What is Probate?

What is Probate?Probate is the legal process of proving that a person’s assets pass to the right people after they die, this is often referred to as ‘Proving the Will’. It is also the process that proves that the correct person or people are allowed to administer the estate.

Probate with a Will

If the deceased person left a Will then usually Executors will have been appointed. It is their responsibility to deal with the administration of the estate and ensure that the correct beneficiaries inherit, organise the funeral and settle any tax or other liabilities against the estate. When a person dies their assets are frozen, so the Executors will not be able to access them to distribute.

The Executors are required to apply for a Grant of Probate (aka Grant of Representation) through the Probate Registry. Once they have the Grant they are authorised to access the assets of the estate and distribute to the beneficiaries.
The Executors can apply themselves or use a professional to apply on their behalf. Fitzgibbons and Company Ltd are happy to offer their services or discuss any specific requirements you may have.

In order to obtain the Grant of Probate the Executors are required to assess the deceased person’s assets and liabilities and then complete a tax return. The tax return required depends on the size of the deceased person estate. If the estate is valued over the Nil Rate Band for Inheritance Tax (£325,000) then the tax will have to be paid before the assets can be accessed. The deadline for paying the Tax is usually 6 months from the end of the month when the deceased person died, after that interest starts to build up. Inheritance Tax is 40% of the value of the estate above the Nil Rate Band.

Once the tax has been paid the next step is to ‘Swear the Oath’. If you are not using a solicitor this process usually takes place at your local probate registry, where you will be asked to swear (or promise) that the information provided is true. If the probate registrar is happy with the information supplied he will then issue you with the Grant of Probate.

The Executors have a duty to administer the estate properly and they can be held personally liable if the estate is distributed before all claims have been received. Potential claims under family provision legislation must be made by the claimant within 6 months from the date of the Grant of Probate, other creditors could also make a claim. If the estate has already been distributed the executors themselves may find they personally have to pay any claims made.

Probate without a Will

In cases when a person dies without a Will or if a valid Will cannot be found then the law sets out who will inherit (You can read more about this in an earlier blog post). Without a valid Will in place no executor will have been appointed so an application will have to be made for Letters of Administration.

NB – Only the next of kin can apply for letters of administration, this does not include the unmarried partner of the deceased.

Once it has been established who can deal with the administration of the estate then the same process can be followed as the executor of a Will. The personal representatives are then required to distribute the estate in accordance with the rules of intestacy.

If the estate is small and does not include land, property or shares; or if all the assets are owned jointly then Probate may not be required.

 

If you have any questions regarding our Probate service, please do not hesitate to contact us on 0808 100 2467 or by emailing enquiries@thewillwritingservice.co.uk.

Alternatively please complete the contact form on the right for someone to get in contact with you.