What is Probate? The Basics
What is Probate?
Where a person leaves a Will, the issuing of the Grant of Probate is the legal appointment by the Court of the person (or people) nominated as executors in the Will and therefore entitled to administer the estate of the deceased person.
This is so financial institutions, the Land Registry and other 3rd parties who may have an interest in the estate can know who they should deal with to resolve the estate.
Strictly speaking, a Grant of Probate is only issued to Executors named in a Will. Where there is no Will, the Courts will actually issue Letters of Administration, although this is often still referred to as “Probate” in the wider world. The person who obtains the Letters of Administration is known as the Administrator and there are set people entitled to apply in these circumstances.
Is Probate always required?
In certain limited circumstances, a Grant of Probate may not be required to be obtained. Primarily this is where the estate is either financially very small (if an estate is worth less than £5,000) or if an estate comprises solely of jointly owned assets that pass automatically to a co-owner.
On a practical basis, most banks and building societies operate their own financial cut off level before they insist on Probate being provided to them based upon their own tolerance of risk if they provide money to the wrong person. This can be as low as £6,000 and range up to £50,000 or higher, although most have a cap of around £25,000 to £30,000. If the deceased only had bank accounts and these may not hold significant funds, it may be worth checking with the institution if they require a Probate to close the account.
Is getting Probate the only thing Executors have to do?
Obtaining the Grant of Probate is only one key part of administering an estate and the Executors, regardless of whether a Grant of Probate is required, have important legal tasks to undertake as part of the estate administration as a whole. Fundamentally these include:
- valuing the estate.
- safeguarding property and high value contents, including insurance of the same.
- reporting and paying any inheritance tax.
- Obtaining the Grant of Probate.
- Encashing or transferring in the assets of the estate in a tax efficient manner.
- Liaising over the clearance, marketing and sale of any property.
- resolving any income tax returns outstanding by the deceased to the date of death.
- Reporting any income tax during the estate administration period.
- Dealing with any claims or contentious issues.
- Placing Trustee Act Notices.
- Preparing Estate Accounts.
- Making final distributions in accordance with the Will.
How do I get Probate and administer an estate?
There are three main options for an Executor when obtaining a Grant of Probate:
DIY Probate
It is acceptable for an Executor to decide to apply for the Grant of Probate and administer the estate in person. Although this is the cheapest way for a Grant to be obtained and an estate administered the Executor needs to be aware of the time an administration will take and the risks to them personally if they do not ensure everything is tied up on completion of the estate. The role of Executor is a legal appointment with legal obligations that can have personal consequences if they are not undertaken fully.
Grant of Probate Only Assistance
If an Executor decides that they need some assistance with the application to HMCTS Probate for the Grant of Probate to be issued, but may not need help with the other stages of the estate administration, they can choose to have help solely with the Court application and any associated inheritance tax filing requirements.
The Executor would be relied upon to carry out the basic tasks such as obtaining the valuations of assets and liabilities however the legal paperwork and forms would be completed by our team of solicitors.
This option means the Executors can be assured that the paperwork has been completed correctly. Once the Grant of Probate has been obtained it will be provided to the Executor and they will need to distribute the estate and carry out other tasks such as preparing the estate accounts.
Full Estate Administration.
If at the beginning, or during the administration of the estate, the Executor wishes to appoint professionals to deal with the entire administration to ensure the role is undertaken correctly, they can instruct our firm to undertake the entire estate administration on their behalf.
This may be due to the complexity of the estate, especially if agricultural or business property forms part of the estate, time constraints to undertake the administration, geographical elements meaning it may not be practical to administer the estate from afar, or simply to have peace of mind that the administration will be undertaken correctly, and they are not personally liable for failure to do so.
Summary
The above is a brief overview of Probate and highlights some of the key tasks required to be undertaken by Executors. It is not exhaustive and indeed every person is unique and so no two estate administrations are alike. Where you have been appointed an Executor under a Will and would like advice on undertaking the estate administration then contact our specialist Probate teams across our office to ensure we can give you tailored advice.
