Probate Question's & Answers
What is probate?
The term ‘Probate’ is the name that is given to the process of administering someone’s estate upon their passing. When someone dies owning significant assets, a formal ‘grant’ is required from the probate registry to enable their estate to be collected and divided between their beneficiaries.
The probate process
When a loved one leaves assets over £5,000, one of the types of grant is required before those assets can be obtained and distributed. Some assets, for instance, bank accounts, can be closed where the cash within them is around £5,000 (sometimes more, depending on the bank). However, administrators should consider that where a person dies intestate, the administrator obtains their authority from the actual grant. A grant is required to deal with other assets; this could be like shares in a company or house shares.
Do I need probate?
There are circumstances where a grant is not required. Where the estate of the deceased is less than £5,000 and only includes cash funds held in deposit accounts, you would not usually need to obtain a grant to obtain the money. However, where the estate consists of certain assets – like land or shares – you will always need to get a grant.
Who is required to have probate?
This is anyone who needs to sort out the affairs of the deceased and needs to access their bank accounts, investments and other assets to pay their debts, inheritance tax and distribute their estate. They cannot do this without a grant of probate or (where there is no Will) letters of administration. Those persons must be the executors of the Will. Where there is no Will, the next of kin are usually entitled to administer the estate, and there are statutory rules about who those people are. No one interested in the estate of someone who has died can receive their inheritance until such a grant has been obtained.
For more information on the probate process for estates where there is no valid Will, you can read more on our Intestacy page.
What is the Probate Process?
There are three main stages to obtaining probate or administration:
- Investigating the extent of the estate.
- Completing tax returns and applying to the court for the grant.
- Collecting the assets, paying the debts of the person who has died and distributing the remaining estate.
Whose responsibility is it?
The executors of the deceased’s Will are responsible for obtaining probate. In cases where the person dies without a Will, the next of kin will usually take on the responsibility.
The person who applies for probate is responsible for correctly collecting and adequately distributing the deceased’s estate after paying all taxes and other debts. You should note that where someone begins to administer an estate and chooses to stop, either because they wish someone else to or because they find out that they are not entitled, they may still attract some of the liabilities of an executor/administrator.
Why use a professional firm like Probate Legal Advice?
The probate process can be complex and time-consuming. Tax returns must be made to HMRC based on information that is collated from the holders of all the deceased’s assets and liabilities, including bank accounts, investments, pensions and all other assets.
Once probate has been obtained, the assets must be collected, and the liabilities of the estate must be paid before the estate is distributed by the terms of the Will or the statutory order for payment where there is no Will. As an executor or next of kin who applies for a grant, you are personally liable for any mistakes or incorrect distributions.
The process relies on specialist legal and tax knowledge, and several complications can arise. For example, issues with the validity of the Will can be dealt with quickly and efficiently by an experienced professional.
We are a professional firm of experienced Wills and probate lawyers who offer a personal, efficient service. You will have the peace of mind of knowing that your affairs are being dealt with in a sympathetic, efficient manner at a price that offers excellent value for money and is fixed at the outset.
Does an Executor Have Personal Liability?
Failure to carry out the legal duties and procedures can result in an executor being personally liable to the estate – for instance:
- Failing to safeguard assets, for example, neglecting to take necessary action to preserve the value of a property.
- Misappropriation of assets: an executor uses an asset of the estate for his use rather than for the benefit of the estate.
- Failing to submit tax returns correctly within the statutory timescales or with the correct information and supporting paperwork.
- Paying the wrong people or paying the right people but the wrong amount.
- Paying money to bankrupts rather than their trustee in bankruptcy
Contact our Probate Legal Advice
Probate Legal Advice offers efficient and complete service. We will take care of every detail, saving you stress and giving you time when you most need it.