Probate

Probate is the process of applying for the right to administer the estate (eg property, assets and money etc) of a person who has passed away and the procedure that follows from this. The person who administers the estate is the 'personal representative' or the 'executor' of the estate. Who this is depends on whether the deceased left a will or died intestate.

Probate is not necessary in certain circumstances, for example, if the deceased’s estate is owned jointly with a spouse. It is generally considered that if the deceased person’s assets are worth less than £15,000, probate won’t be needed. But this isn’t the case in every situation as each financial institution has its own limit that determines whether or not Probate is needed (ranging from £5000 to £75,000).

Executors and administrators have a vast number of responsibilities when managing the deceased’s estate. They’ll need to:

1. Establish who the personal representative is (either named in the will or established by the priority order of administration).

2. Prepare a comprehensive list of all property, money and possessions, as well as debts, in the estate and determine its total value.

3. Apply for a grant of representation by submitting the legal documents and forms, including those in relation to inheritance tax, to the Probate Registry, and pay the relevant fees.

4. Attend the interview at the Probate Registry as requested.

5. Receive the grant of representation.

6. Open a bank account on behalf of the estate to be used for the probate application form fees etc.

7. Place newspaper advertisements for creditors to see.

8. Send a copy of the grant of representation to all asset holders and request the release of the deceased’s assets.

9. Pay any debts (eg household bills, mortgages, loans and overdrafts) owed by the deceased to creditors.

10. Be sure to work out and pay the inheritance tax due (if any) by the end of the sixth month after the deceased’s death.

11. Prepare the estate accounts and distribute the estate to all beneficiaries in accordance with the will or intestacy rules.

The legal document issued by the Probate Registry granting the right to administer the estate is a 'grant of representation' and will either be a 'grant of probate', where a will was left, or a 'grant of letters of administration', where no will was left or where it is found to be invalid. If no executor has been named in a will or the executor gives up his/her rights to probate, the document is named a 'grant of letters of administration with will annexed'.

If no will has been left, an 'administrator' who will be the deceased's next-of-kin, decided by a set order of priority (starting with the married/civil partner of the deceased, followed by their child, their grandchild, their parent and so on) will be appointed by the court to deal with the estate. The deceased's next-of-kin can apply for a grant of letters of administration to be issued by the court which will give them authority to administer the estate.

• Apply for a grant of probate or grant of letters of administration by filling in a 'Probate application form'. Complete Form PA1P if the deceased left a will. Complete Form PA1A if the deceased did not leave a will.

• Complete a tax form, whether or not any inheritance tax (IHT) is actually owed, to send with your application. If IHT is due, complete Form IHT400 with help from the corresponding guide. If no IHT is owed, you can complete the Inheritance Tax estate information online or via hard copy Form IHT205 (using the corresponding guidance notes).

• Order sufficient sealed copies of the grant of representation as banks, building societies and other organisations will need to see these before they release the deceased’s assets and monies to you.

• Enclose certain supporting documentation with your application form, for example, an official copy of the death certificate issued by the Registrar of Births, Deaths and Marriages or a coroner’s certificate, the original will and codicils (where applicable).

• Application fees and costs for the number of officially sealed grants required are payable to the HM Courts & Tribunals Service (HMCTS). For more information on the relevant fees see Form PA3.

• Send the documents together with a cheque/postal order for the relevant fees, which are payable to HMCTS, to the Probate Registry of your choice.

Ask a lawyer if you require help with these forms or if you wish for a solicitor to apply for a grant of representation on your behalf.

HMCTS will contact you with regard to your application approximately a couple of weeks after its receipt. They will invite you to a short interview where you will be asked to swear an oath. Following this, the original grant of representation together with the requested copies will be sent to you.

Once the grant of representation is issued to you, your legal right and responsibilities in relation to the handling of the deceased’s estate begin.

First, you must provide each relevant organisation holding the deceased’s assets, eg banks, building societies and pension funds, with a sealed copy of the grant to enable these assets to be released. You should open a bank account on behalf of the estate to transfer the deceased’s assets into.

Second, pay any outstanding debts owed by the deceased, eg bills, overdrafts, tax owed and solicitors’ fees, following a set order of priority. As the personal representative of the estate, you are legally liable to pay these off. It’s advisable to publish an advertisement in the London Gazette and local paper for protection against any claims by unknown creditors.

Third, distribute the estate in accordance with the deceased’s will or under the intestacy rules. Pay IHT, if applicable, within six months of the deceased’s death. Prepare the estate accounts as beneficiaries are entitled to request these.