What is probate and how does it work?

What is Probate?

Probate is the legal right to deal with someone’s estate – their money, property and possessions, when they die.

Only once you are in possession of a grant of probate, can you start making financial plans, and, if you wish, consider putting the property on the market.

Who can apply for probate?

If you have been named as executor in the deceased person’s will, or in a codicil to that will, you are eligible to apply for probate. If there is more than one person named as executor, you must agree between you who makes the application for probate. Up to 4 executors can be named on the application. Where only one executor is on the application, that executor will need to prove that they tried to contact all executors named in the will before they applied.

Where there is no will, you may apply for probate if you are ‘the most entitled person’, usually the closest living relative. This is normally the husband, wife or civil partner (even if you were separated), followed by any children of 18 or over, including legally adopted children, but not step-children. You cannot apply for a grant of probate if you’re the partner of the person who has died, but were not their husband, wife or civil partner when they died.

If you do not want to be an executor, you can give up your right to apply for probate or appoint someone else to apply for you.

The probate process

Obtaining probate can be a complex and time-consuming process.

First, you need to check whether probate is needed, as in some cases it is not required.

This will involve contacting the bank and mortgage company of the deceased person to establish whether you’ll need a grant of probate to get access to their assets.

In cases where the deceased person only had a savings account, you may not need a grant of probate.

If the deceased person owned shares in an asset, or had money in a joint account with others, it will automatically pass to the surviving owners unless they’ve agreed otherwise. If they owned land or property as ‘joint tenants’ with others – this, too, automatically passes to the surviving owners. In these cases, probate is not necessary.

Where probate is needed, you will need to estimate and report the estate’s value to find out if there is Inheritance Tax to pay: when you can apply for probate will depend on this.

Once the estate has been valued, you can apply for probate online or by post. You will need to send the original will, rather than a copy, with your probate application. It will remain with the probate registry as a public record. The deceased person should have told the executors where the will would be found when appointing them.

Challenging a probate application

From another perspective, in circumstances where there is a dispute about the existence of a will or who can apply for probate, it might be necessary to challenge a probate application made by someone else.

You can challenge a probate application made by someone else by ‘entering a caveat’ before probate is granted. This involves making an application to the court to explain why probate should not be granted. 

Complexities

Administering an estate can be a stressful and complicated process at what might be an emotional time.

Dealing with a deceased person’s estate usually involves considerably more than simply filling in a few forms, even with the simplest estates containing only English bank and building society accounts, and a straightforward will.

Matters which can cause problems for executors in even apparently straightforward estates include situations where a beneficiary has died and the will does not specifically state what happens to the gift; situations where the beneficiary is bankrupt, or a case where the deceased’s investments include non-UK investment bonds; or situations where claims are made against the estate.

Where there is a property, or shares, which need to be sold, there may, (if the property or shares have increased in value since the date of death), be potential capital gains tax liability for the estate.

Many professionally drawn wills contain trusts, including discretionary trusts. Executors should always seek advice to ensure that the trusts in question are properly set up, and that the trustees know their responsibilities and duties during the life of the trust.

In all these examples, it is important that executors take legal advice before arranging a sale.

If you need help to deal with probate, one of our solicitors will be happy to help you. Contact the team at Samuels.

Article credit: Lalla Merlin