WHAT IS PROBATE?: Below is a simplified explanation of the reasonably complex process of
probate, again in response to frequently asked questions:
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What Exactly is Probate?
The term 'probate' means the issuing of a legal document called a 'grant of representation' by the Family Division of the High Court in England and Wales authorising one or more people to sort out the past financial affairs and to deal with the estate (the money, property and possessions) left by someone that has died in England and Wales. In Scotland a similar process is called 'Confirmation'.
Who gives a Grant of Probate?
A division of the High Court called 'The probate registry' issues the 'grant of representation' to the person legally entitled to apply for it (see below).
These are THREE main of grant of representation:
1. PROBATE which is only issued the executor(s) named in the deceased will.
2. LETTERS OF ADMINISTRATION (WITH WILL ATTACHED) Issued when there is a will, but there is no executor named, or when the executors are unable to apply for any reason.
3. LETTERS OF ADMINISTRATION which is issued when the deceased had not made a will, or any will made proves to be invalid.
Why do I need a grant?
Companies and organisations holding money in the deceased's name need to know who to pay the money to and the grant is proof that the person named in it can collect the money.
The estate left when a person dies passes to the people named in his or her will. If there is no valid will it passes on to his or her legal next of kin. The distribution of the estate to the correct people is the responsibility of the person named on the grant.
Is a grant always necessary?
Sometimes a grant is not needed and you may wish to ask anyone holding the deceased's money whether they will release it without seeing a grant. If they agree they may attach conditions.
Among these are insurance companies and or building societies. You will also not usually need a grant when a house is held in joint names and it is clear that the house automatically becomes the property of the surviving owner.
If you are in doubt on this point you may need to ask a solicitor whether a grant is needed to change the ownership. You will need a grant to transfer or sell a property held only in the deceased's name.
However, if just one organisation requests a grant is obtained, then it is normal for all the other organisations to request sight of it before releasing funds to you.
Am I the right person entitled to a grant?
There are rules which govern who may be given a grant of Probate or Letters of Administration.
If there is a will with named executors they are the first people entitled to a grant of Probate. If there are no executors or the executors are unable or unwilling to apply, the next person entitled to a grant is any person named in the will to whom the deceased gives all his estate, or the remainder after the gifts have been paid.
If there is no will, or the will is found to be invalid, his or her legal next of kin should normally make application for a grant of Letters of Administration. As we are Probate Solicitors feel free to contact us if you would like to check whether you are the legal next of kin. |
HOW LONG SHOULD PROBATE TAKE / IS THERE A TIME LIMIT TO OBTAINING PROBATE?
Each Estate Administration varies in how long it takes to complete but as a very rough rule of thumb we would say between three and nine months is the norm. The actual issuing of the Grant from the court is only ten to 21 days from the date of the application, but it can take many months to get the estate in a position to make the application. There is a guideline in law though that states that no estate administration should take more than 12 months without a good and justifiable reason.
If Inheritance Tax is payable on the deceased's estate, if you do not complete all the Inheritance Tax forms, submit them to the tax office and pay all the tax due, then interest followed by penalties are payable. Therefore it is more important that a taxable estate is dealt with faster than a non-taxable estate.
If an administration is taking too long or the executor/administrator is delaying proceedings, then a solicitor should be instructed to make enquiries on your behalf, but ultimately it is court intervention that will force the completion of an unnecessarily slow Administration.
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IS IT NECESSARY TO PUBLISH STATUTORY NOTICES IN THE NEWSPAPER AND LONDON GAZETTE?
It is not a legal requirement to publish these notices but if they are not published then an executor who is not a beneficiary has a life long liability to creditors of the estate. By publishing the notices, this liability can be reduced to as low as 60 days.
After the notices have been published and the expiry period completed, any creditor not known by the Executor must look to the beneficiary(s) for settlement of any debt(s). Therefore, if any Executor is not the sole beneficiary under the Will then the notices would normally be placed.
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GRANT OF REPRESENTATION
A Grant of Representation is the legal document described below as either a Grant of Probate or a Grant of Letters of Administration. It effectively grants the person(s) named in the document the legal right to undertake the Estate Administration.
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IS A GRANT ALWAYS NEEDED (probate or letters of administration)?
If the deceased's estate (money, personal possessions etc) add up to less than £5,000 you need to ask the organisations that hold the asset(s) whether they require a Grant to release them to you.
A Grant is always required if the deceased owned real property (house, flat etc) and sometimes when the deceased owns a share of jointly owned real property.
If you find that you do need a Grant of Representation (Probate or Letters of Administration) but the estate is still small (say less than £50,000) and uncomplicated (no real property or shares etc) then click here to see our 'Grant Only Application Service', or use the 'contact us' for further assistance. You could also consider making a personal application to the court but most people have no experience or willingness to make such an application. To make a personal application you would need to contact the nearest probate court to you.
In all cases, if you do not wish to be involved in the practicalities of dealing with the asset holders and would like someone to take over the entire estate administration, then see 'our charges' for details of the cost involved.
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INCOME TAX
Income tax is a tax due on all taxable income received by the deceased during his/her lifetime up to the date of death. Sometimes a refund may be due to the Estate.
The Personal Representative is responsible and liable for collecting any tax due and must complete an Income Tax Account to the deceased's last tax office.
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Please CLICK HERE to download a guide and the application form to obtain someone's Grant, read a copy of a Will, or put in place a search in advance (Standing Search) so that you can know when a Grant application is made by the Executor or Administrator.
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