DIY Probate Explained
14 January 2016
The DIY Probate and Estate Administration process in England and Wales depends largely on whether the person who died left a valid Will. If they did, the Executor/s named in the Will can start administering the Estate. If the deceased person died with no Will, the Rules of Intestacy have to be followed and this can add additional complications to the Estate administration process.
Probate When There is a Will
If your loved one died leaving a Will, hopefully they told someone in the family where to find it or kept it safe with a Solicitor. The Will identifies who has been selected to be the Executor/s of the Estate.
This can be more than one person and there is no obligation to carry out the duties of an Executor if you don't want to. If you decide this is not something you wish to do you can appoint a Solicitor to complete Probate for you, or where there are other Executors named in the Will, you can simply relinquish your own powers as Executor and allow them to complete the Probate process themselves.
Probate When There is No Will
If there is no Will, the Rules of Intestacy determine who will administer the Estate. Those people entitled to administer an Estate have to follow a specific order in accordance with the Rules of Intestacy, starting firstly with the deceased's spouse/civil partner, and then children if there is no spouse/civil partner.
If you were the deceased persons' partner and you were not married or in a civil partnership, the Rules of Intestacy neither allow for you to apply for Probate, nor receive any of the assets in your partner's Estate.
However, if you do wish to administer the Estate yourself, there are five main steps to complete. They are:
- Make enquiries
- Deal with Inheritance Tax (IHT) and apply for a Grant of Representation (Probate) if required
- Collect assets and pay debts
- Account for the Estate transactions
- Distribute the Estate
An explanation of each step in the Probate process in more depth:
On the face of it, this step does not seem that complicated, but you will need to make numerous and detailed enquires, many of which will need to be completed during office hours. This may not be convenient, particularly if you work full time; or they may need to be done by letter, which can be time consuming.
You will need to get a complete picture of the value of the Estate and details of all of the assets and liabilities. This includes any money owed by the Estate and any money owed to the Estate. You will also have to deal with pensions, benefits and any income tax or National Insurance Contributions owed, so these enquires are very important. Ultimately, they form the basis on which a valuation of the Estate is produced, and whether Inheritance Tax is payable. 2. Deal with Inheritance Tax (IHT) and apply for Probate if required
If there is property, land or shares in the Estate, or if a particular financial institutions requires it, you may need to apply for a Grant of Probate, or a Grant of Letters of Administration if there is no Will. Before you can apply for the Grant of Probate or Grant of Letters of Administration you will need to have completed step 1 (above).
You should calculate the total value of the Estate and pay the Inheritance Tax (IHT) due. IHT is currently charged at 40% on any amount over £325,000, though the rules for calculating IHT can be quite complex. Once you have paid any IHT due, or if there is none to pay, you can apply for the Grant of Probate or Grant of Letters of Administration. 3. Collect assets and pay debts
Once the Grant of Probate or Grant of Letters of Administration has been issued, you should be able to access the deceased's bank accounts to close them, sell any property, settle any debts and collect any money owed. You should also ensure that all tax liabilities are settled, such as Income Tax or Capital Gains Tax. You should also protect yourself against any personal liability for any unknown debts and liabilities by placing notices for creditors in the relevant newspapers. 4. Account for the Estate transactions
Before distributing the remaining Estate assets and funds, you should finalise the accounts (that should be kept up to date throughout the Estate administration process), to show all financial transactions on the Estate and the balance remaining to be distributed to the beneficiaries. 5. Distribute the Estate
Once you have settled the Estate from a financial perspective, now you can distribute the balance of funds in accordance with the Will. If there was no Will, who the beneficiaries are will be determined by intestacy; see Rules of Intestacy Explained.
Whilst there are only five main steps, before you go ahead with DIY Probate, you should carefully consider the time commitment needed and the skills required to carry out the Probate process successfully. There is a lot of paperwork to complete; detailed enquiries to make and administrative skills needed to complete Probate, and these tasks may hold no interest for you. You should expect the whole process to take somewhere up to around a year and you should factor in a commitment of usually around 70 to 100 hours.
Another option is to instruct a Probate Solicitor or specialist to complete Probate for you. At Co-op Legal Services we offer fixed fee probate and once we have provided a written quote for the agreed work, that price will not change unless the original information we are given is shown to be incorrect or circumstances change.