If you find yourself having to sort out the affairs of someone who has recently died, you’ll likely have to go through probate. If you find yourself asking ‘what is probate?’ and ‘when probate is required?’, we’ve pulled together this guide to help you understand the process you have to go through when a family member or friend dies.
What is probate?
Probate is the process of obtaining the legal right to deal with the property, money and possessions of someone who has died.
When someone dies, the task of sorting out their estate normally passes to an executor – a person named in the deceased’s will. An executor is usually a family member or a trusted friend of the deceased who has previously agreed to take on the task of probate. In some cases, a professional executor such as a solicitor may be appointed to take charge after a person’s death.
If a person dies without leaving a valid will – described as dying intestate – then the task of dealing with the estate passes to a family member in a specific legal order. That person is known as the administrator.
Learn how to make a will – from dividing your estate to choosing an executor – with our guide Making a will: how to make a will.
What is probate – applying for a Grant of Probate
Whether you are the executor or the administrator, there are specific probate rules you must follow. Understanding what is probate and when probate is required is important.
You’ll need to notify the relevant authorities and distribute the deceased’s estate. In both situations, you must apply for the legal right to take control of the estate as the deceased ‘personal representative’. If you’re the executor of a will, you must apply for a Grant of Probate. Administrators must apply for Letters of Administration, which give them the same rights as an executor.
Once granted, an executor can start to deal with the deceased person’s assets in accordance with their will. If the person died intestate, the law will determine who should receive everything.
You can find out more about being an executor or an administrator, as well as details about what is probate at the government’s wills, probate and inheritance website.
When is probate required?
It may not be necessary to apply for a Grant of Probate or Letters of Administration if the estate of the person who died is worth less than £15,000, or if they jointly owned property and other assets that automatically pass to a surviving spouse or civil partner.
Can I arrange a funeral before probate is complete?
It’s very likely you’ll need to organise the deceased person’s funeral before you apply for a grant of probate. While banks require a Grant of Probate before transferring the deceased’s funds in accordance with their will, most will release the money to cover funeral costs.
It’s worth discussing payment terms with the funeral director. Many are willing to defer payment until probate is complete, so expenses can be taken directly from the deceased’s estate. If you have to pay funeral costs ahead of time, be sure to keep all receipts so you can claim money back from the estate once probate is complete.
The probate process step-by-step
While you don’t need to be a qualified solicitor to handle probate, you will need to follow a strict legal process as follows:
Look for the deceased’s will – One someone dies, check to see if they’ve left a will as there is a different process to follow depending on the outcome. If they do have a will you’ll need to execute it; ensure the wishes of the deceased are carried out and that their estate is divided according to the terms of their will. If there isn’t a will you’ll need to follow the legal inheritance process, which determines who inherits from an estate.
Value the deceased’s estate – As the executor or administrator, you must value the deceased’s estate. Begin by totalling the value of all the deceased’s assets. This includes items such as property, private pensions, savings, investments and valuable items such as cars, jewellery, antiques or collectables. This also includes payouts from any life insurance policies the deceased held, proceeds from the sale of shares, and policies such as funeral payment plans.
Check pensions to see if any funds can be inherited. Any gifts that the person gave away in the seven years before they died will need to be included. Then you’ll also need to find out how much debt they have if any. This may include mortgage loans, credit cards or bills owed. Funeral costs should be included as part of the debt if the estate is paying for the funeral. Subtract all debts from the assets total to determine the value of the estate.
Report the estate value to HMRC – You must report the gross value of the deceased’s estate to HMRC and pay Inheritance Tax (IHT) if applicable. The current inheritance tax threshold is £325,000 per person or £650,000 for a married couple – as long as the first person to die leaves their entire estate to their partner. Any amount over this limit is subject to a 40% tax bill.
If tax is due, you will need to pay some or all of it before you can be granted probate. If the deceased has enough in their bank accounts, you can pay HMRC the full amount. If the estate’s assets are tied up in property or shares, only a tenth of the total is due in advance with the rest due in instalments as the estate is wound up.
Apply for a Grant of Probate – You can apply for probate online via the Probate Service or download the probate application form PA1 and apply by post. It worth knowing that the online service only accepts a certain number of applications each day, and you’ll still need to supply supporting documents via post. These include original copies of the will and death certificate – it’s best to use a signed-for postal service to send these. Using the online service means you can pay the probate fee online, as well as save and return to the online form at a later date.
If you apply by post, you’ll be required to swear a legal oath confirming that the information you’ve given is true to the best of your knowledge. This is done at your nearest Probate Registry or at a local solicitor’s office. The online form requires you to confirm a statement of truth where you state the information you’re providing is correct.
Collect the estate’s assets – Once probate has been granted, you can contact banks and other financial organisations to release the deceased’s assets and collect money from the sale of the person’s property. You will need to provide a copy of the Grant of Probate and supporting documents to allow the bank to release funds.
Pay outstanding debts – Any debts including unpaid utility bills or funeral costs can be paid at this stage, as well as loans and larger bills such as mortgages.
Distribute the estate assets – Money and assets can now be passed on to the people named in the will or according to intestacy rules if there is no will.
Final accounts and closure – At the end of the process, you must create a final set of estate accounts that show all the money received and paid out. These, along with supporting paperwork must be safely kept for at least 12 years in case there is a claim against the estate or someone contests the will.
See our guide to.contentious probate – contesting a will.
What is probate – how long does probate take?
Probate can take a long time. The more complex the estate, the longer the process. Expect probate to take up to nine months for a typical estate, which is the time from when the deceased died to when the estate’s assets are distributed to its inheritors and final probate accounts are complete. A simple estate of a few bank accounts and total assets that fall under the IHT thresholds, however, may take just a few months.
Do I need a professional to handle probate?
Probate is a complex and time-consuming process. As an executor or administrator, you’ll need to make legal statements about the value of the estate. And if some contests a will or it’s a contentious probate process, the process can be emotional and difficult. It’s no wonder that some people consider getting professional help with the probate process.
As an executor or administrator, it is entirely appropriate to seek legal advice, especially if the estate is complicated.
Consider getting legal help if:
- The estate is very complex, with lots of assets held in different kinds of investments and trusts;
- There are overseas assets that need to be liquidated and repatriated;
- The will is likely to be contested, such as family members being left out of the will and who are likely to make a claim on the estate;
- There are complex tax matters, such as income being generated by the estate such as on-going business activities;
- The estate is insolvent and unable to pay its debts;
- The deceased was a non-resident in the UK for tax purposes.
A solicitor will charge their usual legal fees for advice but, if they act as the executor, they may charge a percentage of the entire value of the estate. Be sure you get a full idea of the costs involved for the legal help before you appoint a solicitor. Assess the work involved and remember that your role is to act in the interests of the estate until probate is complete.
