What is Probate?

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Probate is granted to executors allowing them to deal with an estate.

Probate is the term often used to describe the process of administering the estate of a deceased person.  In fact, Probate is the Court Order made in favour of the executors of a Will giving them the formal authority to deal with the estate.  Probate is required to (for example) close bank accounts, sell shares, sell a house, and so on.

What is Probate?

Most people think that probate is the process of administering an estate. In fact, it is the name of the document (the court order) that is given to executors of the will to allow them to administer the estate.  It’s full name is a ‘Grant of Probate’.

How Long does Probate take?

If referring to the process of administering an estate, you can generally expect things to take the executors at least a year after the date of the death to get everything sorted.  Sometime the estate can be finalised sooner than that, often it may take longer.

As to how long it takes to get the Grant of Probate, this too depends on the particular estate.  If there is no Inheritance Tax to pay, then the executors of the will should be able to apply for the Grant of Probate relatively soon after death – perhaps 8-12 weeks.  The Probate Registry then need to process the application.  As at Autumn 2023, the courts are quoting a minimum of 16 weeks to process applications.  In normal circumstances, the Grant of Probate was typically processed in a matter of a couple of weeks.

How do I get a Grant of Probate?

In its simplest terms, administering an estate requires the executors of the will to:-

  • Gather valuations – for all assets as at the date of death
  • Inheritance Tax (IHT) – pay the initial amounts oweing
  • Apply for Probate
  • Close or transfer assets
  • Pay cash legacies
  • Pay residuary estate
  • Inheritance Tax – pay any remaining balances
  • Income Tax – settle the deceased’s income and capital gains tax affairs (to date of death and separately for the probate period)
  • Provide estate accounts

Unless the estate is an excepted estate, the Executors will need to submit the relevant Inheritance Tax (IHT) paperwork and pay IHT (if any) to HMRC before the Grant of Probate can be issued. Once this is done, they have to complete a legal statement and send the original will to the probate registry, who will then issue the grant of probate.

The application process was historically done by paper/post.  It can all now be done online, with just the deceased’s original paper will needing to follow in the post once the online application has been made.

Probate fees vary from time to time and can be found on the necessary Govt website.

What Inheritance Tax (IHT) needs to be paid before Probate?

Executors must pay the IHT applicable to all cash assets, and one tenth of the value of the tax payable against property (dependent upon the timings of the probate application) before the Grant of Probate will be issued.  This can present a challenge as most banks will not release final account balances until the Grant of Probate is issued!

How do Executors fund IHT before Probate?

Whilst banks will not release final balances pre probate, they will invariably release payments to HMRC for IHT purposes.  They (the bank) may ask the (soon to be appointed) executors for some form of guarantee or indemnity.

What is included in the Grant of Probate?

The grant of probate contains details of the deceased, a copy of the will, the executors details, and values of the estate. It is a public document, and once issued, anyone can apply for a copy. Once probate has been granted, the will therefore also becomes a public document.

Do executors always need to get Probate?

Depending on what assets are in the estate, probate may not be needed. Examples of this include where all assets are held jointly with others (and so they pass automatically to the joint owner), and or where the value of the estate is low.

Depending on the size of the estate, some asset holders may release assets without a grant of probate, as long as they have a copy of the Will. This is because the executor’s legal authority derives from the will itself.

What if there is not a Will?

If there isn’t a will, the deceased is deemed to have died ‘intestate’ (ie without a will). The law then decides who gets what – rather than you having specified who gets your estate in your will. It also decides who is entitled to administer the estate.

When there is no will, the court order executors get is not called probate (although it amounts to the same thing)! Where there is an intestacy – the court order is called ‘Letters of Administration’. And actually, executors are technically called ‘administrators’ too (not executors)!

Administring an estate is often referred to as probate.

When is a Grant of Probate not needed?

A grant of probate will not be needed if all assets can be dealt with without any asset holder requesting the Grant of Probate.  Put another way, the assets decide whether probate is needed or not.

So for example, there are certain assets that either don’t pass under the Will (joint bank accounts, and property held as joint tenants), or may be released without a Grant (at the discretion of the asset holders eg small bank balances).

Do I need Probate for Joint Assets?

Where the deceased owned assets in joint names with another person, these will normally pass to the surviving joint owner automatically. This is a legal process called the right of survivorship. It applies to all joint assets including houses owned as joint tenants (as opposed to tenants in common).

Do I need probate where the estate value is low?

Where the estate value is low, asset holders (eg banks) may release funds without seeing probate. For example, some banks may release funds to the executor without a grant if the value is below £5,000. The executor will normally be asked to sign an indemnity assuming personal responsibility.

Do I need Probate for Pensions & life insurances written in trust?

Where a nomination form has been filed and the pension or life insurance is written in trust, the asset will not pass under the Will, and a grant of probate is not usually required to release any lump sum benefits. You will need to confirm this with the pension provider.  The person(s) with authority to release those funds will be the nominated trustees.

Do Personal items need Probate?

Technically, an Executor doesn’t need a grant of probate to distribute the deceased’s personal items since their authority to do so comes directly from the will.

However, if items are to be sold at auction, they may ask to see a grant of probate as proof that the personal representatives can instruct them and collect the sale proceeds.

Personal items will often have been dealt with in a letter of wishes rather than the will itself.  Want to know more about letter of wishes?

Can Executors pay Cash Legacies before Probate?

Cash legacies are fixed cash gifts, generally included as ‘token’ amounts, rather than dealing with the bulk of the value of the estate (the residuary estate – see below).

It would be very unusual for cash legacies to be paid ahead of the Grant of Probate being issued for a number of reasons, mainly that the deceased’s cash tends to be frozen until probate is issued.

Read more about cash legacies

Can Executors pay Residuary Estate before Probate?

The residuary estate is the bulk of the estate, and it will generally be dealt with as percentages – eg 50% to X and 50% to Y.  Unlike cash legacies (above) it is intended to deal with ‘everything else’ and so there is no need for the will to have mentioned particular assets.

Given that the estates assets are frozen until probate is issued, then no, executors can not/do not pay out a residuary estate ahead of probate.

> Read more about residuary estate

The residuary estate will often be paid in stages as the estate administration process progresses.  Executors may need to hold back a final balance as loose ends (like income tax) are finalised.

What is a Sealed Grant of Probate?

This is a photocopy of the grant of probate and these are the working documents that executors use to close bank accounts etc (they will rarely send the original document). The Probate Registry (the probate court in simple terms) provides these sealed copies. The original grant of probate includes a copy of the deceased’s will. The sealed or working copies of the grant of probate do not contain a copy of the will.

How much does Probate cost?

Please get in touch and speak with one of our specialist probate solicitors to get an accurate quote for our fees on helping you obtain a grant of probate, or dealing with the whole administration of the estate if you would prefer. Fees are payable to the Probate Registry whether you use a solicitor to help you as executor or not.  See the Govt site with current fee scales.

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