Do I Need a Lawyer to Probate a Will?
31 May 2018
By Probate Lawyer Sian Davies
You don’t have to use a Lawyer to Probate a Will, but there are many benefits, such as having a Probate Lawyer provide independent legal advice throughout the Probate process which can take 6-9 months or longer. It can also spare you from having to deal with all of the administrative, legal and tax work required; such as calculating Inheritance Tax and corresponding with HM Revenue & Customs (HMRC). It could also prevent you from overpaying Inheritance Tax.
With our Probate Complete Service we take full responsibility for getting Grant of Probate and dealing with the Legal, Tax (excluding VAT), Property and Estate Administration affairs*.
*We deal with HMRC on your behalf and we can 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.
When is Probate Required?
The first stage is to understand whether Probate is required to deal with a person’s Estate. Probate may not be required if there is no property, see Probate for Small Estates. Most banks and building societies have thresholds where they may not release funds without a Grant of Probate. To find out if Probate is required take our short online Probate questionnaire or call us so we can tell you if Probate is required.
What is My Role as Executor or Administrator?
If Probate is required and the deceased person has left a valid Will, this should specify who they would like to handle their Estate. This person is known as an Executor and they have the responsibility for obtaining Probate and using it to deal with the deceased’s assets. If there is no Will, then the next of kin will be appointed into this role and will be known as the Administrator. For more information see Executor / Administrator Duties explained.
In order for a deceased person’s wishes to be carried out, it is important that the original Will is found. If a Will cannot be found amongst personal possessions, they are often stored with the professional who drafted the Will or in some cases with banks and building societies.
If you have been appointed as an Executor or Administrator, it is at this stage that you may wish to decide whether to deal with the Probate yourself, or instruct a Probate Lawyer to administer the Estate on your behalf.
If you decide to apply for Probate without using a Lawyer, there are four main steps to follow:
- Complete a Probate PA1 application form – this can be found online
- Calculate and report the Estate’s value to HM Revenue & Customs
- Pay any Inheritance Tax that is due
- Send the Probate PA1 application to the Probate Registry (Court)
- Swear an Oath.
Once the Grant of Probate has been obtained, you will then be able to complete the rest of the Estate administration process. This includes finding, selling or transferring any financial assets, finding and paying off any outstanding debts and accounting to HM Revenue & Customs for any Inheritance Tax, Income Tax or Capital Gains Tax that’s due to or from the Estate. As part of this process you would need to identify any tax deductible gifts or donations made to charity in the seven years prior to the deceased persons’ death.
Finally, you will need to prepare the Estate accounts which document all payments into and out of the Estate before distributing what’s left to the Beneficiaries.
If you are dealing with Probate for a small Estate then it may be a relatively straightforward process to obtain the Grant of Probate and administer the Estate. However, where an Estate requires Inheritance Tax to be paid, has complex issues or you simply do not feel confident in dealing with the Estate or with HM Revenue & Customs, it is prudent to obtain advice from a Probate Lawyer. As an Executor or Administrator of an Estate, if a mistake is made, you could be held legally and financially liable.
Should I Instruct a Probate Lawyer?
Although you can Probate a Will without the expert help of a Probate Lawyer, administrating an Estate is often a complex and lengthy legal process. It is therefore very important that if you are unsure or are unable to commit the time required (potentially up to 100 hours) to administer the Estate, that you consider instructing a Probate Lawyer to deal with Probate on your behalf.
If you do not feel confident in carrying out the Probate work required, or if the Estate has complexities such as foreign assets, missing documentation or missing Beneficiaries you can benefit from instructing a Probate Lawyer.
What Does a Probate Lawyer Do?
When you instruct a Probate Lawyer to deal with the Estate administration on your behalf, they will probably start by making the initial enquiries regarding the deceased’s assets. They can also take responsibility for calculating whether any Inheritance Tax is due and advising how this should be paid.
Following this, they can then submit the application for the Grant of Probate. Once issued, this can be used to deal with the deceased’s assets, acting on your instructions as Executor or Administrator.
With our Probate Complete Service, we will take care of all of the legal, tax and administrative work on your behalf. We’ll also arrange for the sale or transfer of property, shares and other Estate assets.
This service is provided for a fixed fee which we will agree with you before any work starts. There are no upfront costs to pay, as our fee is deducted from the Estate once this is in funds.
Co-op Legal Services is the largest provider of Probate and Estate Administration services in England and Wales, trusted to deal with over £1.3 billion in Estates annually.