Do I need a Solicitor for probate?

Following a bereavement, many tasks need to be completed, making an already difficult time even more stressful.

The Executor (if there is a Will) or Administrator (if there is no Will) is responsible for administrating the deceased’s estate as per the wishes in their Will. They should consider:

  • Whether probate is needed
  • What’s involved in the probate process
  • Whether a probate Solicitor is required

This blog aims to answer these queries and alleviate confusion around the probate application process.

What is probate?

Probate means to ‘prove’ the last Will and Testament as a valid public document. However, it could be required when someone passes away.

Probate is generally referred to as the ‘Grant of Probate’ in England & Wales or ‘Confirmation’ if in Scotland. 

Executors named in a Will can apply for probate by obtaining the “Grant of Probate” from the Probate Registry. The Executors have the authority to act in the administration of the estate of the deceased. 

To obtain the Grant of Probate, there is a fixed government fee of £273 for all applications if the estate’s value is £5,000 or over. No fee is payable if the estate is £5,000 or less.

Probate is commonly confused with estate administration. However, probate is just one part of the wider estate administration process. This involves carrying out all of the deceased’s legal and tax affairs. 

This can include dealing with their assets (including property, shares, bank accounts and personal possessions), paying debts, paying Inheritance Tax (if applicable) and Income Tax, and transferring an inheritance to the estate’s beneficiaries. 

You can read more about the difference between probate and estate administration by clicking here.

Do I need probate?

Probate is required by law when your loved one leaves a valid Will and owns a property in their sole name, including houses, buildings, or land). However, probate is not required if the assets were held jointly because they will automatically pass to the surviving spouse or a civil partner. 

It is also required if a financial institution (such as a bank) requires a Grant of Probate to release funds. The thresholds for requiring probate does vary between institutions and are subject to change.

To summarise, not every estate will need probate to proceed, but every estate does require estate administration. 

We offer specialist estate solutions that cover everything from obtaining the Grant of Probate only to a complete estate administration for a fixed fee. 

Will I need probate if I have a Lasting Power of Attorney?

Probate may still be required regardless of whether a Lasting Power of Attorney (LPA) was granted during the deceased’s lifetime. In addition, an LPA grants someone the ability to manage an individual’s affairs and make decisions on their behalf while alive. 

A Grant of Probate gives the Executor authority to act on behalf of their estate upon death. Whilst the LPA may well have been held by the Executor of an estate, this must be applied separately if probate is required.

What if the deceased didn’t leave a Will?

If there is no Will, a close relative of the deceased can apply to deal with the estate at the Probate Registry. 

The legal document is referred to as Letters of Administration. Still, it gives the individual the same authority as a Grant of Probate and permits them to deal with the deceased’s estate. 

In these cases, the individual is known as the ‘Administrator’ of the estate.

A professional can be instructed if there are no family or friends to administer the estate. Once a Personal Representative (the collective term used to refer to Executors and Administrators) has been appointed, the estate must then be administered under the rules of intestacy. 

As the Personal Representative is personally liable for the correct estate distribution, it’s important to ensure that the rightful beneficiaries inherit. Learn more about what happens if someone dies without a Will here.

What’s involved in obtaining the Grant of Probate?

Completing the probate application

The probate application includes completing a PA1P (if there is a Will) or a PA1A (if there is no Will) if in England or Wales. An Inheritance Tax (IHT) form may also need to be submitted to HMRC. 

IHT is payable on estates over £325,000 that are not being passed to a spouse, civil partner, charity, or community amateur sports club. Reporting may still be required if the estate is below this threshold. IHT is also not payable on excepted estates.

How to apply to the Probate Registry

The next step involves sending all the details to the Probate Registry. You can also apply for probate online if you have the original Will and death certificate and have already reported the estate’s value. 

If applying online, you must send your documents by post after applying.

What documents will I need for probate?

To apply for probate, you need:

  • The original Will and codicils (if applicable). Codicils are minor amendments to a Will
  • The death certificate, or interim death certificate from the coroner
  • The correct IHT form (if applicable)

You will be asked to complete and sign a mandatory statement of truth during your online or postal application. This is an undertaking that you have been truthful in your application for the Grant of Probate. 

Failure to complete a statement of truth or errors within the declaration could lead to delays, as the application may be rejected.

How long does it take to get probate?

In the best-case scenario, applications usually take up to 8 weeks once submitted. However, it can take longer if application errors or the Probate Registry requires additional information. 

Additionally, due to Coronavirus, there have been ongoing delays to the process due to a backlog of applications at the Probate Registry. However, applying online usually takes less time than applying by post.

Do I need a Solicitor to apply for probate?

We recommend that you seek professional legal advice, but this does not need to be from a Solicitor. However, many Solicitors only deal with a small number of estates each year and therefore do not possess specialist knowledge of this area of the law.

You can also decide to deal with the estate yourself. However, it is a time-consuming and labour-intensive process that involves complicated legal work, tax calculations, and extensive paperwork. 

Executors and Administrators are also legally responsible for administering the estate and will be personally liable for any mistakes or oversights.

Another route is appointing a professional to administer the estate on your behalf. When choosing to do so, we recommend looking for a transparent fixed fee based on the amount of work involved rather than a fee based on a percentage of the estate value.

We are a probate and estate administration specialist company. We provide probate and estate administration services to people across the UK, taking on the legal and financial responsibility when instructed to administer the estate in full. 

We will take care of all the complicated matters after death so that you can have peace of mind that everything’s under control and progressing efficiently.