A family member or close friend passing away is often a difficult time for most people. An experienced and sympathetic member of our team can help guide you through the probate process quickly and with minimal disruption.
Before the assets within a person’s estate can be gathered in and transferred according to the terms of their will, all of the assets and liabilities in the estate have to be identified, tax returns completed and it may be in the case of an estate liable for inheritance tax that some tax must be paid before a grant of probate can be applied for.
A grant of probate is effectively a court order from the probate registry which allows an estate’s executors or administrators to discharge liabilities and transfer ownership of the assets.
Our experienced team of specialist Wills, Probate, Tax & Trusts solicitors is based in Reading and can offer you a free one-hour initial meeting in person at our office or via video conferencing. Due to new online technologies we’ve adopted firm wide we can now serve clients in the Thames Valley corridor and beyond (Reading, Henley, London, Esher, Oxshott, Cobham, Weybridge, Kingston Upon Thames, Marlow, Beaconsfield,etc.)
The first initial meeting is to help you understand the process and provide you with general advice on the procedures that will need to be followed.
Greater assistance is available in more complex high-value estates if required. This regularly includes estates with a foreign element or where there is a partnership interest or a shareholding in private company or agricultural land.
We recently introduced the Grant-only fixed-fee service, applicable for estates exempt from inheritance tax.
The new scheme aims to provide a simple and cost-effective option for Personal Representatives who feel able to administer the estate but may require a legal eye when making the Grant application.
For more details on this service click here
What is 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 off any debts owing, paying any taxes due and ultimately paying out the estate funds to the beneficiaries.
It also includes proving via a court process that the deceased’s Will is valid, if there is one, thereby formally confirming the authority of the executors appointed in the Will or proving who has the correct status to deal with the estate in the event of an intestacy (where there is no valid Will).
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 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 contain the appointment of executors). However, the term Probate is commonly used even where there is no Will.
How does the Probate process work?
The Probate process includes proving that the deceased’s Will is valid, where there is one, identifying the assets and liabilities of the deceased and valuing them, collecting in those assets and paying off any liabilities, paying any taxes due and distributing 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.
Is Probate necessary?
It is possible that Probate will not be needed when a person dies. This will depend 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 co-owner by survivorship 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 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 funds before Probate for funeral expenses and the payment of inheritance tax.
Who is responsible for handling Probate?
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 a Will is defective.
Should I plan to avoid Probate?
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 so advice should be taken before doing this. For example, there may be a subsequent falling out with the person who is added to the account/deeds, or that person may subsequently encounter financial difficulties, may go through a divorce or may die before you and that could leave your assets exposed.
It is also possible to set up trusts to avoid Probate but again specialist advice is strongly recommended here.
Do you need a solicitor to sort out Probate?
No, it is not compulsory to instruct a solicitor to help you with Probate although you may find that it does ease the burden. It can be a lengthy and time consuming process and will depend on how much time you have to dedicate to this yourself and how comfortable you feel dealing with the 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.
However, we do offer a Grant only service where we make the application for the Grant, 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.
How much do solicitors charge for Probate?
At Boyes Turner we only charge for the work we do and we do not charge any additional fee based on the value of the estate. We will do as much or as little work as you instruct us to do so that you are 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.
Why does something go to Probate?
Assets go to Probate to enable them to be accessed and then ultimately the funds passed to the beneficiaries.
What things have to go through Probate?
Broadly speaking, the assets in the sole name of the deceased will need to go through Probate but there are exceptions to this - see number 3 above.
Where a property is held jointly, Probate may still be needed for this depending upon the way in which the joint ownership is structured.
How long does it take for Probate to be granted?
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 time frame involved.
What happens when Probate is granted?
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.
What happens if you find assets after Probate?
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 will be 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.
What happens if you do not do Probate?
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” an executor who appears unwilling to apply for Probate, where necessary.
How much money can you have before going to Probate?
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.
Does all property go through Probate?
As referred to above, some financial institutions may release funds without a Grant of Probate – this varies from one organisation to another and so it is necessary to check with each organisation.
Some financial institutions will release relatively large amounts of money without Probate but caution needs to be taken here as they may release it to the wrong person.
Can a house be marketed/sold before Probate is granted?
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 the estate agents be informed that it is Probate sale at an early stage so that they can manage any potential buyers’ expectations concerning the time frame for exchange and completion.
Can you live in a house going through Probate?
Yes, it is possible to live in a house going through Probate and a dialogue will need to be entered into 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.
Can you rent out a property while waiting for Probate?
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.
What shall I do next?
For advice on any of our probate services please get in touch with our expert Wills, Trusts and Probate team via email at [email protected] or call +44 (0)118 952 7227.