How to manage probate process

What is probate?

A Grant of Probate is an order of the Court, giving one or more people the legal authority to administer the estate of the deceased, in order to distribute it correctly to the beneficiaries

Probate involves a series of interdependent legal, tax and administrative activities that must be carried out in order for the estate to be administered correctly

It involves communication with many parties including the Court, HM Revenue and Customs, and all related financial institutions

Essentially it involves collecting all assets, settling all debts and tax liabilities and correctly distributing the remainder of the estate to the beneficiaries in accordance with the Will, or Rules of Intestacy

Care and attention must be taken to avoid mistakes being made at every stage in the process, as the Personal Representative is responsible and ultimately liable

Who can apply for the Grant of Probate?

The people who have the right to apply for a Grant of Probate are the Personal Representatives (PRs) of the estate

PRs are either the Executors named in the Will, or the next of kin following the Rules of Intestacy if there is no Will

There are different types of Grant depending on the circumstances and who is to deal with the estate.

The two main types of Grant of Representation are:

  1. The Grant of Probate, where there is a Will
  2. Letters of Administration, in situations where there is no Will

The people named in the Grant of Representation are legally responsible and ultimately liable for the administration of the estate of the deceased

The decision about who is named on the Grant of Representation is a very important one, because it carries this responsibility

When is probate required?

Probate is required in the following situations:

  • When a property is held in the sole name of the deceased, or as tenants in common
  • When the deceased held assets typically worth £5,000 or more with financial institutions
  • When the financial institutions holding assets in the sole name of the deceased require a Grant of Probate for the funds to be released
  • When the deceased benefited from a trust during their lifetime
  • Probate differs depending on whether or not the person died having made a will or not
  • If they have made a will, then the will is enforced by the executors
  • If they have not made a will and died intestate, the laws of intestacy apply

If there is a will, it is carried out by the nominated executors

The terms of any valid will must be adhered to. It is the role of the executor to ensure that the will is carried out as specified

An executor is a person, or company (such as a bank or firm of solicitors) named in a will to carry out or execute the wishes of the deceased and distribute the estate upon death

In England and Wales, a person must be at least 18 to be an executor.

The role of executor is a complex and often time consuming one

There may be up to a maximum of 4 executors and this is often the case where there may be disagreements over the estate.

If you have not been named, but wish to act as executor you can apply for an administrative grant to the Probate Registry.

If you are an executor, then this is for life. Claims can come up in the future and you should be able to deal with them

If at any point you feel you can no longer act in the role of executor,  then you must inform the Probate Registry in writing.

The executor has a list of tasks they are legally obliged to carry out

Probate involves a series of interdependent legal, tax and administrative activities that must be carried out in order for the estate to be administered correctly

It involves communication with many parties including the Court, HM Revenue and Customs, and all related financial institutions

You can ask estate agents to value the property and auction houses, or house clearance companies to value the contents

Care and attention must be taken to avoid mistakes being made at every stage in the process, as the Personal Representative is responsible and ultimately liable.

For further advice, you can contact your local CAB, or contact a local solicitor or financial advisor

If there is no will, the rules of intestacy apply

When a person dies without leaving a valid will, their property (the estate) must be shared out according to certain rules

These are called the rules of intestacy. A person who dies without leaving a will is called an intestate person

Only married or civil partners and some other close relatives can inherit under the rules of intestacy

If someone makes a will, but it is not legally valid, the rules of intestacy decide how the estate will be shared out

Married partners, or civil partners, inherit under the rules of intestacy only if they are actually married or in a civil partnership at the time of death

So if you are divorced or if your civil partnership has been legally ended, you can’t inherit under the rules of intestacy, but partners who separated informally can still inherit under the rules of intestacy

Beware companies charging high fees for probate

Some specialist  probate companies can charge very high prices for the service, far more than solicitors. These companies may be recommended by the Funeral providers or even be printed on documents with the death certificate, so beware

You should expect to pay around 2% of the value of the estate for probate as a general rule

 

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