Applying for Probate and the Will
What is Probate? And what happens if you can’t find a Will? Our brief guide should help put your mind at rest.
When someone dies
When someone dies, the first steps you need to take will depend on how and where they died. See our useful guide to find out more.
Choosing a funeral director
The death of a loved one is one of the most upsetting experiences we have to go through. So, when choosing a good funeral director, what should you be looking out for?
How to register a death
Before you can begin to plan a funeral for your loved one you will need to register the death at the Registrar’s Office. It’s important that this is carried out within 5 days of receiving the medical certificate. Here we will explain how to register a death in Essex.
Help with funeral costs
Bereavement is, without doubt, a devastating experience that can increase financial strain. If you’re in a position where you can’t afford to pay for a funeral, there are options available and you may be eligible for a Funeral Expenses Payment from the Social Fund.
Who to notify
Having to deal with the affairs of the deceased immediately after their death can be complicated and upsetting, however, sorting out these issues is an essential task that we can guide you through. If you are worried about who to tell when someone has died, our simple checklist will act as a handy guide to help you through the process.
Funeral price options
We are pleased to offer a number of price options, which include Unattended Cremation, Simple Cremation, and the Traditional Funeral package.
Applying for Probate, the process
For such a small word, the ‘Probate’ process can be long and complicated to deal with when somebody dies. When combined with an already difficult time for families and friends, this can prove to be incredibly challenging.
In simple terms ‘Probate’ is a document giving legal authority to manage the estate of a person who has passed away. However, it is important to note that nowadays ‘Probate’ is more of a process rather than an instantaneous act.
A simple solution
One of the vital elements to ensuring a smooth ‘Probate’ process is to ensure your personal affairs are in order before you die.
This means making it clear exactly what belongs to you of value and therefore what would be considered as ‘yours’. These belongings are referred to as your individual Estate. This includes listing down (whether it be on paper or using technology) any bank accounts, savings accounts, investments, insurance policies, property, shares or personal belongings, etc.
In addition to this, it is imperative to ensure you have an up-to-date Will which is legally valid. Making a Will is vital if you want to be certain that your wishes will be met after you die and in particular, to ensure that your estate passes to the people and the causes that you care about. Making a Will also certifies that your family is protected – for example in relation to the guardianship of children. Once you have made your Will, be sure to let your Executors know where they can find it.
Applying for Probate, the document
Whilst ‘Probate’ is the description of an overall process, the word ‘Probate’ is also used to describe a document issued by the Family Division of the Court.
Being granted ‘Probate’ is being granted permission to settle an Estate belonging to a deceased person.
To make matters a little more complicated there are two types of ‘Probate’:
- A Grant of Probate
- A Grant of Representation
Grant of Probate
When the Deceased made a valid Will, they would have appointed ‘Executors’ of their Will. You will usually inform somebody if you are appointing them as your Executor as this is a big role to fulfill which holds great legal and personal responsibility.
This is because Executors are the people responsible for making sure that not only all assets belonging to the Deceased are administered but that the Estate is distributed to those named in the Will. This (more often than not) means that the Executor would have to complete an Inheritance Tax Form in accordance with the requirements from HMRC and in turn, make an application to the Court for a Grant of Probate.
The Grant of Probate itself is an A4 document which essentially states that the named Executors are entitled to sell any assets belonging to the Deceased (for example a property or shares), close any bank accounts or investment accounts, realise insurance policies, and pay any of the Deceased’s debts. When all assets have been realised, it is the role of the Executor to distribute the Estate to the beneficiaries listed in the Deceased’s Will – whether this be to individuals or charities.
Grant of Representation
A Grant of Representation (also known as A Grant of Letters of Administration) is granted by the Court when the Deceased did not make a Will or alternatively if the Will that the Deceased did make is invalid.
In the circumstances where the Deceased did not make or Will or the Will is invalid, the process is slightly different as you must turn to the statutory Rules of Intestacy. The Rules of Intestacy provide a listed hierarchy of relatives who would not only ‘inherit’ the responsibility of administering the Estate but also ‘inherit’ the Deceased’s Estate itself.
Those with the responsibility of administering the Estate are called the ‘Personal Representatives’.
Those that take on the role of ‘Personal Representative’ (you can also turn the role down) are responsible for making sure that assets belonging to the Deceased are administered and distributed in accordance with the Rules of Intestacy. This (more often than not) means that the Personal Representative would have to complete an Inheritance Tax Form in accordance with the requirements from HMRC and in turn, send an application to the Court for a Grant of Representation.
A lot of people do still refer to this document as ‘Probate’ because, for all practical purposes, the two types of Grant (Grant of Probate and Grant of Representation) are identical. The Grant of Representation itself is also an A4 document which essentially states that the named Personal Representatives are entitled to realise all assets belonging to the Deceased and distribute the Estate to entitled beneficiaries.
Applying for Probate, is it really necessary?
Applying for Probate (either a Grant of Probate or a Grant of Representation) depends on the assets forming the Deceased’s Estate.
As such, there are circumstances where a Grant of Probate is not needed. This is often when the value of the estate is less than £10,000 and only includes cash funds held in deposit accounts. In these circumstances, you do not usually need to obtain a Grant of Probate to access the money. This is because Estates of this size are deemed to be ‘Small Estates’ and the banks will often release funds to the Executor or the Personal Representative upon sight of the Death Certificate.
On the other hand, where the Estate includes certain assets such as property, shares, certain types of insurance policies, or money in bank accounts over the value of £10,000, the Executor or Personal Representative will always need to obtain Probate.
It is possible to apply for Probate yourself or alternatively, you can work with a solicitor. The latter may be advisable if the Estate is large or complex.
There are several stages in the process of applying for Probate, and it can take a little while to complete the whole process.
The key stages in the process are:
- Register the death
- Establish whether there is a Will – remember to check the Deceased’s house or with their Solicitor. The Will may give directions regarding the Deceased’s funeral wishes.
- Investigate the value of the Estate to establish whether an application for a Grant of Probate or Grant of Representation is needed
- Complete the necessary Inheritance Tax Form and pay any tax owed to HMRC
- Submit the application for Probate by completing the necessary forms and paying the submission fee
- Wait for the court to grant Probate – this can usually take between 4 – 10 weeks
Once Probate has been granted, the Executors of Personal Representatives can start to settle the Estate. This includes closing accounts and distributing gifts in line with the intentions of the Deceased’s Will.
If you need help with applying for probate or any of the above matters, Jessie Stewart at Landons Solicitors will always be a friendly voice at the end of the phone should you wish to speak with her, Jessie’s telephone number is 01277 210021 and her email address is: