How to Obtain Probate
28 February 2018
By Probate Solicitor Kim Hammond
When someone is dealing with the Estate of a person who has died, you might hear them refer to ‘getting Probate’. But what does this mean? Essentially, they are talking about obtaining a legal document which will give them authority to wind up the deceased person’s financial and personal affairs.
In order to obtain this document in England or Wales, an application will need to be made to the Probate Registry (Court). Once granted, the document enables an appointed person (known as the Personal Representative) to deal with any assets, property and money that the deceased person owned.
As the steps below demonstrate, the process of obtaining Probate involves a significant amount of legal, administrative and tax work. This process can take months and can have serious repercussions if mistakes are made.
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How to Obtain Probate
Whilst the Probate process differs slightly depending on certain factors, such as the value of the deceased persons’ Estate and whether Inheritance Tax is payable, the method of obtaining the Grant of Probate or Grant of Representation is essentially the same.
1. Establish Who Should Apply for Probate
It is necessary to first establish who should act as the Personal Representative, as this is the person who will need to apply for the Grant of Probate or Grant of Representation.
The person entitled to apply for Probate will be determined by either the Will, which names Executors, or the Rules of Intestacy, which state who has the right to administer the Estate in order of priority. In some circumstances, the person named as Executor in the will may be unable to act. It could be that they have died before the deceased, lost mental capacity or renounced (resigned) their right to act as Executor. In a properly drafted Will, there will usually be clauses included which appoint someone else to act if any of those circumstances should arise.
2. Value the Estate
Next, the value of the Estate must be calculated. This means that all assets, money and property owned by the deceased at the time of death will need to be identified and valued. This is usually achieved by contacting all the deceased’s financial organisations and having agents or surveyors value property. The value of all liabilities (debts) will also need to be calculated, including the cost of the funeral, mortgages and loans, outstanding bills, council tax etc. This figure can then be deducted from the total Estate value.
Any gifts or transfers of assets made by the deceased before their death will also need to be taken into account. The value of the assets and any gifts made are added together to give the ‘gross Estate’ and any liabilities deducted to give the ‘net Estate’.
3. Calculate if Any Inheritance Tax is Due
Once the value of the Estate has been calculated, this can be used to determine whether the Estate is liable for Inheritance Tax or not. Inheritance Tax will only be payable where the deceased’s net Estate exceeds the Inheritance Tax threshold and any figure in excess of that sum will be taxed at 40%.
The basic Inheritance Tax threshold for an individual is currently £325,000 but this can increased by a further allowance of £100,000 in certain circumstances. It’s also possible for either full or partial thresholds to be transferred from the Estate of a predeceased spouse, meaning that the threshold could be as high as £850,000 in some circumstances.
An Inheritance Tax form must be completed regardless of whether Inheritance Tax is payable or not, though different forms should be used dependent on the particular circumstances of the Estate. In an Estate where no Inheritance Tax is payable, a simplified tax return can be submitted direct to the Probate Registry but in a more complex or taxable Estate, a detailed tax return must be sent to HM Revenue & Customs.
Any Inheritance Tax due must be paid and a receipt issued by HMRC before a Grant of Probate or Grant of Representation will be issued by the Probate Court.
4. Swear an Oath
Once any due Inheritance Tax has been paid, an Oath must be sworn and submitted to the Probate Registry.
This is a document stating details of the deceased and the Personal Representative, as well as confirming the gross and net values of the Estate. The Oath must be sworn (together with the Will if there is one) in the presence of a Solicitor or a Commissioner for Oaths. This must then be sent to the Probate Registry either with the simplified tax return or the Inheritance Tax receipt issued by HMRC.
The Probate Registry should then issue the Grant of Probate or the Grant of Representation to the person or people swearing the Oath. Once the Grant has been issued, the assets can be gathered in and the Estate administered.