- What is probate and how does it work?
- What types of assets are subject to probate?
- What is the Grant of Probate?
- How to apply for probate
- What if probate is contested?
- Do I need a solicitor for probate?
The responsibility of managing a loved one’s estate is a great honour, but can also be a great burden. Getting to grips with probate at this emotional time can be a challenge, especially if the estate you’re responsible for is less than straightforward. Having a specialist in your corner gives you the security to carry out their wishes with total confidence and clarity.
You can deal with probate on your own, but did you know that this leaves you personally liable if anything goes wrong during the process? Our specialists at Giles Wilson help you understand what probate is, how to apply for it and how to keep yourself secured against the various risks and complexities associated with this area of the law.
Below is a comprehensive article covering the most frequently searched and asked questions relating to: What is probate and how does it work?, What types of assets are subject to probate?, What is the Grant of Probate?, How to apply for probate, What if probate is contested? and Do I need a solicitor for probate?
Probate is the legal right to manage the estate of a deceased person. Before the executor(s) named in the deceased’s Will (or the person’s next of kin if they die intestate) can claim, transfer, sell or distribute any of the assets within the estate, they will usually need to apply for probate.
The ‘probate process’ is when the executor handles the various legal and financial responsibilities associated with their role. These include:
In short, probate services deal with someone’s money, possessions and final wishes after they die, ensuring that the executor(s) are protected from any liability.
An executor (or in certain cases an administrator) is a person who is responsible for carrying out the final wishes of a deceased individual per the terms of their Will. This is often a family member or close friend, but solicitors are also often appointed as executors due to the complex nature of these cases. This responsibility starts on the deceased’s date of death.
In relation to probate, the executor (or executors) is the person responsible for receiving the Grant of Probate and distributing the estate to the relevant beneficiaries when this is granted.
It is important for an executor to realise that they have personal liability and financial responsibility over the deceased’s estate. This means that if complications get in the way of applying for probate or in distributing the estate, they can be found liable for any irregularities, even if this wasn’t their intention.
For example, imagine the deceased was bankrupt when they passed away, and subsequently their estate was insolvent. If an executor intermeddles with a bankrupt estate, they can be seen to be taking responsibility for this debt, and therefore expected to pay it back to the relevant parties. Instead, it is better to refuse to take up the role of executor and allow the creditors in question to take the money they’re owed out of the estate, protecting your own assets.
There are similar risks when you, as the executor, transfer assets to someone who has declared bankruptcy. In this instance, you can be found liable when the money should have gone to the liquidator instead. That’s why at Giles Wilson we perform bankruptcy searches against all beneficiaries to protect executors from falling liable.
Being able to identify any difficulties like this is crucial before you make an application for probate, and one that people don’t often consider because many banks, building societies and IFAs make the process sound far more straightforward than it actually is. As these groups do not need to conform to the same regulatory responsibilities as solicitors, where we are both regulated and required to carry indemnity insurance, they often will not consider the protection of your assets in these scenarios.
This is why the advice of a specialist probate solicitor is valuable to ensure you’re indemnified against all complications on the path to fulfilling a loved one’s legacy.
If probate is required to unlock a person’s estate, as the executor, it is your legal obligation to complete the probate process to ensure the estate’s assets are not frozen and the beneficiaries receive the inheritance they are owed.
If, as an executor, you do not deal with the probate process appropriately and in a good timeframe, this can result in significant tensions between family members and other loved ones.
In situations where the executor refuses to apply for probate, it is possible for the beneficiaries or next of kin to write to them to give them notice that they will be applying to the courts to appoint a different administrator.
It is a common misconception that when a person passes away, all assets within their estate will require a Grant of Probate to be accessed. In fact, it is a little more complicated than that, which is why it’s always helpful to speak to probate solicitors who can advise on when you need to receive this and when you don’t, saving you time and expense down the road.
In general, you will need to apply for probate for the following types of assets:
Conversely, a Grant of Probate is not usually required for the following assets:
However, while a Grant of Probate may not be required, their assets could be attached to tax or other liabilities that you will be required to resolve.
There are many variables in these scenarios, so it is important to speak to an experienced probate solicitor who’ll advise you as to if you require a Grant of Probate to distribute a deceased person’s estate.
Household items are considered part of the probate estate. Any estate can be spot-checked and investigated to ensure they have been honest with the assets they’ve left their loved ones.
If household items are not clearly denoted in a person’s final wishes, they form part of the residue (the remaining funds in the estate after all specified gifts have been allocated).
The law is still evolving in relation to digital assets, such as social media accounts and information stored in the Cloud.
For instance, your Spotify account would not be subject to probate as you’re simply renting the space. However, if you purchased music and other media on your iTunes account, that would form part of the deceased’s overall estate, and thus may require a Grant of Probate to access.
