Probate, or Confirmation (if in Scotland), is the process of administering a person’s estate on their death. An application to the Probate Registry for either a Grant of Probate or for Letters of Administration is usually required before this can take place. Which of these is required depends on whether or not the deceased left a valid Will:
- A Grant of Probate is required if there is a valid Will which appoints one or more executors. executors then apply to the Probate Registry for the Grant.
- A Grant of Letters of Administration is required where the person died ‘intestate’, which means they did not have a valid Will. When a person dies intestate then a close family member will usually apply to the Probate Registry to become an administrator of the estate.
After this stage, the processes involved for both executors and administrators (referred to as ‘personal representatives’) are similar.
What is involved in probate?
Put simply, estate administration includes all the activities relating to the valuation, collection and distribution of the deceased’s estate. This will include calculating tax liabilities and applying for tax reliefs where applicable; undertaking legal duties such as the creation of any trusts required by the will; and administrative duties including the compilation of estate accounts.
Many of these administrative duties need to be carried out even where no valid Will exists or where a Grant of Probate is not required. The precise steps involved will depend on the complexity of the estate and the complexity of the Will – what follows is only a brief outline of what might be required.
Whether the estate is taxable or non-taxable, the personal representatives need to submit the probate application form PA1, together with completed Inheritance Tax forms and supporting documents including an official copy of the death certificate, the original Will and three additional copies of this document, any codicils and, finally, an application fee.
The tax forms required for taxable estates are more complex. Completing these will require the executor or administrator to obtain exact values for all of the deceased’s assets, since Inheritance Tax calculations take the value of all assets as they were at the date of death.
At this point – and once any Inheritance Tax liabilities are paid – personal representatives can contact the Probate Registry and request that a Grant of Probate be issued. Personal representatives must swear an oath before this is issued; in practice this is generally undertaken at the offices of a local solicitor.
Once the Grant is obtained, the personal representatives can proceed to gather in all of the deceased’s assets, for example property, personal possessions, bank and savings accounts, shares, insurance policies, and business assets. All debts will need to be determined and paid, i.e. utility bills, credit cards, loans, mortgages. It might also be the case that other tax liabilities, such as those relating to Income Tax or Capital Gains Tax, need settling; personal representatives have a duty to ascertain where this is applicable. Personal representatives are often required to sell assets such as property or shares at this stage.
Once assets have been collected and debts on the estate have been settled, personal representatives must locate all beneficiaries of the will or – if there is no will – those standing to inherit according to the rules of intestacy. Whatever remains in the estate can now be distributed to these beneficiaries by the personal representatives.
Often, those who have lost a loved one do not wish to deal with the complexities of probate. Many opt to lighten their burden by entrusting this work to an experienced professional.
When probate isn’t required
There are some occasions where a Grant of Probate may not be required, unless an organisation e.g. a bank or shares registrar requires it. Generally, this is where the deceased’s assets are worth less than £5,000 (£36,000 in Scotland) or where the assets are owned jointly with another person who is still living. Guidance should be sought where there is uncertainty as to what is required of personal representatives.