What is Probate?

Probate is the term loosely used for dealing with the assets and affairs of a person who has died (often referred to as the deceased or Testator), which can also be called Estate Administration.

You would usually need to show that you have the legal authority to handle probate and would apply to Court for a Grant of Representation, which would take the form of a Grant of Probate or Letters of Administration depending on whether the deceased left a Will.

Who can Apply for Probate?

This depends on whether the deceased had made a valid Will or not. If there is a Will there would usually be nominations for who the deceased wanted to carry out the task of administering their estate. Those nominated (known as Executors) have the choice to:

• take up the role themselves
• give someone else, usually a professional, permission to deal with the estate and only step in if needed
• renounce the role altogether.

If there is no Will, the person(s) most entitled to the deceased’s estate will be eligible to take out a Grant of Probate and deal with the deceased’s affairs.

What is the Process?

Probate can take a long time and must be completed in a certain order, but there are interim grants that you can apply for in special circumstances. For example, if someone died in the middle of a property transaction, you can apply for an interim grant that allows you to complete the property transaction. There are also special grants for situations of dispute and where very little is known about the deceased’s estate.

Where the value of the deceased’s estate is small, some institutions may allow you to deal with specific assets without a Grant of Representation.

It is common for the process to be handled by a solicitor overseen by the Executor(s) or Beneficiaries.

1. Valuations and Notifications

To deal with the estate of someone who has passed away, you must first establish what their assets were, together with the value of these assets.

Depending on the situation this can be quite a difficult task. For example, if you were not involved in the deceased’s finances, it may not be easy to find out what they owned or whether they had pensions and investments. If you do find yourself in this situation, a solicitor can assist with special search facilities.

It is very important to obtain the right valuations as this will impact the tax position of the estate. Special assets, such as businesses, artwork, antiques, foreign assets, heritage buildings, and commercial properties, may require specialist involvement to ensure the accuracy of the valuations.

In practice, this is usually the time you would inform institutions that the deceased has passed away.

2. Inheritance Tax

Inheritance Tax is a tax that is payable by the estate of a deceased person before their assets can be distributed. The amount paid will depend on an array of circumstances including the value and type of assets within the estate.

There may be opportunities to reduce the amount that is paid by applying for exemptions and reliefs. For example, if there is a gift to a spouse or a charity within a Will, there is usually no inheritance tax to pay on those gifts. Agricultural assets, business assets and heritage assets may also qualify for tax relief.

If the deceased had foreign connections, it will be important for you to confirm their domicile as this can also impact the amount of tax that is paid. Domicile is the country that is a person’s lawful residence and usually reflects the country they treat as their permanent home. However, it may not be the country they spend most time in so if there is any doubt you should take legal advice.

Inheritance Tax will also depend on the deceased’s financial position during their lifetime. More specifically, if gifts have been made, consideration of when these were made and to whom will be important in calculating the tax liability.

Inheritance tax can be complex, so it is advisable to seek specialist legal advice to ensure that the correct amount is paid.

Any tax due should be paid within 6 months of the deceased’s death to ensure that penalties and interest do not accrue. You should note that tax is payable by the deceased’s estate rather than the executors or administrators personally. This is not always a simple process so there are circumstances in which the payment can be delayed or staggered, but either way, the HMRC will need to give their approval before you can apply for Probate. In some circumstances, it may also be possible to take out an Inheritance Tax loan to enable you to move forward with probate.

3. Apply for Probate

It is only after Inheritance Tax has been dealt with that you can apply to the Court for the Grant of Representation (Grant of Probate or Letters of Administration), which you will need to finalise the deceased’s affairs.

There have been many changes in the way in which probate applications are sent to the Court recently, which has had an impact on the timeframes for when an application is approved. It is always worth speaking to a professional to ensure that the correct processes are being adopted.

Once your application for a grant is approved, you will receive a Court sealed version. Many institutions will require an original document, so it is advisable to ask the Court to send you multiple copies so that you can carry out many tasks at the same time.

4. Finalise Legal Affairs

The Grant will give you the authority to manage and deal with all the assets and affairs of the deceased. This could be closing bank accounts, paying their debts, transferring assets into beneficiaries’ names, taking over the management of business ventures or even managing Trusts created in the Will or in law – for example if there are beneficiaries who are minors.

This part of the process it very important; as a personal representative you will need to collect in all the assets of the estates and then distribute them to the right people in the correct manner. If errors are made, you could find yourself personally liable for the losses so it is important to keep an accurate record for yourself and the beneficiaries.

How Can a Solicitor help?

Undertaking this responsibility may be the last thing you want to do if you are grieving and coming to terms with the loss of a loved one, especially if there is a dispute between beneficiaries. We can assist you from the beginning to the end of the process, or with specific parts, lightening the burden of the paperwork and acting pro-actively to resolve issues so there are no unnecessary delays.

We have years of experience in assisting clients with complex and sensitive matters, so you can be assured we will always act with professionalism and discretion.

If you would like to instruct a solicitor to assist with probate, you can contact Sangeeta Rabadia directly by email or phoning +44 (0)20 7993 2936.