As the law is still not entirely clear in relation to a deceased individual’s digital assets, the support and representation of probate solicitors can be vital in securing these if they are not specified as part of an individual’s estate.
A Grant of Representation is the overarching name for the grant you must receive to confirm that you have the authority to carry out probate on a deceased person’s estate.
The specific type of Grant of Representation you receive depends on your circumstances:
A specialist probate solicitor will be able to guide you as to which Grant of Representation you require before applying for the correct grant. This is important as, where probate services are required, it’s not proven that an executor is responsible for handling the deceased’s estate until after the Grant of Probate is confirmed.
Once the Grant of Probate is issued (if it is required), the executors or administrators can take the next step in the probate process: administering the estate. Before assets can be transferred to the beneficiaries, the executors will be responsible for collecting in, transferring or selling assets where appropriate, paying off any outstanding debts the deceased had and finalising any other affairs, even where relevant the rehoming of their pets.
Once these stages of the probate process are complete, the executor can distribute the estate to the relevant beneficiaries. This will hopefully be straightforward for you, but a variety of scenarios can complicate this (for instance, if the estate is insolvent).
Should you face these or further complications, the support of an experienced probate solicitor is invaluable in navigating these problems so you are never left liable either as an executor or a beneficiary.
As noted in our section on ‘What types of assets are subject to probate’, there are circumstances where you do not need to apply for a Grant of Probate, most typically when the deceased’s assets are of low monetary value.
Different banks and building societies have different frameworks over what requires probate. Let’s say your mother’s sole bank account had £20,000 remaining when she passed away, and the bank in question’s threshold for probate is typically £30,000. That means you’ll likely be able to access these funds without requiring a Grant of Probate.
However, you might still wish to apply for a Grant of Probate in these instances in order to establish that you have the right over the deceased’s body, assets and overall estate, if say you are in dispute with other family members over what will be done with their ashes.
It’s always worth seeking the impartial advice of experienced probate solicitors to give you peace of mind when applying for probate.
If you’re the executor for the deceased’s estate, you can apply for probate, or contact a specialist probate solicitor to apply on your behalf.
Before applying for probate, you have to estimate and report on the value of the deceased’s estate, and pay any Inheritance Tax (IHT) required on this. In practice, initially you will be required to only pay a certain amount of the total IHT owed to receive probate over the estate, allowing you to use the assets within the estate to pay the remainder.
This is a situation where working with a probate solicitor can be greatly beneficial for your situation. It is possible for the bank to release the first instalment of IHT as an undertaking, on the understanding that it will be paid back when you receive probate. The bank is far more likely to accept this undertaking from a solicitor.
You can then claim the tax you’ve paid back from the estate or the beneficiaries if you as the executor have had to pay it out of your own bank account.
The need to pay the necessary IHT before you begin applying for probate can prove difficult in situations where there are multiple executors and one is either refusing to agree to this or is otherwise being obstructive. If the value of the estate is sizeable, this delay can cause interest of IHT to grow rapidly. Our probate specialists have undertaken cases to remove an executor behaving this way in order for our clients to apply for a Grant of Probate and avoid paying further IHT on their loved one’s estate.
Once these formalities are handled, you are free to apply for probate online or by post. You can apply for probate online only if you’re the executor and you have access to:
After application, you’ll be informed of what documents you have to send to the probate registry. If you wish to apply for probate by post, speak to your probate solicitor for guidance.
The application fee depends on the value of the deceased’s estate:
(It is important to note that this application fee is likely to change in future.)
Whether the deceased individual left a Will or didn’t has no bearing on whether probate is required to access their estate.
If the value of the estate is determined to exceed the probate threshold and the assets were held in the manner outlined in ‘What types of assets are subject to probate?’, this service is required.
As highlighted in our section on what types of assets are subject to probate, if the total value of an estate is worth £5,000 or less, or a particular asset is worth this amount, it is considered a small estate and often won’t require a Grant of Probate to access. At £5,000+, it is more likely this will require you applying for probate.
However, it is important to note here that different banks or building societies have different policies as to what degree of the deceased’s funds they’ll release without a Grant of Probate. Some may have their threshold set at £25,000, others £50,000. If bank account savings below these thresholds are the only assets in the estate, you will not need to apply for a Grant of Probate.
Of course, it is recommended to speak to a trusted probate solicitor for reassurance that you will not need to receive a Grant of Probate to access the deceased’s estate.
Asking how long it takes to complete probate is much like asking how long is a piece of string. It depends on the nature of the deceased’s estate and assets, the beneficiaries selected and much, much more.
Our specialists have estimated that probate services take anywhere between 3 months and a year on average, depending on the complexity of your situation. But, it can take markedly longer – although unusual, it is possible for probate cases to extend into several years in particularly complex circumstances.
