What is Probate and When is it Required?

It’s not a pleasant prospect, but at some point, during your life you will lose a loved one and probate may be needed. During this traumatic time, it can be very daunting not knowing what to do or what happens to their possessions and property. Many people do not know what probate is until they are faced with the responsibility of dealing with a loved one’s estate.

This guide will help you understand what needs to be done when dealing with the estate of someone who has died.

What is Probate?

Probate is ultimately about managing who gets what from a person’s estate. When someone passes away, their possessions, money and property are known as their estate. Someone needs to sort out who gets what from this estate. This person is referred to as the ‘Personal Representative’ or ‘Executor’ of the estate and is usually arranged in a persons Will. What happens to this estate and the process that is undertaken is collectively known as probate.

When is it Required?

Probate is required for most aspects of estate administration, depending on the size of the estate. Probate will normally be necessary in the following circumstances:

– The deceased owned property and/or land

– The deceased owned stocks or shares in their sole name

– The deceased had money in their sole name

– Any part of the estate administration is disputed through legal proceedings

If the person who has died had an estate worth over £5,000, it is likely probate will be needed. This threshold will vary and could go up to £50,000. Checking the estates bank’s probate requirements is a good first step in determining whether the process of probate is needed. 

If you are still unsure, our expert probate solicitors can help you to determine whether probate is required in your case. 

When is it Not Required?

There are a few occasions where the process of probate may not be required, including:

– The deceased only owned property or bank accounts jointly with another person

– If the deceased was insolvent and had more debt, tax and other expenses than assets

If the person who has died owned property or bank accounts with a living spouse, for example, the ownership will pass onto the other owner under the right of survivorship therefore probate will not be needed.

Do I Need Probate if There is a Will?

The presence of a Will has no impact on whether probate is needed. The probate procedure is very similar regardless of whether there is a Will or not and is primarily based on the financial situation of the person who has died together with the type of assets they own and how they own them. If in the Will an executor of the estate has been made clear, a ‘grant of probate’ needs to be applied for. A grant of probate gives official authority for the Executor administer the estate.

Responsibility of an Executor

If you are appointed an Executor, you are responsible for dealing with the probate, and this involves:

– Gathering any assets, e.g., money left in bank accounts

– Paying any bills, including various taxes

– Distributing what’s left according to the will

If the deceased did not have a Will, this makes the process difficult.

How Does Probate Work When There is Not a Will?

Nearly half of Britons over 55 do not have a Will, so this is not uncommon. If no valid will has been left, the law dictates who is entitled to apply for probate. The rules broadly stipulate that the next of kin is entitled to apply for what is known as a ‘Grant of Letters of Administration’ but it can sometimes be complicated working out who is classed as the next of kin in accordance with the legal provisions.

Probate may be even more complex with laws known as intestacy rules governing how their estate should be distributed. Unmarried or divorced partners normally don’t inherit anything under intestacy rules.

The rules of intestacy follow a hierarchy of who should benefit from the estate. This order is as follows:

– Spouse or civil partner

– Children/grandchildren

– Parents

– Siblings

– Grandparents

– Uncles and aunts

How do I Apply for a Grant of Probate or Letters of Administration?

To be clear, a ‘Grant of Probate’ is needed for an executer to manage a person’s estate who has been appointed. A ‘Grant of Letters of Administration’ is applied for by the next of kin when there is no Will.

A Solicitor can help with more than just administration duties, but can also:

– Offer invaluable advice regarding the terms of the will and explain what will happen because of decisions defined in the Will

– Provide advice and information to you regarding your responsibilities as an Executor

– Obtain valuations of the assets and liabilities in the estate

– Deal with any tax that is payable or eligible for a refund

– Deal with a complicated estate left by someone who did not make a Will

– Challenge the validity of a Will if needed

– Help deal with complex arrangements in a will, such as assets held in a trust

– Help if the will contains any foreign assets

– Paying any liabilities out of estate funds

– Distributing the estate

– Deal with any inheritance tax

Appointing a probate solicitor, like myself, can make the process easier and take away some of the stress for you. Not only this, but make sure that you have the best and efficient outcome possible.

