Step by Step Guide to Probate
20 March 2017
Probate, also known as a Grant of Probate or Grant of Representation, is the legal document required to deal with a deceased person’s Estate in England or Wales. Whether you need Probate depends on the deceased’s assets and their value. In all Estates where there is a property, Probate will be required.
Once you have confirmed that Probate is required, you will need to establish if the deceased had a Will, commonly known as their Last Will and Testament. This will establish who should obtain the Grant of Probate, which will give them the legal authority to deal with the Estate.
If there is a Will, this duty will fall to the Executor/s. The Will should appoint at least one Executor, and no more than four. If the deceased died with no Will then responsibility falls to the person entitled to the Estate under the Laws of Intestacy. This person is called the Administrator, and he/she must apply to get Letters of Administration, rather than a Grant of Probate.
The Executor/Administrator of the Will then needs to establish the value of the deceased’s assets and liabilities, known as the gross and net Estate. This needs to include all sole assets and joint assets that were owned by the deceased.
It’s also necessary to find out if the deceased made any tax exempt gifts in the 7 years before their death, whether they used their annual allowable gift allowance, and also if there are any Gifts with Reservation of Benefit. The Executor will also need to make enquiries into all worldwide assets.
HMRC & Inheritance Tax Forms
Once the value of the Estate has been calculated, the Executor/Administrator needs to complete the relevant HM Revenue and Customs (HMRC) tax forms. If Inheritance Tax (IHT) is not payable, or the Estate is going to a surviving spouse or charity, an IHT 205 form is required. This is a much simpler declaration.
However, for all Estates that are subject to Inheritance Tax, the IHT 400 form is needed. This form is more extensive and exact values are required. This means that the Executor/Administrator should obtain written valuations of all the assets, including personal possessions, property and shares.
With our Probate Complete Service we take full responsibility for getting Grant of Probate and dealing with the Legal, Tax (excl VAT), Property and Estate Administration affairs*.
Transferable Nil Rate Band
There is the potential to use a nil rate band from a pre-deceased spouse. For example, when someone passes away and their husband or wife has already died, their Executors should ensure they know what happened to both Estates. It may be possible to transfer the nil rate band, which will increase the non-taxable element to £650,000. In April 2017 there will also be the residential nil rate band to claim, reducing the taxable element by a further £100,000.
The Probate process differs slightly for taxable Estates as the Inheritance Tax needs to be paid before the application can be submitted to the Court. The IHT 400 form is submitted to HMRC at the same time the tax is paid and the papers are submitted to the Court. The Court will hold the application, pending the IHT 421 form, which is sent directly to them from HMRC.
The Executor/Administrator will then have to attend an appointment with the Court, where they will swear an Oath attesting that the contents of the details provided are true to the best of their knowledge.
The Court will also need to satisfy themselves that their requirements have been met. This will include the Court confirming the identity of the Executor/Administrator, and that they are the Executor named in the Will, or the Administrator entitled under the Laws of Intestacy. The Court will then process the application and the original Grant of Probate or Letters of Administration will be sent directly to the applicant.
Legal Implications and Liabilities
This step by step guide to Probate is a very simplified explanation of the Probate process which can become very complicated. Anyone undertaking the role of Executor or Administrator needs to understand the legal implications and liabilities before taking on the role. Executors and Administrators have responsibilities set out by the Court to ensure that they act in accordance with the Will and for the beneficiaries of the Estate.
An Executor/Administrator can be held personally and financially liable if the Estate is not administered correctly. Additionally if debts are outstanding and they have not made sufficient enquiries, then they can be accountable for the outstanding debt. There are many pitfalls in being and Executor that people may not be aware of.
For more information about how to be the Executor of a Will or how to appoint Executors see our free Executor Guides. If you have been appointed as an Executor of a Will and you are not sure what to do, we can help you.
*We can also pay all the costs of a Co-op Funeralcare funeral, providing the Estate owns sufficient assets which can be sold in due course to repay our costs.