What is Probate?
Probate is the legal process for dealing with the estate of someone who has died. It is the responsibility of the executors named in their will.
Executors can appoint a professional such as Thy Will Be Done (Spain) Ltd to carry out probate on their behalf, or they can opt for DIY probate, where they fill in the relevant forms and deal with the Probate Registry direct. This can be a very daunting porospect for many and is fraught with dangers for the Executors with HMRC and tax affairs and should not be undertaken lightly.
Estates under £50,000 may not require a grant of probate for the Executors to administer the estate, or if assets are held jointly. But if you do need to go through probate, this guide walks you through each stage of the process.
The probate process
Probate is essentially a two-stage process.
The first is to assess the size of the estate (work out how much has been left) and apply for a grant of probate.
The second is the administration of the estate- where assets are gathered and distributed in accordance with the Will. In Scotland, the process is called Confirmation.
Obtaining grant of probate
These are the things you need to do legally before you can gather in assets and distribute them.
Step one: Obtain death certificate of the deceased (issued when death is registered). Multiple copies are useful.
You'll need the original Will to establish yourself as Executor
Step two: Establish your authority as Executor. To do this you need the original Will. If joint Executors are named all will need to sign probate documents, even if they agree one will take the lead role.
If a professional Joint Executor is indicated (Solicitor, Bank or Will-Writer) they normally carry out probate and charge an Executor's fee. If you want to do probate yourself, you need to ask them to renounce their Executorship.
Step three: Make a preliminary valuation of the estate. For property you may need a professional valuation to satisfy HMRC.
Step four: Obtain form applying for Grant of Probate (PA 1, from local Probate Registry) and Inheritance tax form 205, if the estate is under £325,000 and Inheritance tax is not payable.
If the estate is greater than £325,000 and Inheritance tax may be payable, you need to complete the longer Inheritance tax form 400.
In Scotland, you apply for Confirmation by completing forms C1 and C5 (Scottish version of IHT 205) and send them to the Sheriff Court.
It's common to use a professional when applying for probate
Step five: Return completed forms, original will and death certificate to the Probate Registry and pay the appropriate fee which if the Tories are reelected in June 2017 is proposed to be:
Step six: Attend the Probate Registry for an interview and swear an Executor's oath.
Step seven: Pay any inheritance tax (IHT) that is due. If the bulk of assets are tied up in property you can pay IHT in instalments.
Step eight: Probate Registry sends you Grant of Probate. Request multiple (between five and 10) copies.
Administering the Estate
Administration is the final stage of probate. It can only be undertaken once a Grant of Probate or Letters of Administration (where there is no Will) have been obtained.
The process involves gathering in the assets of the estate and distributing these in line with the provisions of the Will. Once probate has been granted most institutions will release funds.
Key administration tasks
Advertise for creditors
Before you can start distributing someone's estate to the people named in their will, you need to make sure that all debts are paid off and anyone who has a claim on the estate is contacted.
This will mean you will have to advertise for creditors and claimants, usually in the London Gazette or local newspaper.
Transfer assets to Executor’s account
In your capacity as Executor, you should have already opened a bank account to receive the estate's assets.
Once you have obtained a Grant of Probate you should send a copy of the Grant to each bank or building society and request the transfer of assets.
Similarly, you need arrange the transfer of any shares or other investments.
Sell property if appropriate and bank proceeds
Any property may be sold or transferred to Beneficiaries according to the Will. If a property is to be sold, there will be additional fees payable for conveyancing. If we are handling probate for you our Solicitor will conduct the conveyancing also.
Prepare and finalise estate accounts
These show the assets gathered in, money paid out and the final sum to be distributed to Beneficiaries.
Distribute estate to Beneficiaries
This should be done in accordance with the provisions of the Will, after notifying the Beneficiaries and sending them a copy of the accounts. You should obtain a signed approval slip from each one.
You need to keep the estate accounts and supporting paperwork for at least 12 years after distribution as this is the limitation period for anyone who may have a claim on the estate.