Probate can be a confusing and emotional process, especially following the death of a loved one. Whether you’re an executor of a will or someone seeking to understand how the estate of a deceased person is handled, it’s essential to grasp the basics of probate in the UK. In this blog, we’ll address some of the most frequently asked questions about probate to help guide you through this often complex legal procedure.
1. What is probate?
Probate is the legal process of administering a deceased person’s estate. If someone dies with a will, probate involves proving the will is valid, paying any debts, and distributing the estate as outlined in the will. If there is no will (known as dying “intestate”), the probate process ensures that the estate is distributed according to UK intestacy laws.
2. Do I always need probate?
Not always. Whether you need probate depends on the size and complexity of the estate. If the deceased owned assets such as property, savings, or shares, you’ll usually need probate to access and distribute them. However, probate may not be required for smaller estates or when assets are jointly owned (e.g., joint bank accounts or property).
3. What happens if there is no will?
When someone dies without a will, the estate is distributed according to the rules of intestacy. In this case, probate is still necessary, but instead of an executor, a close relative (often a spouse, child, or parent) applies to be the “administrator” of the estate. They will then be responsible for distributing the estate according to the law, which dictates who inherits and how much.
4. How long does probate take?
The length of the probate process can vary widely. On average, it takes between 6 to 12 months. However, complex estates, issues with the will, or disputes among beneficiaries can extend the process. Obtaining the grant of probate usually takes 8 to 12 weeks, after which the executor can start administering the estate.
5. What is a ‘grant of probate’?
A grant of probate is a legal document issued by the court that confirms the executor’s authority to manage and distribute the deceased person’s estate. It gives the executor the legal right to collect assets, settle debts, and distribute the estate to the beneficiaries. For cases where there is no will, an equivalent document called a “grant of letters of administration” is issued to the estate administrator.
6. Who is responsible for applying for probate?
The person named as the executor in the will is responsible for applying for probate. If there is no will, a close relative applies for letters of administration. Multiple executors can be named in the will, but only one or two typically handle the application and the estate administration.
7. How much does probate cost?
The cost of probate can vary depending on the complexity of the estate. The current application fee in England and Wales is £273 for estates valued over £5,000 (as of 2024). Additional fees may arise if professional assistance is needed, such as hiring a solicitor to help with the process. Solicitor fees can range from several hundred to thousands of pounds depending on the size and complexity of the estate.
8. Do I have to pay inheritance tax (IHT)?
Inheritance tax (IHT) is payable on estates valued above the current threshold, known as the nil-rate band, which is £325,000 in the UK. If the estate is worth more, IHT is typically charged at 40% on the amount above the threshold. However, there are allowances and exemptions, such as the residence nil-rate band (up to £175,000), which can reduce the amount of IHT payable.
9. Can probate be challenged?
Yes, probate can be challenged if there is reason to believe that the will is invalid, unfair, or fraudulent. Common reasons for challenging probate include claims that the deceased was coerced into signing the will, lacked the mental capacity to make the will, or that the will does not reflect their true wishes. Disputes over probate can delay the process and may require legal intervention.
10. What if the executor is not doing their job properly?
If an executor fails to carry out their duties, beneficiaries have the right to take action. Executors are legally required to act in the best interests of the estate and beneficiaries, following the terms of the will. If they mismanage the estate, delay the process, or act improperly, beneficiaries can take legal steps to remove the executor and appoint a replacement.
11. How do I value the estate for probate?
Valuing the estate involves identifying and calculating the total worth of all assets the deceased owned. This includes property, bank accounts, investments, personal belongings, and any debts. You may need professional valuations for certain assets, like property or artwork. Accurate estate valuation is essential for determining inheritance tax liability and for distributing the estate correctly.
12. Can probate be done without a Solicitor?
Yes, probate can be done without a solicitor, especially for straightforward estates. However, many people prefer to hire a solicitor for assistance, particularly if the estate is complex, involves disputes, or has significant tax implications. Using a solicitor can provide peace of mind and ensure that the process is handled correctly, but it will add to the overall cost of probate.
Conclusion
Probate is a vital process that ensures a deceased person’s estate is handled according to their wishes or, if no will exists, according to the law. Understanding the key aspects of probate can help you navigate this sometimes daunting process. If you have any concerns or if the estate is particularly complex, seeking legal advice is always a good idea to avoid complications down the road. For more, please read our other blogs and follow us on LinkedIn. If you are in need of assistance with an estate, please contact us.
