When somebody close to you dies it can be a hugely traumatic time, especially when you are left handling all the intricacies of their estate. Our probate expert and Head o Wills, Trusts and Probate Nicola Weldon, has answered some of the most frequently asked questions we receive from clients surrounding all matters of Wills and probate.
What is probate?
Probate is the legal right to deal with someone’s property, money, and possessions (their ‘estate’) when they die and describes the process of proving the validity of a Will and affirming who has authority to administer the estate of the deceased.
Only certain people can apply for probate. Who can apply depends on whether there’s a Will. If the deceased has left a Will, it will name someone that they have chosen to administer their estate. If there’s not a Will, there are special rules (known as the rules of intestacy) that govern who can apply. The individuals with authority to apply are collectively called the Personal Representatives.
This is naturally a very difficult time for family and friends, but it is essential to make sure the deceased’s affairs are all in order and that all available tax reliefs and allowances are claimed, so expert legal advice is always advantageous. Typically, the process will involve organising their money, assets, and possessions before distributing them as inheritance once any outstanding taxes or debts have been considered.
When is probate required?
Probate is usually required if the deceased owned property and/or had money held in stocks and shares, investments, and bank accounts, however some financial institutions have limits below which probate is not required. Another, and probably the most common scenario when probate is not required, is when the deceased owned assets in joint names, such as bank accounts or life policies, which will continue in the name of the survivor.
Do you need probate if you have a Will?
Having a Will does not determine whether or not probate is required, but a Will should name an executor or group of executors who will have the authority to apply for a grant of probate. The grant of probate (also known as a grant of letters of administration, when there is no Will) is a legal document which gives the Personal Representatives the authority to deal with the deceased’s estate and to share it out in accordance with their Will, or the intestacy rules that apply if there is no Will. However, you do not always need probate to be able to deal with an estate. This is likely to depend upon the assets owned by the deceased and whether they were owned in the deceased’s sole name or jointly.
How long does probate take?
In the majority of cases, the process of probate takes between six months to one year to complete from the death of the deceased. The overall timeframe of the process will depend largely on the complexity and size of the deceased’s estate. Whilst it is not a legal requirement, in certain circumstances, the Personal Representatives may be advised to hold on to the deceased’s assets for a minimum of six months after the grant of probate or grant of letters of administration, and therefore they are advised not to distribute anything to beneficiaries before this time expires. This helps to ensure that any assets are not released before any claims to the estate have been made and assessed.
How do you know when you don’t need probate?
There are some cases when a Personal Representative may not need to apply for a grant of probate or grant of letters of administration. This most often occurs when the deceased only owned a small amount of money and didn’t own any property. You will know when probate is needed, if you’re asked by a bank or any other institution to provide it. Another circumstance when probate is not required is when the deceased owned assets in joint names. Whether these assets are property, bank accounts, life policies or something else of this nature, the ownership of these assets is most likely to pass to the surviving owner without the need for probate. It should be noted, however, that there are occasions when joint property does not automatically pass to the surviving owner and so it is important to take specialist legal advice to ensure that assets are correctly dealt with.
Can you do probate yourself?
It is possible to complete the probate application form yourself. However, the circumstances around probate can become quite complex very quickly, and at what is a very difficult time for family, the task of starting to deal with issues around probate is often best handled by a professional. For this reason, many Personal Representatives use Solicitors to handle the entire probate process. While DIY probate can reduce costs, it leaves you with a lot of paperwork and responsibility. The Personal Representatives have a legal responsibility for meeting all legitimate claims (including tax) and failure to act correctly may result in the Personal Representative being sued by claimants.
How much does probate cost?
There is a standard fee to make a probate application, which is currently £273 in England, although there is no fee if the value of the estate is £5,000 or less. Other professional fees and legal costs around the administration of an estate will vary, but typically range from between 1.5% to 5% of the value of the estate. These costs are taken from the estate before assets are distributed to beneficiaries.
Can you live in a house during probate?
What happens to a house and its contents after the owner dies needs to be monitored very carefully. All of the deceased’s possessions form part of their estate. Where an executor is appointed under a Will, they have immediate authority to deal with the deceased’s possessions. On the other hand, where there is not a Will, the Personal Representatives do not have authority to deal with the deceased’s possessions until the grant of letters of administration has been issued. If a person already lived in the property as their residence at the time of death, depending on any contradictory provisions in a Will, it is likely that they will be able to continue to live in it pending the outcome of probate proceedings.
Can you empty a house before probate?
With the inheritance tax (IHT) threshold at £325,000, if the deceased’s estate is well under this value, it is generally reasonable to begin the house clearance before probate. However, any collections, antiques and other valuable household contents should be valued before they are disposed of. Likewise, even when the value of an estate falls below the IHT threshold, it is still advisable to keep records of anything that is sold. If the estate is close to the IHT threshold, a valuation of the chattels (the deceased’s possessions) should be obtained. This avoids scrutiny from HMRC which, which could cause a significant delay to the probate process and possible financial penalties.
Can you contest a Will after probate?
Yes, it is possible to contest a Will after probate. There are various grounds under which a Will may be challenged, including a belief that the Will is invalid and/or that the Will or intestacy rules do not provide reasonable financial provision for a defined class of people connected to the deceased. That being said, contesting a Will after probate does become more difficult and more demanding from a legal perspective. This can make it an expensive process, and a fruitless one should the court find in favour of the executors. In addition, there are specific time periods within which any claim against an estate must be made. If you are dissatisfied with a Will, the effect of the intestacy rules or the administration of an estate generally, then it is vital to seek legal advice as quickly as possible.
If you have any further queries not answered above, please contact or arrange an appointment with our specialist Wills, Trusts and Probate teams in Colchester, Ipswich, Tendring, Bury St Edmunds and Chelmsford.