Guide to Probate

This is intended as a brief guide to the usual steps that have to be taken when somebody dies and an application has to be made for a grant of probate on your behalf. However, it is important to note that not every step described below will be relevant in every case. For help with your own probate or estate planning matters, please contact us.

What is probate?

A grant of probate is the document issued by the court which recognises that the person to whom it is issued, namely you, are entitled to deal with the estate of the deceased person. If the deceased has left a valid will, the grant will be issued to one or more people names as 'executors'.

When is it necessary to obtain a grant of probate?

A grant of probate will usually have to be obtained whenever the deceased person owned land, bank accounts or stocks and shares.

The only assets for which a grant is not needed are:

  • Personal possessions.
  • Assets held in joint names, which pass automatically to the survivor (eg a joint bank account).
  • Assets held on trust (eg the proceeds of any life policy written in trust) which will be dealt with according to the terms of the trust document irrespective of the terms of any will.

What do we need to get the grant of probate on your behalf?

To successfully apply for the grant of probate on your behalf we will need the following:

  • The Registrar's copy of the death certificate.
  • A signed copy of the deceased's last will (which we may already hold in our offices) naming you as executor of the will.

In addition, before probate is granted we will need to:

  • Establish the value of the estate - We will notify the necessary authorities of the death, eg bank, building society, DWP, insurance companies etc. We will ask for closing balances of any accounts, and where necessary seek valuations of assets. We will also verify the extent of any debts owed.
  • Calculate and pay inheritance tax (IHT) - IHT is payable at the rate of 40% on any part of the deceased's estate in excess of £325,000.

Any gifts made in the last 7 years of the deceased's life (whether in the form of cash or assets) will be added to the value of the estate for IHT purposes, so it is important that we have details of all such gifts. Various reliefs and exemptions are available which we will advise you on where relevant. If IHT is likely to be payable, we will prepare and submit a tax return, and pay the tax due from the estate's client account monies so that we can then apply for the grant of probate on your behalf. If no monies are available this means that it is may be necessary for you to apply for a short term bank loan to pay the tax bill until the grant can be obtained and the assets collected in, although tax due on certain assets (eg land, businesses) can be paid in instalments over 10 years.

Applying for the grant of probate.

Once any tax due has been paid, we will apply to the Probate Registry for a grant of probate (if there is a will). An affidavit will be prepared as part of the application giving details of the deceased, the names of all persons applying for the grant, and explaining how their entitlement to apply arises under the will.

The application will then be lodged at the Probate Registry together with a copy of the will and a cheque for the court fees. If the court is satisfied that everything is in order, the grant will then be issued.

What happens when the grant of probate is received?

The grant will be shown to any necessary authorities (e.g. banks) and monies due to the estate can be collected in. The grant will also need to be obtained before certain assets can be sold, eg land or shares.

Once money is available, it will be placed into our firm's client account and any legacies in the will and any debts owing by the deceased will be paid.

On your behalf we will also prepare tax returns for income tax and capital gains tax for the period of the estate, and pay any further tax due from monies held for the estate in the client account.

In addition we will place an advert in suitable newspapers inviting claims from any creditors of the deceased, to protect you as an executor from being personally liable to meet such claims after the estate has been distributed.

Once these steps have been taken, final estate accounts can be prepared for approval by the beneficiaries, and the remaining funds in the estate distributed.

How long does the whole grant of probate process take?

A simple estate on which no IHT is due can be wound up and distributed within 6 months. It is generally inadvisable to wind up the estate in less than 6 months, as the executors will be personally liable if they distribute the estate within that time and it turns out they have failed to take account of a valid claim against the estate.

An estate on which IHT is payable can take several months longer to wind up, and in the case of a very complicated estate could even take years.