Probate is granted to executors allowing them to deal with an estate.
You’ve no doubt heard the term ‘probate’. But, what is probate? Where does the phrase probate come from? And, if you need probate, what is the process for executors to obtain probate?!
Here, we cover all of your questions around what probate is, how you get it, and whether you need it in the first place.
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 to allow them to administer the estate. It’s full name is a ‘Grant of Probate’. It is the only recognized document that allows executors to deal with the estate of the deceased – eg to close bank accounts, sell the house, and so on.
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?
There are certain assets that either don’t pass under the Will, or may be released without a Grant (at the discretion of the asset holders).
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.
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.
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.
How do I get a Grant of Probate?
The Executors will need to submit the relevant Inheritance Tax (IHT) paperwork and pay IHT (if any) to HMRC. 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.
Probate fees vary from time to time and can be found at the necessary Govt website.
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.
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. Fees are payable to the Probate Registry whether you use a solicitor to help you as executor or not.