Probate Frequently Asked Questions .
1. What do all these complicated words mean?
Long and complicated words scare a lot of people. They are a lot less difficult that you might think, especially thanks to our Jargon Buster
2. What is probate?
The term "probate" refers to a "proving" of the existence of a valid Will , or determining and "proving" who one's legal beneficiaries are if there is no Will. Since the deceased can't take it with him, probate is the process used to determine who gets his or her assets.
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3. Why is probate necessary?
The primary function of probate is to encash the deceased's assets and distribute them to his or her beneficiaries.
Another function of probate is to provide for the collection of any taxes due by reason of the deceased's death, most commonly in the form of inheritance tax, but sometime also in the form of capital gains tax.
The probate process also provides a mechanism for payment of outstanding debts of the estate, before the distribution of the remainder to ones' rightful beneficiaries.
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4. What's involved in the process?
Typically the person named as the deceased's Personal Representative (or "Executor" or "Executrix") usually instructs a solicitor, who must gather in various information and valuations regarding the assets in the estate and prepares the necessary forms and documentation in order to apply to the probate registry for a Grant of probate or Grant of Letters of administration. After this has been obtained, the executor(s) or personal representative(s) must gather in the monies, pay any debts, (and legacies) then distribute the remainder as per the deceased's Will, or to the personal representatives of the deceased.
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5. Where is probate handled?
Probate is usually dealt with at the appropriate district probate registry (usually within the County where the deceased permanently resided at the time of his or her death).
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6. Who is personally responsible for handling the probate process?
The Personal Representative (usually referred to as the "executor" or "executrix" if there is a Will, or the "administrator" or "administratix" if there is no Will) is appointed as part of the probate proceeding and has the responsibility for managing the estate through the proceeding, subject to established probate rules and procedures.
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7. What are the main duties of a personal representative?
The main tasks of a Personal Representative are to:
(1) determine all of the assets in the estate;
(2) gather information and valuations of those assets;
(3) prepare the Inland Revenue accounts which details values of assets (as above)
(4) be sworn to the probate papers
(5) apply for the Grant of Probate / Letters of Administration
(6) receive payments due the estate, including interest, dividends, and other income (e.g., unpaid salary, other company benefits etc);
(7) pay debts (e.g. funeral bill / stone masons fee / any overpayments / creditors bills etc)
(8) discontinue utilities and pay any monies due
(9) pay inheritance tax when appropriate
(10) pay any legacies due to specified beneficiaries
(11) ascertain who is going to get what and how much under the Will
(12) investigate the validity of any claim there may be against the estate;
(13) pay the expenses of administrating the estate;
(14) distribute the remaining property in accordance with the instructions provided in the deceased's Will; (or to the next of kin where there is no Will)
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8. Can I handle probate without a solicitor?
While there is no requirement to use a solicitor, probate is a rather formalistic procedure. In dealing with it personally, there is scope for error which can cause everything to come to a grinding halt or expose everyone to liability.
The death of a family member or friend sometimes tends to bring out the very worst in some people. Experience shows that even in close families there is a tendency to get overly emotional about relatively trivial matters at the time of a loved one's death, and such minor matters, or any delays or inconveniences can be upsetting, pose issues of fairness, and create unfounded suspicion among family members. Thus it generally is a very good idea to "let a lawyer do it".
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9. Am I entitled to apply for a Grant of Probate or Letters of Administration?
There are rules, which govern who may be given a grant, and whether or not one is issued may depend on the circumstances in a case.
The following points are a brief guide for you:
If there is a will with named executors they are the first people entitled to a grant.
If there are no executors or the executors are unable or unwilling to apply, the next person entitled to a grant is any person named in the will to whom the deceased gives all his estate, or the remainder after the gifts have been paid.
If the deceased has not made a valid will, his or her next of kin should normally make application for a grant in the following order of priority:
1. Husband or Wife:
2. Sons or Daughters; *
3. Parents;
4. Brothers or Sisters; *
5. More distant relatives.
(* Or if any have died in the lifetime of the deceased then their sons or daughters may apply)
A grant cannot be issued to any person under the age of 18.
Illegitimate relatives other than sons and daughters may not be entitled to a grant.
When more than one person is entitled to a grant you may all obtain a grant together, however there is a maximum of four applicants allowed. In most cases only one person needs to obtain a grant, but there are circumstances when you and another person may need to obtain a grant together. If this is the case we will let you know as soon as possible after we have received your application.
If you are asked by someone else to apply on their behalf please send a note with your application giving the details of that person, and the reason why they are not applying.
If it is not possible to issue the grant to you we will explain the reasons.
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10. Does all the person's property have to go through probate?
No. Some processes are a "must" e.g. to sell a house which is in the deceased's name, probate must be obtained or in order to transfer the title of the property into the names of the beneficiaries.
Any property owned as a joint tenant passes to the surviving co-owners without going through probate.
Other types of benefits, such as a life insurance policy or annuity payable directly to a named beneficiary can bypass probate, as can a lump sum payment from say a pension policy which is for the benefit of a particular beneficiary.
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11. What about very small estates? Many companies / banks / building societies have a "small estates" procedure where the value is below a certain amount. The limits may be for accounts less than £5,000 or less than £15,000 - it really just depends on the particular company.
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12. How are creditors handled?
As part of the probate process, creditors are notified of the death. Often they are looking to have their debts discharged straight away however it is necessary first to obtain the Grant of Probate or Letters of Administration, after which time (once monies are received into the estate) any debts are discharged.
If there are insufficient funds to pay debts, there are certain rules of one kind or another establishing who gets paid first. Executors most likely will commence selling property to pay off approved creditor claims.
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13. What if someone tries to contest a Will?
Most of the challenges to invalidate Wills are by potential beneficiaries who got little or nothing. Questions on the validity of a Will must be filed in court within 6 months of receiving the Grant of Probate or Letters of Administration.
The typical objections are:
(1) the Will was not properly drawn, signed or witnessed, according to the formal requirements;
(2) the decedent lacked mental capacity at the time the Will was executed;
(3) there was fraud, force, or undue influence; or
(4) the Will was a forgery.
If the Will is held invalid, the probate court may invalidate all provisions or only the challenged portion. If the entire Will is held invalid, generally the proceeds are distributed under the laws of intestacy.
Needless to say, if there is even the possibility of a Will contest, an experienced probate lawyer is a must.
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14. How long does the process take?
The duration varies with the size and complexity of the estate. For small estates, the typical length of time is 3 - 6 months. For more complex estate, including where there is a property to market and sell, it takes in the region of 9 – 12 months (+ depending on how long it takes to sell the house), and where there is a large and complex estate where there may be difficulties arising (such as locating beneficiaries who would take under a Will or where a Will is contested, etc) it can take beyond 12 months.
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15. How much does it cost?
Charges are based on the size of the estate and how long the process takes. It is common practice to take a percentage of the estate, but we have fees based on the number of hours it takes to deal with it.
For smaller estate, charges are usually in the region of £500 - £1250. For larger estate charges are usually between £1250 - £2000, and for very large estates, more like £2000 - £4000.
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