Probate refers to the process of administering a person’s estate after they have died and in accordance with the written instructions in their will.
Point to note: probate is a term that is often used generically and, although legally incorrect, can commonly refer to any situation where someone has died whether there is a will or not.
If there is no will, or the will fails to deal with the entire estate, then the deceased is described as dying ‘intestate’. In this situation the estate is distributed in accordance with the laws of intestacy. We cover this process in more detail in a separate article, “What is Intestacy?”
The deceased’s property, money and possessions are referred to as ‘their estate’. This could be a large estate with millions in the bank, numerous stocks, shares and investments and several properties or, a low value estate with just one bank account, a few items of furniture and some personal possessions.
The Executor of a will
An Executor is the person who applies for the grant of probate and has the legal entitlement to administer the estate. The Executors are normally named in the will. The Executors may be beneficiaries under the terms of the will which means they are going to inherit and benefit from the estate. This situation is common and legally acceptable. The Executors may also be a professional service provider such as a probate solicitor. If no Executor is named in the Will, or the named Executor is unable or unwilling to act, then a different process needs to be followed and a person with legal entitlement to do so, will need to apply for letters of administration rather than a Grant of Probate.
The grant of probate
The grant of probate is the legal document that gives you the right to administer and finalise the deceased’s estate. The Executor (s) will need to provide copies of this document to every organisation or institution they deal with on behalf of the estate.
Is probate always required?
Yes, if the estate consists of assets that need to be distributed. You will not be able to administer the deceased’s estate without a grant of probate (or potentially letters of administration) which is the legal document giving you the power to do this.
Are there exceptions?
You will not need to apply for probate if the person who died jointly owned land, property, shares or money which will automatically pass to the surviving owners – this is usually the case between husband and wife and civil partners. There are some occasions when bank accounts, stocks or shares, are held in the sole name of the deceased but probate is not required. This is generally when the value is low and it is entirely at the discretion of the financial service provider concerned.
The duties of an Executor are numerous and may include:
- Arranging the funeral
- Informing ALL relevant people and organisations about the death – ranging from GP’s and utility providers to HMRC.
- Valuing the deceased estate
- Opening a bank account on behalf of the estate
- Finalising tax affairs including any inheritance tax due
- Applying for the grant of probate
- Identifying and locating beneficiaries
- Selling or transferring ownership of property
- Finalising finances – closing banks, paying outstanding debts e.g. credit cards
- Selling or transferring ownership of stocks and shares
- Selling, disposing of or, distributing personal possessions
This is not an exhaustive list of duties and it is possible that not all will apply because every estate is different.
Can I do probate without a probate solicitor?
Yes, but be sure to understand the responsibility you are taking on before you commit to becoming an Executor because the law surrounding probate can be complex. It is a time-consuming process and there are risks of being an Executor of an estate. If mistakes are made you can be held personally liable – even for genuine mistakes. You may also find yourself in the middle of a dispute between beneficiaries or fellow Executors.
If it’s likely that the probate is complex you it is always advisable to seek professional advice. Examples of complex probate include;
- Doubts over the validity of the Will
- The deceased left dependants who may have a claim for support but have been left out of the Will
- The estate includes arrangements such as assets held in trust?
- The estate is insolvent, or are there doubts about the solvency of the estate.
- The estate includes foreign property.
- The deceased domiciled outside the UK.
- There are beneficiaries that are difficult to identify or locate.