Probate

Probate is a legal process that takes place after someone dies. It includes identifying and valuing the assets and liabilities of the deceased, collecting in those assets, paying any debts and taxes due and paying out the estate funds to the beneficiaries. It also includes proving via a court process that the deceased’s will (where one exists) is valid, thereby confirming the authority of the executors appointed in the will.

In the event of an intestacy, where there is no valid will at the time of death, the court process will confirm who has the correct status to deal with the estate and they will be appointed administrators.

The term probate is used to describe both the grant of probate itself and the process involved in obtaining it.

Grant of representation is the correct formal term to cover both a grant of probate (where there is a will) and a grant of letters of administration (where there is no will or the will is defective or does not include the appointment of executors). However, the term probate is commonly used as a ‘catch-all’ term even where there is no will.

The probate process includes proving that the deceased’s will is valid (where there is one), identifying and valuing the assets and liabilities of the deceased, collecting in the assets, paying any debts and taxes due and paying out the estate funds to the beneficiaries. There is a court process involved in obtaining the grant of representation, which gives the executors / administrators the legal authority to carry out these functions.

It is possible that probate may not be needed when a person dies, depending on the value of their assets and how they are held. For example, if all of the assets are held jointly, these will usually pass straight across to the surviving co-owner and so probate would not be necessary. There are, however, different ways in which joint property can be held and care needs to be taken with this. Some life insurance policies will also pay out without probate and some banks and building societies will too, depending on the level of funds held, but each financial institution has their own threshold for this. There is therefore no set figure which applies. Most organisations will also release sufficient funds before probate to cover funeral expenses and the payment of inheritance tax.

The executors appointed in the will are responsible for handling probate. If there is no will, the person who is entitled will be called an administrator and the rules of intestacy will dictate who can apply for this role. Please see our separate chart for the rules of intestacy, which apply where there is no will or the will is defective.

It is possible to avoid probate – for example, by adding a joint owner to a bank account or to your property deeds. However, there are a number of risks attached to this – for example, relations may subsequently deteriorate with the person who is added to the account / deeds, or that person may subsequently encounter financial difficulties, go through a divorce or die before you and that could leave your assets exposed. Professional advice should always be taken before action. It is also possible to set up trusts to avoid probate but again, specialist advice is strongly recommended.

No, it is not compulsory to instruct a solicitor to help you with probate, although you may find that it eases the burden at what can be a stressful and emotional time. It can be a lengthy and time-consuming process and the decision to seek professional help will depend on how much time you have to dedicate to this yourself and how comfortable you feel dealing with the process and paperwork involved. Where the estate is more complex (for example there is inheritance tax to pay and / or foreign assets), it is more likely that a solicitor will need to be involved. In the case of less complex estates, we do offer a grant only service where we make the application for the grant of probate, including the preparation of the inheritance tax account, and the executors themselves deal with all other matters relating to the estate, such as contacting the financial organisations and collecting in the assets.

At Boyes Turner, we only charge for the work we do and there are no additional fees based on the value of the estate. We are completely transparent and provide up-front cost estimates wherever possible. We will do as much or as little work as you instruct us to do so that you are fully in control of the charges incurred. Generally speaking, a higher value estate will incur higher charges as there is often more work to do but that may not necessarily be the case – some high value estates may not be particularly complex whereas sometimes relatively small estates can be very complex (for example due to the asset structure or family disagreements). That is why the ‘value element’ charged by some firms does not always produce a fair result.

Assets go to probate to enable them to be accessed and then ultimately the funds passed to the beneficiaries.

Broadly speaking, the assets in the sole name of the deceased will need to go through probate but there are exceptions to this (see ‘Is probate necessary?’ above). Where a property is held jointly, probate may still be required, depending upon the way in which the joint ownership is structured.

There are a number of variables here and this will depend in part on the assets involved. The first step is to contact all of the financial organisations where the deceased held assets and it can take some time for responses to be received. If there is inheritance tax to pay, this (or a proportion of it) must be paid before the application for probate can be made. Once the application is submitted, the time it takes for the Probate Registry to issue the grant will depend on the number of applications it is receiving at that time. Once we have details of the estate assets, we will be able to give you an indication of the likely timescale.

Once probate has been granted, this gives those named on the probate document the legal authority to close down the accounts held by the deceased, sell their shares, sell any property and make any distributions to the beneficiaries. The grant of probate document formally confirms the executors’ authority to third parties, including any financial institutions and the Land Registry.

A full and detailed search of the deceased’s house should be carried out at an early stage in order to try to identify all assets (and liabilities) of the estate. It is also possible to carry out online searches to locate missing or unknown assets, such as an unclaimed assets register search. From time to time, additional assets are found at a later stage as even close family members can keep their financial affairs very private. Where this is the case, it is necessary to collect in those assets and, where appropriate, report the additional assets to HMRC. Any additional inheritance tax due will need to be paid, together with interest, and the beneficiaries will need to be accounted to if the estate has already been distributed.

As referred to above, there are cases where it is not necessary to make an application for a grant of probate. Where probate is needed but an application is not made, the beneficiaries will not be able to receive their inheritance as nobody will have the legal authority to access, sell or transfer the assets. Action can be taken to ‘pass over’ and replace an executor who appears unwilling to apply for probate, where necessary.

This depends on the rules of each financial institution where funds are held. It will also depend on whether the deceased held their assets in joint names with others and whether the assets are held in trust, as referred to above.

This depends on the circumstances – in particular whether there is a surviving spouse or partner who is a joint owner of the property. If there is not, it is highly likely that a grant of probate will be required for a property to be inherited or disposed of.

Yes, a house can be put on the market before probate has been granted although contracts are not usually exchanged until the grant of probate has come through. We would recommend that clients inform the estate agent that it is a probate sale at an early stage, so that they can manage potential buyers’ expectations concerning the time frame for exchange and completion.

Yes, it is possible to live in a house going through probate, although there should be a dialogue with the executors regarding payment of any rent. It can be helpful to have someone in the property taking care of it but problems can ensue if they subsequently refuse to leave so care should be taken here.

Yes, a property can be rented out whilst waiting for probate. Executors must act in the best interests of the estate as a whole and will need to balance the responsibility of being a landlord with the rental income received. It is possible that a tenant might fail to pay the rent or damage the property and so executors should seek specialist advice as to whether letting or selling the property is the best option.