Say, for example, the Will of the deceased refers to a beneficiary who cannot be found. If a beneficiary is missing, you can’t finalise probate until they are found, as you can’t simply decide to give their part of the estate to another person after a set period of time (unless this is specified, such as an intestacy). We would recommend looking into a missing beneficiary insurance policy if this situation ever befalls you to ensure you’re protected.
Finding this person and verifying their status can extend the probate process significantly, as can bringing in genealogists to identify the right beneficiaries of a person where there is no Will and no obvious relatives.
Another scenario that can extend the probate process is when either some of the deceased’s estate is held abroad, or beneficiaries are living abroad. These cross-border situations will require those involved to adhere to the regulations and processes of the country that the assets are kept in (as well as UK law), as well as ID verification and checking where deeds are held for properties abroad, which all adds time to the process.
Other scenarios that can extend the time required to receive probate include:
Indeed, it is recommended to wait at least 6 months after receipt of the Grant of Probate to begin distributing assets, allowing time for people to make a claim under Contentious Probate. Waiting until these matters are settled makes the recovery and distribution of assets easier should the dispute result in changes to the distribution of the deceased’s estate.
It is possible to complete the probate process without legal guidance in straightforward circumstances. However, these cases can prove more complicated than they appear on the surface.
For example, say your grandmother passes away leaving £50,000 in a couple of bank accounts and was receiving money from her pension. On the surface, this is would be fairly straightforward to handle the probate for - it would simply be a case of transferring the money within these bank accounts to the relevant beneficiaries once the Grant of Probate has been confirmed.
However, if your grandmother was receiving pension credit that you were unaware that you needed to pay back to the relevant provider, you could be liable for not paying this back.
That’s why it always serves in your best interests to contact a probate solicitor. They’ll be able to examine the circumstances in greater detail to reassure you on whether you can complete the remainder of the probate process alone, or provide expert guidance to overcome any complications in managing a person’s estate and fulfilling their final wishes.
When probate is contested, this is referred to as Contentious Probate. This covers any dispute that arises from how a person’s estate is administered when they pass away, either as a result of the terms of their Will not being adhered to or belief that an individual has not received ‘reasonable financial provision’.
If you or another person objects to probate being granted to an executor, you can challenge this as a case of Contentious Probate.
This may involve the issuing of a caveat, which acts as an injunction that imposes a moratorium (waiting period). If you are the executor, you should take early advice if you find your application blocked by a caveat.
As mentioned in ‘Can I do probate myself?’, you do not necessarily need to contact a probate solicitor to complete this process.
However, various complexities and scenarios can affect how simple it is to receive a Grant of Probate and distribute an estate. The probate process isn’t always straightforward, and not having legal advice could open you up as the executor to liabilities surrounding a loved one’s estate, from Inheritance Tax obligations to issues surrounding missing beneficiaries, bankruptcies and cross-border requirements.
Working with experienced solicitors like our team at Giles Wilson can keep you reassured that your loved one’s final wishes will be fulfilled without issue.
The cost of probate, covering the process and your solicitors’ fees, will more often than not be paid out of the remaining value of the deceased’s estate, known as the residue.
The residue refers to the remaining funds left over in the estate when everything else outlined in the Will has been distributed. For example, if you leave £10,000 to your grandchild and the rest of your estate to your daughter, that remainder left to the daughter will be the residue.
Any liabilities, expenses and fees are only paid out of this residue, unless no other funds are available. Let’s say in the previous example the value of the deceased’s estate is £12,000, and there was £3,000 of expenses. This usually means the grandchild will receive the remaining £9,000, while the daughter receives nothing.
If the person dies intestate, the Rules of Intestacy will determine the value of the residue.
The responsibility of managing a loved one’s estate when they pass away can be an added strain at an already difficult time for you and your family. Our experienced probate solicitors lift the burden from your shoulders with clear advice and support across every aspect of applying for probate.
Working with a trusted solicitor during the probate process keeps you indemnified and protected each step of the way. We take time to understand the unique features of your case, help you understand and overcome the various risks and liabilities involved in securing probate, and provide constant reassurance that your loved one’s wishes will be carried out to the letter.
Get in touch with our probate specialists to protect yourself against any personal liability. Call us on 01702 477106 today, or pop into our offices in Leigh-on-Sea to speak to our solicitors directly.
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The expertise of our solicitors is regularly recognised by some of the profession’s most distinguished organisations. As well as being a member of a number of Law Society schemes, we have won awards at the Law Society Excellence Awards, the Halsbury Legal Awards and the Modern Law Awards. We have also received recognition in the form of the Lexcel mark of quality, a Legal 500 listing and a place on the shortlist of The Lawyer’s Boutique Firm of the Year.