What is probate?
- The permission needed to carry out the wishes in a Will, and;
- The process of managing someone’s estate after they pass away.
It includes applying for a Grant of Probate, paying any debts the deceased had, and distributing their assets as requested in their Will.
The executor of the Will is the person who administers probate. The deceased will specify in their Will who they want the executor to be.
How to start probate
The first step of the process is generally to obtain a grant of probate. This gives the executor the legal authority to begin the process of administering the deceased person’s estate (the process of handling the person’s belongings and money, including distributing it as laid out in their Will).
Applying for a grant of probate is almost always essential. There are only a few situations where probate may not be necessary, for example:
- The estate is worth less than £10,000.
- The deceased owned everything jointly with someone else, so the survivor will take on full ownership
- There is no Will (although the process of distributing the estate of someone with no Will is similar to probate)
In order to be sure they can administer the estate without applying for a grant of probate, the executor will need to write to each institution (e.g. banks) and provide a copy of the death certificate.
How long does probate take?
Obtaining a grant of probate usually takes approximately 12 weeks and in many cases can take much longer. You should then expect the process of probate to take about a year. However, it may take longer if:
- The estate is particularly large
- The Will is complex
- A dispute arises
- The estate contains assets abroad
How to apply for probate
You can only apply for probate if you are named as the executor in the deceased’s Will. You can either apply for probate yourself or instruct a solicitor or probate practitioner to do it on your behalf.
There are a number of steps you will need to take in order to apply for probate.
- Register the death
This needs to be done within 5 days. It is recommended that you buy some back-up copies of the death certificate at this point, as you will need them throughout the process.
- Value the estate
You will need to establish the deceased’s assets and debts, which in some cases can be simpler than others. You will need to contact:
- Any banks the deceased had accounts with
- Lenders with whom the deceased had loans from, including mortgages
- Fund managers or stockbrokers
- Pension providers
- The Department of Work and Pensions
- The relevant local authority in case there is outstanding council tax
- HMRC in case there’s outstanding tax
You can use the government’s Tell Us Once service, which lets you report the passing of your loved one to most government organisations in one go. When you register the death you will be told whether this service is available in your area, and if it is you will be provided with the phone number and a unique reference number by the registrar. Be sure to check which organisations will be notified, as there may be some that you still need to contact yourself.
Each time you inform a financial institution that the deceased had an account with, you will need to send them a certified copy of the death certificate (hence why it is essential to purchase extra copies).
Once this has been done the deceased person’s assets will be inaccessible until a grant of probate has been obtained.
As part of this process you will need to get the property valued, if the estate includes one. You can value it yourself by looking at similar houses in the same area, but if your estimate puts the total value of the estate close to or over the inheritance tax threshold of £325,000, it is a good idea to get a written valuation from a Chartered Surveyor.
If there are any other sizable assets, such as an artwork collection, it is a good idea to get it professionally valued.
- Fill out inheritance tax forms
You will need to fill out an inheritance tax form regardless of whether there is inheritance tax to pay, and you will need to do it before you apply for probate.
As a general rule, if the estate is worth less than £325,000 there shouldn’t be any inheritance tax to pay and you will need to fill out form IHT205 if the deceased died on or before 31st December 2021. If there is inheritance tax to pay you will need to complete form IHT400.
You will need to provide the inheritance tax reference and the value of the estate, as well as upload a copy of the death certificate. You will also need details of any cash gifts made by the deceased within seven years of their passing, as they may be taxable.
Read more about inheritance tax of gifts made before the person passes away.
You can read more about inheritance tax applications and fill out inheritance tax forms online.
- File probate applications
The fourth step is actually applying for probate. You can apply for probate online or by post. You will need to fill out a probate application form (PA1P) if the person left a will, and a PA1A form if they didn’t.
You will also need to confirm the details you have provided are correct by signing a statement of truth – a declaration that confirms the facts stated in the document are true.
- Pay probate fees
Applying for probate is free for estates under £5,000. For estates worth in excess of £5,000, the costs are as follows:
- £273 in England and Wales (although this is lowered to £155 if you apply through a solicitor)
It is worth paying to get several extra copies of the grant of probate, usually at least 5 extra copies. If you order them at a later date, the charge is more per copy than at the outset.
- Pay inheritance tax
If inheritance tax is due it must be paid in advance. As long as the deceased person has the funds, this can usually come from one of their accounts (you will need to provide the bank with an IHT423 form).
Where a large proportion of the estate is freehold/leasehold property or certain qualifying private company shares, HMRC may accept inheritance tax in instalments, although usually at least 10% will be required in advance.
Once this has been done, hopefully probate will be granted and the process of the executor distributing the person’s assets can begin.
- Release a death notice
Whilst not an official step in the process of obtaining probate, it is advised to put a deceased estate notice in The Gazette once probate has been granted. Whilst this may seem old-fashioned, it is important that any unidentified creditors can come forward before the deceased’s estate has been distributed. Otherwise you might be held personally responsible for any remaining debts.
What if probate is contested?
There are several reasons why probate could be contested.
Granting probate could be prevented or delayed by someone known to the deceased entering a caveat. This could happen if, for example, there are questions about the legitimacy of the Will.
When someone does this, they will need to state the reason for the caveat within eight days. If they don’t the caveat will be removed.
If they do state the reason, it will be for the court to decide who probate is granted to. It is possible to contest a Will after probate has been granted, but the process is a little more complex.
Whilst it is possible to carry out the probate process yourself, many people choose to hire a solicitor to do it for them. Based in the heart of Muswell Hill, Layzells has been providing quality legal services to the local community for many years. Our experienced lawyers in the Private Client Department have the knowledge and skills to handle a wide range of legal matters and can act for you to obtain grant of probate or letters of administration and carry out estate administration on your behalf.
Talk to our Probate Solicitors in Muswell Hill
Our Private Client Solicitors have vast experience in private client matters including Lasting Powers of Attorney, Wills and Probate. If you have an enquiry or would like to learn more about how Layzells Solicitors can help you, please call 020 8444 0202, email us or fill out the enquiry form below.