate will need to carry out the following tasks to make the application to the courts for grants of probate
- Identify all assets in the estates
- obtain accurate valuations at the date of death of all assets
- complete HM Revenue and customs accounts for non-taxable estates
- complete HM Revenue and customs accounts for taxable estates
- deal with any payments of inheritance tax due in advance of obtaining the grants of probate
- completing probate papers and submitting the application to the court
The above sets out in simple terms some of the duties required some of the duties that an executive/ administrator is required to undertake before obtaining a grant of probate.
At Boyletts Law we are able to help you with all tasks required to make the application to the courts for the grants of probate and also after the grants of probate with the administration of the estates. Please see link below to find out more about how we can help you.
When a person dies without a valid will their estate is administered under the rules of intestacy. This is referred to as dying intestate. There are strict sets of rules surrounding an intestacy which governs who inherits from the estates.
Who inherits under the rules of intestacy is determined by the value of your estate but can include the following:
- Spouse or civil partner (unmarried couples are not included)
- children grandchildren great grandchildren
- siblings or their children
- half siblings or their children
- uncles or aunts or their children
- half uncles or aunts or their children
- if there are no known relatives then it passes to the State
The cost of Probate varies on the complexity of the application. The Court Application Fees for Probate are £155 if you instruct a Law firm and £215 if you are looking to do it yourself. If the Estate has a value of less than £5,000 there is no Application Fee.
The cost of completing the HMRC Inheritance Tax forms and Probate papers varies between Law firms however more and more legal services are providing this service on a fixed fee basis.
Probate is a document issued by the Court. In order to make the application for Probate, you must complete the appropriate HMRC Inheritance Tax Account and Probate papers. The appropriate Inheritance Tax account depends on the value of the Estate and whether or not the Estate is Taxable.
There are a number of potential exemptions available to an Estate which you can claim when completing the Inheritance Tax papers and these will depend on the personal circumstances of the Deceased.
This is not an easy question to answer, as it is often reliant on third parties providing information and responding to correspondence.
From submitting the application to the Probate Court, Probate usually takes between 4 to 6 weeks, and this is on the basis that the application has been submitted successfully and all appropriate HMRC requirements fulfilled. You can obtain Probate by seeking the advice of a qualified Lawyer who specialises in this area of Law, or your can complete the application papers yourself. The application process includes completing HMRC Inheritance Tax papers and the appropriate documentation to submit to the Court. The complexities of Probate range depending on the personal circumstances of the Deceased.
When you are appointed as an Executor in someone’s Will, or if you are the Legal Administrator when there is no Will (known as Intestacy), you may have to apply to the Court for a Grant of Probate. A Grant of Probate is a legal document which will give you the authority to distribute the Estate of the Deceased according to the instructions in the Will, or the rules of intestacy. Probate is not always required and this will often be dependent upon the value of the Assets in the Estate, or if there are complexities within the Estate which require you to have Probate to show your legal authority.
Probate is always required when the Deceased left a property in their sole name.
As Executor or Personal Representative, you will not have to pay Inheritance Tax from your own funds, however you are responsible for making sure that any Tax due is paid from the Estate.
Inheritance Tax falls due 6 months from the date of death and the relevant sum will need to be paid at this time, or HMRC will charge interest on any amount which has not been paid.
All financial institutions where the Deceased held Assets will need to be written to, to obtain accurate valuations as at the date of death. Valuations will also need to be obtained of the Deceased’s property and personal effects.
As Executor or Personal Representative, you are personally responsible for paying any outstanding liabilities, if you distribute the Estate to Beneficiaries without checking for creditors. You can claim this money back from the Beneficiaries, however this may be difficult if they have already spent their inheritance.
In most cases, you will be aware if money is owed from an Estate, such as Inheritance Tax, secured debts such as a mortgage, funeral and testamentary expenses and unsecured debts, such as credit cards.
This responsibility, however, can be passed to the Beneficiaries by placing a Notice in the local paper where the Deceased lived and the London Gazette. This Notice will expire after 2 months and therefore, as Executor or Personal Representative, you will have no more responsibility.
The complexity and process for obtaining Probate is different in each case. Quite often, following a bereavement, there may be complicated steps such as ascertaining the value of the Estate and completing complicated Inheritance Tax papers, which if not completed correctly, could result in the Estate paying more Inheritance Tax than necessary. There is also the added pressure of Beneficiaries and ensuring the Estate is distributed correctly.
This can be a very stressful and pressurised time for the bereaved family and more than often, legal advice from a Probate Lawyer is required to ensure that all appropriate steps are taken and all papers are completed as efficiently as possible.
Law Firms and legal professionals now have a direct portal with the Court to be able to submit Probate applications directly. This speeds up the whole process without having to have any face to face contact or risk the delays with the post.
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