Probate solicitors

Probate is a legal process that takes place after someone dies. Before the assets in a person’s estate can be collected and distributed, all of the assets and liabilities in the estate have to first be identified. Tax returns must then be completed and, in the case of an estate liable for inheritance tax, some tax may be payable before a Grant of Probate can be applied for. A Grant of Probate is effectively a court order from the Probate Registry, allowing an estate’s executors or administrators to discharge liabilities and transfer ownership of the assets. The term Probate is used to describe both the Grant of Probate itself and the process involved in obtaining it.

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.

Probate typically takes 9-12 months to complete. If there is a property to sell, complex inheritance, capital gains or income tax matters to resolve, or other complications, it can sometimes take longer.

With the guidance of a solicitor, it can help to make sure Probate runs as smoothly as possible and minimise the risk of delays.

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.

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.

Most solicitors charge an hourly fee when working on a Probate case. Some solicitors may also charge a percentage based on the value of the estate. The hourly cost for a solicitor depends on the level of experience.

At Boyes Turner, we only charge an hourly rate for the work we do. 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.

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.

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.

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.

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 whether letting or selling the property is the best option.