What is Probate?

July 28, 2021

What is probate, when is it needed and what is involved?

Probate is the word normally used to describe the legal and financial processes involved in dealing with the property, money and possessions, known as assets, of a person who has died.


Before the next of kin or Executor named in the Will can claim, transfer, sell or distribute any of the deceased's assets they may have to apply for Probate.

When Probate has been granted through a Grant of Probate or Letters of Administration the next of kin or Executor can start to deal with the deceased’s assets in accordance with their Will.


When is probate needed?

Probate is usually needed in England or Wales when:

  • The person who died owned property or land


  • A bank or other financial institution asks for a grant of probate or grant of letters of administration (also known as grant of representation)

Do I need probate if there is a will?

The need for probate doesn't depend on whether there's a will, it depends on the financial position of the deceased. The process is very similar regardless of whether there's a will or not, but some of the terminology is different.


If there is a will and probate is needed then the executor needs apply for a grant of probate. If there is no will, then the administrator will need to apply for a grant of letters of administration.


Do I need probate if my husband/wife/civil partner dies?


It depends on how the assets were owned. Many couples own their home as joint tenants and have joint bank accounts, meaning probate wouldn't be required. But probate could be needed for any large assets owned in the deceased's sole name, or a property owned as tenants in common.


What is involved with obtaining a Grant of Probate?


  • The first step is to identify all the assets (property, land, bank accounts etc.) of the deceased and any liabilities (debts including loans, mortgages, utility bills etc.) this then enable you to value the estate.


  • Identify any entitlement to the estate under the terms of the Will or under Intestacy Laws if there was no Will.


  • Apply to the Probate Registry for the Grant of Representation, being a document confirming the legal authority to administer the Estate.


  • Submit an Inheritance Tax Return whether there is Tax due or not and where applicable pay Inheritance Tax to HMRC.

  • Once the Grant of Representation has been issued by the Probate Registry, liquidating (selling) the deceased’s assets, settling their liabilities, paying the final Estate administration expenses and accounting to HMRC for any further Inheritance Tax, any Income Tax or Capital Gains Tax due to or from the Estate can begin.


  • You will need to prepare the Estate accounts, documenting all payments into and out of the Estate and showing the balance left for distribution to the beneficiaries. These Estate accounts need to then be sent to Personal Representatives (such as the Executor in the Will) for approval.


  • Providing there are no challenges to the Estate or other complicating factors preventing distribution at this stage, the final stage involves transferring any assets and distributing the balance of the Estate in accordance with the terms of the deceased’s Will or Intestacy laws.


How can we help?


Our experienced Wills and Probate team are able to deal with all aspects of obtaining a Grant of Probate, dealing with the Tax, Legal, and administrative affairs. We will work with the executors to get the estate wound up and distributed to beneficiaries as efficiently as possible.
 
 

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