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Probate

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Quick Links

- Types of grant of representation
- Who is entitled to a grant?

- How can I apply for a grant?

- As an executor what do I have to do?
- What about Tax?

Probate

When someone dies you may have to deal with their money, property, other assets and personal items. Together these things are called ‘the estate’. The person or people dealing with the estate will need the authority to do so. They get authority by obtaining a legal document called a ‘grant of representation’ from a Probate Registry. If there is a Will this document is known as a Grant of Probate and if there is no will it is known as Letters of Administration.

Once you have the grant of representation you can collect in the money and property, pay any bills (tax, funeral expenses etc) and share out the estate to the people entitled to it (the beneficiaries).

There are some circumstances where you may not need a grant of probate. Examples include: 

  • An asset that isn’t part of the person’s estate.
  • An asset held in joint names may automatically pass to the survivor.
  • If an asset has been nominated, which means that the person who died has filled in forms in advance saying what will happen to it. This is quite common where the benefit is part of a work related scheme.
  • You may also be able to deal with assets worth under £5,000 without a grant of probate depending on what they are.

But if you are going to need a grant of probate at all (for example, to sell a house) it is sensible to apply for one as soon as possible.

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Types of grant of representation

There are three types of grant of representation:

  • Probate: Application for probate is done when there is a Will and the Will names one or more persons to deal with the estate. These people are called ‘executors’ and they should apply for the grant of probate.
  • Letters of Administration (with Will): This is when there is a Will, but there is no executor to apply for a grant. This might be because there is no executor named in the Will, or the person who was named cannot do it or does not want to apply for the grant.
  • Letters of Administration: This is where there is no Will (the person died intestate) or there is a Will but it is invalid.

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Who is entitled to a grant?

This depends upon which of the three types of grant is being applied for. 

There are rules setting out who is entitled e.g. a person under 18 cannot obtain a grant, if more than one person is entitled they can apply together but the maximum number of people who can apply is four.

The persons who will most commonly be entitled to a grant are as follows:

  • Where there is a Will and there are executors named in the Will they are entitled to a grant in priority to anyone else.
  • Where there is a Will but no executor to act, the next person generally entitled to a grant would be a person named in the Will who has been left the residuary estate i.e. the person who is to receive the estate or what is left of it after all the other legacies (gifts) have been paid out.
  • Where there is no Will and the deceased died intestate only those who have a beneficial interest in the estate (next of kin) are entitled to apply for the grant but there is an order of priority as follows:
  • A surviving husband or wife.
  • Children and the children of any child who died before the deceased. The term ‘children’ does not include step-children.
  • Father or mother.
  • Brothers and sisters and the children of any brother or sister who died before the deceased.
  • Grandparents.
  • Uncles and aunts and the children of any uncle or aunt who died before the deceased.

I am entitled to apply for a grant but I don’t want to

You do not have to if you do not want to. Where there is more than one executor named in the Will they do not all have to apply.

You have several options:

  • Renouncing probate 
    If you do not want to be an executor you can renounce probate which means that you give up your entitlement and do not take any further part in the probate. A signed letter by the renouncing executor to this effect must be sent to the Probate Registry with the application.
  • Power reserved 
    You might want to reserve your right to apply for probate if it becomes necessary in the future and have ‘power reserved.’ This often happens where executors are in different parts of the country and it is more convenient for one to act than another. The Probate Registry will send a ‘power reserved’ form for the executor to sign upon receipt of the application for a grant which must be returned to the Probate Registry.
  • Appointing someone else to act in your place
    You can appoint someone to be your attorney to stand in your shoes and obtain the grant on your behalf. A signed letter by the executor who wants to appoint someone else must also be sent to the Probate Registry with the application.  

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How can I apply for a grant?

If you need to apply for a grant, it is not always the case that you need to appoint a solicitor to do that for you.  Deciding whether to do that or not may depend on:

  • The value of the estate
  • The type of assets in the estate
  • If the estate will be subject to inheritance tax.
  • How confident you, and others, feel about dealing with the process.
  • If you get on well with others who may also be applying.

If you decide to do this without a solicitor, you will find lots of useful information in our resources section.

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As an executor what do I have to do?

It is not essential for you to appoint a professional advisor to help with applying for probate.  In many cases it is possible for the work to be done by the executor themselves.  However it is important to recognise that in this role you will have a responsibility to complete the process of administration and can be liable if you fail to do so lawfully.

An executor has a number of key duties and responsibilities which include:

  • Applying for the grant of probate.
  • Identifying where there may be a claim against the estate.  This may be from a relative, friend or other third party such as a creditor.  If a valid claim is identified it will need to be dealt with perhaps with the help of other professional advisors.
  • Completion of all relevant tax forms for, inheritance, income or capital gains tax and pay any tax due.  You can talk to our tax advisor if you have any concerns about this.
  • Advise relevant organisations of the death and collect in the assets such as money held in bank accounts and other savings.
  • Search for unclaimed or missing assets
  • Once all the assets and liabilities are known, prepare accounts to send to the relevant beneficiaries.
  • Settling any debts and liabilities
  • Distribute the assets of the estate to all those named in the Will, or entitled by the rules of intestacy.

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What about Tax?

We have a separate section on inheritance tax.


 

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