What is probate?
Probate is the process of dealing with the estate of someone who has passed away.
This can be done by anyone however; the process is very detailed and the Financial & Legal and complex. There are many factors that must be considered to ensure that the deceased person’s estate is dealt with in accordance with their instructions and without it causing stress to the person managing the assets.
Probate is the legal and financial process of dealing (administering) with a deceased person’s assets (the deceased assets are collectively termed the ‘estate’), which may include money, property, personal possessions, monies owed to estate, in addition to other assets.
More specifically, Probate is the legal process which must be completed to acquire the legal authority from the Probate Registry (Probate Court) to administer a deceased person’s estate.
The legal authority required to deal with estate is known as the Grant of Representation, which itself can take different forms.
Further, the factors which determine the form of the Grant of Representation include whether the deceased left a valid Will or not and who is applying for the Grant,
Grant of Probate:
when you need to apply for probate:
If the deceased left a valid Will and an executor(s) is named in the Will and they are wiling to act, the Grant of Probate sealed by the court will provide the executor(s) with the legal authority to deal with the estate after the death, as stipulated by the Will. Although the executor has the authority to deal with the deceased’s affairs, it is very common that financial institutions will make a mandatory request for the Grant of Probate from the court to be presented, before funds can be released etc. The financial institutions have the discretion to request a Grant of Probate which is often part of their company policy. Further, receiving a Grant of Probate will enable the executor to deal (sell, transfer or distribute) with the deceased’s estate. Applying for the Grant of Probate will also confirm the Will is Valid and is legally registered and that the executors are the only named person(s) to deal with the estate. In practice, it typically advisable for the Grant of Probate/ Grant of Representation to be obtained from the court before the estate is dealt with.
Grant of Letters of Administration (next of kin or administrator is appointed)
If the deceased person failed to leave a valid Will, then the next of kin (rules of intestacy apply if there is no valid Will) will be appointed to deal with the estate. Alternatively, under circumstances where family members are unable to agree to a person(s) who is best suited to deal with the estate, the court may be involved to appoint an administrator (person appointed by the court to administer the estate). The potential for disputes to arise pertaining to the person(s) who should be appointed to deal with the estate, is a reason why a valid Will should be made in the anticipation that certain family issues may arise post-death. The involvement of the court is typically a lengthy and expensive process.
Further to the above, an executor may not be willing to apply for the Grant of Representation and may not be willing to act, or may no longer be capable of acting as the executor (it is best to appoint a substitute executor when drafting your Will to cover you for unforeseen circumstances). Under these prescribed circumstances, one of the main beneficiaries named in the Will may apply for a Grant of Letters of Administration.
Circumstances when you do not need to apply for Probate.
Under certain circumstances, the Personal Representative is not required to apply for probate. This includes when the person’s estate is considered ‘small’ and typically won’t include property and the total value of the estate does not exceed £5000. Alternatively, the assets may had been all held jointly i.e. as beneficial joint tenants. Where the property/ bank account is held jointly, the assets will pass by ‘survivorship’, which means the surviving co-owner will automatically inherit the deceased’s share, thus negating the requirement to apply for probate.
The Probate process:
Facts of Probate process
An application for Probate involves lodging an application with the probate court for an incredibly significant legal document which is known as a Grant of Representation. The Grant of Representation can exist in different forms depending upon if there is a valid Will ( a Will which conforms to the correct legal formalities). If there is a valid Will the executor will need to apply for a Grant of Probate, via lodging the application and required documents with the Probate Registry (Probate Court). Alternatively, under prescribed circumstances where there is no Valid Will, the individual must apply and obtain the Grant of Letters of Administration. The Grant of Probate/ Grant of letters of Administration is required to administer the estate in certain prescribed forms e.g. sell a property, transfer assets, collect funds owed under a life insurance policy etc.
Grant of Representation
- Personal Representative, that is, the executor, administrator or are you the next of kin of a deceased person’s estate? We understand that an expert Solicitor can help reduce the stress during a difficult period of loss. Perhaps you are unsure of the Probate process and need to instruct a qualified professional to either step in and carry out the work on your behalf or perhaps you need to instruct an expert to help you with different aspects of the probate process. Whatever the nature of your requirements we can offer you a full range of probate services designed to meet your individual requirements and personal circumstances.
- Executors and Administrators hold the responsibility to administer the deceased’s estate in a prescribe form. Personal Representatives is the collective term used to describe such individuals. Further, it is essential to recognise the different types of Personal Representatives, as they are appointed differently.Executor: Executor is a person chosen to administer the estate by a deceased person. The executor is a person named in the Will and is a person believed to be suitable to carry out the deceased wishes.
- Administrator: An administrator is a person appointed by the court to deal with the estate. An administrator can be appointed by the court under different circumstances. The court will appoint an administrator if there is a Will but no executor was appointed, or if the executor is deceased or unwilling to act or is not capable of acting. Alternatively, an administrator may be appointed by the court if there was no valid Will (there was intestacy) when the deceased died.
- Next of kin: This is closest living biological relative. The next of kin is determined in a certain hierarchal order in accordance to the rules of intestacy. A person who has died without a valid Will, is known as a person who has died intestate. The intestacy rules will determine who benefits from the estate. Due to the Rules of Intestacy being highly complex, it can be a challenging task to identify the correct beneficiaries. Further, any person identified as the Personal Representative of the estate must be aware that any breach of their duty owed as a Personal Representative may result in them being held personally financially liable for any errors made when administering the estate. Subsequently, in the event that there is no valid Will, it may be even more appropriate to appoint a probate professional to reduce the risk of any error being made and to ensure the correct beneficiaries of the estate receive their inheritance.
- We can assist you in applying for a Grant of Representation (Grant of Probate/ Grant of Letters of Administration).
- Collect funds owed to the estate by lodging the required documentation with financial institutions.
- Calculate gross value of the estate for probate and inheritance tax purposes.
- Prepare estate accounts.
- Record any gifts made in the last 7 years before death.
- Provide post-death tax planning to reduce capital gains and inheritance tax liability.
- Pay any debts owed to creditors or taxed owed.
- Sell or transfer estate property accordingly.
- Distribute the net proceeds from the estate accordingly to the beneficiaries fo the estate\, as determined by the Will or Rules of Intestacy.
- Close bank accounts.