Do I need Probate For a Small Estate?

It depends on the size of the estate and the value of individual assets. If the estate is small, with no property and less than £5,000 in the bank, probate isn’t likely to be needed. This is because some assets and small amounts of money can be dealt with without probate.

Do I Need Probate to Sell a House?

If a house is held in the deceased person’s sole name, then a probate will be needed to sell it. If the house is held as joint tenants and the surviving co-owner wants to sell the house, they can do so with a copy of the deceased’s death certificate.

To sell a house that is owned as tenants in common, probate will be needed.

Do I Need a Solicitor to Deal With Probate?

You should never underestimate the emotional and physical burden dealing with the estate of a recently deceased loved one. The task of dealing with potentially large amounts of documents, ascertaining the assets and liabilities included in the estate, ensuring that any tax issues are resolved correctly, and all tax is paid, applying for a grant of probate in addition to being under pressure from beneficiaries may feel like too much at a time when grieving is all consuming. It is a lot to deal with at a time when you probably can’t face it, but that is what is required of you if you are the Personal Representative or Executor.

A solicitor will help you with all of this and take away a lot of the stress for you. If the deceased had made a will, probate is likely to be more straightforward, however this still includes:

– Registering the death

– Tracking down the will

– Dealing with documentation for grant of probate

– Dealing with inheritance tax

– Closing bank accounts, paying off debts

– Dealing with the deceased’s life insurance documentation, having the estate valued and sharing out the remaining assets.

A Solicitor can help with probate by:

– Dealing with paperwork, including the application to obtain a grant and the Inheritance Tax form, sending these to the registry and providing copies to you

– Advising you regarding the terms of the Will

– Providing advice and information to you regarding your responsibilities as an Executor

– Obtaining valuations of the assets and liabilities in the estate

– Dealing with any tax that is payable or eligible for a refund

– Dealing with a complicated estate left by someone who did not make a Will

– Challenging the validity of a Will

– Complex arrangements in a Will, such as assets held in a trust

– The estate if it contains foreign assets

– Encashing the assets and paying any liabilities out of estate funds

– Distributing the estate

– Inheritance tax

The main benefit of having a Solicitor help with probate, like myself, is that this process will be made much easier and take away some of the stress for you. Not only this, but we will make sure that you have the best and most efficient outcome possible.

How Much Does it Cost?

This will depend on your individual circumstances, but we are transparent with our fees which can be found here.

How Long Does Probate Take?

Estates can be complex files to deal with which can include unexpected problems, disputes between beneficiaries and personal representatives, tax issues, and business interests, for example.

Estates which are relatively simple to deal with e.g., there is a valid Will, there is no more than one property and 4 bank accounts, no more than 3 beneficiaries who are identifiable and living in England and Wales, no dispute between the beneficiaries, there is no inheritance tax to pay and no claims against the estate, then we would ordinarily expect the case to last between 3 and 9 months.

In cases where there are complicating factors and inheritance tax to pay some cases can last up to 18 months.  When we meet with you and have obtained the information we require, we will be able to provide you with more information as to the likely timescale it will take to complete your file.

How We Can Help You

With our probate complete service, we take full responsibility for getting the grant of probate and dealing with the legal, tax, property, and estate administration affairs. And we provide you with a written fixed fee quote for dealing with probate on your behalf.

Lindsey Rawson, head of our Wills, Trusts & Probate department, can help you create an estate plan, help draft a Will, support you to deal with a persons estate when they pass away and get all your affairs in order ready for retirement. She specialises in Wills, trusts, powers of attorney, probate and inheritance tax planning.

Lindsey acts for clients in South Yorkshire and beyond and can be contacted by calling 0114 249 66 66 or emailing enquiries@howellsllp.com