Probate is the legal process of proving a Will or the laws of Intestacy. It is during the probate process that the executors or administrators’ authority is confirmed with a grant and inheritance tax is settled if applicable.
The term probate is used in several different ways. It can sometimes be used to refer to administering the estate but actually, probate is just one section of the work that is involved in administering a deceased’s estate.
How does the probate process work?
To put it simply, the probate process involves gathering information about the estate and completing a set of probate and inheritance tax applications and providing them to the necessary courts who will issue a grant of probate or letters of administration.
Probate solicitors can help an executor, the person responsible for undertaking this work, execute their duties and also advise on a living person’s will.
What is probate law?
Probate law is specifically the judicial system that deals with the Will and estates of a person who has passed away.
Some examples of laws or rules that fall under the probate judicial system are the rules of intestacy, contentious probate (disputes over the Will or estate) and inheritance tax (the 7 year rule, gifts with reservation etc.)
What is the purpose of probate?
The purpose of probate is to ensure that the will is valid, that the correct people are administering the estate and to settle inheritance tax with HMRC (if applicable).
Therefore, the purpose of the probate process is to obtain a grant of probate which gives a person the right to deal with a deceased person’s affairs.
Why would you need probate?
The probate process allows your estate to be collected and dispersed in the correct manner and prevents someone who is not entitled from accessing the estate. Any outstanding debts and taxes must be paid before any inheritance is distributed to the beneficiaries.
A Grant of Probate or Grant of Letters Administration applies in the following situations:
– If the deceased has property solely in their name or as tenants in common
– If the deceased leaves assets or money totalling £5,000 or more
– If the deceased has stocks or shares
– If the deceased had certain insurance policies
There are circumstances in which it is not necessary to go through the probate process, and that is only when the person who has passed away has left assets of low value (generally less £5,000) or their assets were owned jointly with another person. When this is the case those jointly owned assets will pass over to the surviving owner.
Does a Will have to go to probate?
A Will does not always have to go to probate. The need for probate is dependent on the assets in the estate. However, if probate is required and the deceased left a Will, the original will must be submitted to the probate registry with the application. The Last Will and testament will become a public record and will not be returned.
If the person who has died leaves a valid will, then the executor may need to go through the probate process to apply for a ‘Grant of Probate’ from the courts, depending on the assets they owned and their value. The grant is a legal document that verifies that the executor has the authority to deal with any property, money or possessions left by the deceased.
What happens during the probate of an intestate estate?
If the person who died has not left a will, a close relative can go through the probate process to apply to the section of the court known as the Probate Registry, for a ‘Grant of Letters of Administration’. If the grant is given, the applicant becomes an Administrator of the Estate. Similarly, to the Grant of Probate, the Grant of Letters Administration is a legal document, confirming the administrator’s authority to deal with the deceased person’s assets.
How to deal with probate
Probate will only be granted if the will’s executor has paid off some, or all of the Inheritance Tax due on the estate.
- Obtain the death certificate and collect the Will (if there is one).
- Collect all the information you can about the estate’s properties, assets, chattel and liabilities.
- identify which inheritance tax and probate applications you will need.
- Complete the inheritance tax and probate application and submit them to HMRC and the probate registry and pay the £215 application fee.
- Wait for the probate office to process your application (settle any inheritance tax if applicable) and receive your grant.
- Collect and transfer the estate’s assets.
- Settle any debts or liabilities against the estate.
- Distribute any bequests or legacies.
- Distribute the residue of the estate.