The word “probate” is usually used when discussing sorting out a deceased person’s affairs after their death. It applies to estates where there is a Will. If there is not valid Will then it is known as a Grant of Letters of Administration – essentially, the same thing. The process should make sure that the deceased persons assets and liabilities (bills, debts, tax) are dealt with correctly. Liabilities may be things like sorting out income tax, paying gas and electric bills and of course the funeral. Once probate has been granted by the Courts, the executors can then distribute the remaining assets go to the right people. Probate is also known as ‘administering the estate’ though technically that is actually sorting out the assets and liabilities and then paying the beneficiaries AFTER the Grant of Probate or Letters of Administration have been issued.
So what is probate?
In practice, different terms are used in the process, depending on whether or not the deceased person left a Will and where they lived. Our expertise is in England and Wales, which is what we discuss below.
What is the Estate of the deceased?
The estate” of a person who has died consists of the assets (things they owned including financial assets and their share of jointly owned assets) and debts (liabilities) that the deceased person had. The net estate for probate purposes will be the assets less the liabilities which may include any tax due including Inheritance Tax.
1) What is Probate? When the person who died has left a valid Last Will
The ‘executors’ will be named in the Will and they are the folk appointed to deal with the person’s affairs after their death. Their responsibility is to carry out the work of probate. They can delegate all or part of it to professionals whom we can recommend, and recover the fees from the deceased’s assets. The executors will apply for a ‘grant of probate’ from the probate registry. But before they can do that, they must discover the full extent of the assets and liabilities of the estate and pay any Inheritance Tax due.
The “grant of probate” is a legal document confirming that the executor has the proper legal authority to handle the deceased person’s assets (property, money, investments and possessions). The executors need the grant to prove that they have the right to get access to funds, sort out finances, and draw money to pay bills. Then, finally, to collect and share out the deceased person’s assets as set out in their Will.
2) What are Letters of Administration?
If no valid Last Will is found, which is surprisingly common, they are said to have died ‘intestate‘. This often happens when people have forgotten to sign Wills, lost or damaged them, or got married and not realised that this cancels any Will not made specifically with that marriage in mind.
The law then sets out:
- Who should be authorised to deal with the deceased’s estate through the probate process.
- Who should inherit from the deceased.
- And in what proportions their assets should be paid and out to whom.
In the case of intestacy (no valid Will), the relevant person or persons apply for probate in the form of a ‘grant of letters of administration“. Once the grant is issued, they then become the ‘administrators’ of the estate. Like the grant of probate, this is a legal document that confirms the administrator’s right to deal with the deceased person’s assets.
In some cases, for example, where the person who benefits is a child, the law states that more than one person must act as the administrator during probate.
What is the “personal representative”?
This is a general term that means executor or administrator – the person or persons who will carry out the work of probate and formally apply for the letters of administration. They have the same responsibilities as an executor, and the same liabilities if they do not carry out their duties with competence and integrity. he personal representative/ executor can be personally liable for mistakes, so it is always safer to check for later or lost Wills, unknown assets, and unknown liabilities. It can be more than embarrassing to assume there is no Will, fail to find a later Will or miss a large liability and end up personally liable!
What is a “grant of representation.”
This is a general term that includes grants of probate and grants of letters of administration. T
Is a grant of probate/representation always required?
When a grant is needed:It is almost always needed when the person who has died owned one or more of the following:
- Stocks or shares.
- Certain insurance policies and investments. More information on the “Do I need probate” page.
- Property (house, flat, bungalow) or land held in their own name or as ‘tenants in common.’ (Always – unless the property is a residential caravan, which is treated as a “chattel.”)
In most cases above, the bank or relevant institution will need to see the grant of probate before transferring control of the assets to the executors or administrators. However, if the amount is small, some organisations, such as insurance companies and building societies, may release modest amounts of money to the executors or administrators at their discretion on production of the death certificate and the Will, if there is one.
That said, my fathers’ estate was forced to go to probate to release just £1,500 from one investment house. They were the only people who required us to go through the full probate process. Had we been using a typical professional or (worse) a bank, it probably would not have been worth doing! That said, we know professionals where it would be worth doing for £1500, so call us if you are in that position!
When a grant of probate may not be needed.
A grant of representation may not be needed where:
- the person left less than £5,000. Or
- they owned everything jointly with someone else and everything passes automatically to the surviving joint owner. That does not necessarily mean that there is no Inheritance Tax to pay – most commonly, where the survivor is NOT legally married or a Civil Partner of the deceased in which case the spouse exemption does not apply..
Probate and Inheritance Tax.
The Grant will not be issued until some or all of any Inheritance Tax that is due on the estate has been paid to HMRC. The proportion depends on what the estate consists of. Potentially, payments for tax due on property can be staged over as much as ten years. We know experts in this area and would strongly advise against doing it yourself entirely where trusts or inheritance tax may be involved.
Dictionary definition: What is Probate?
The action or process of proving before a competent judicial authority (in England and Wales, The Registry) that a document offered for official recognition and registration as the last will and testament of a deceased person is genuine and has been correctly signed. The judicial determination of the validity of a will. (Or indeed, of the distribution under the Rules of Intestacy.)
The Probate Department (brokers) is not a government department. We are a source to FIND economical probate help throughout England and Wales. The number of your local Probate Registry or Registrar of Deaths can be obtained by clicking on the links. If you have any questions about this page “What is Probate” or any related matter, please do get in touch.
What happens to the original Will after Probate?
The Will is retained by the Probate Registry, at least electronically, and is available for anyone to download, along with a copy of the Grant (or Letters of Administration if it was an intestacy – no valid Will).
Do I need probate? Copy Will & Grant Probate Application Forms Guide to Probate
Register a death – who can, where and what do they need to tell the Registrar
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