The Probate Process Explained
25 October 2017
When someone dies in England and Wales, you may need to go through a process called Probate. This will give you the legal authority to deal with the deceased person’s ‘Estate’, which is the collective term for everything he/she owned.
Not everyone will have to go through the Probate process when a loved one dies. It depends on whether they owned property, the total value of the deceased person’s Estate, and whether their assets were held in joint or sole names. For more information, see When Don’t You Need Probate?
Contrary to what many people believe, it doesn’t matter whether the deceased left a Will – Probate may be needed in either situation. The Probate process is largely the same either way, although there are some differences to be aware of.
Probate Process When There is a Will
If there is a Will, it will provide instruction as to who should apply for Probate and administer the Estate, and who the beneficiaries are.
Therefore when someone dies, one of the priorities is to find out whether there’s a valid Will in place. If so it will name Executors. These are the people the deceased wanted to deal with their Estate, and unless they have already passed away or wish to ‘renounce’ their role, they will be responsible for Probate.
As long as the Executors are willing and able to act, they can then begin the Probate process. When there is a Will, one of the first things that needs to be done is to obtain an official copy of the death certificate, so you can apply to the Probate Registry for a Grant of Probate.
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*.
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In order to get the Grant of Probate, the Executors will need to fill out a PA1 form. This asks for details about the deceased, their relatives, and their assets. It can take some time to accumulate this information, particularly if there are foreign assets.
The PA1 form needs to be sent back to the Probate Registry, along with the correct Inheritance Tax form, an official copy of the death certificate, the Probate Registry office fee, the original Will and three copies of the Will (as well as any Codicils).
If Inheritance Tax is payable, the Executors will need to arrange payment, otherwise the Grant of Probate will not be issued. It may also be necessary to swear an Oath, which is a promise that the information you’ve given is true to the best of your knowledge.
If the Probate Registry finds that everything is in order, a Grant of Probate will be issued. Only then can the Executors start ‘administering’ the Estate. This involves collecting in, transferring or selling the assets, paying off debts, and finalising any other affairs; such as rehoming pets.
The next step is to distribute the Estate to the beneficiaries named in the Will. This should be relatively straightforward, as the deceased will have indicated exactly who should receive an inheritance, and what this inheritance should consist of.
However, complications will arise if the Estate is insolvent, which means there isn’t enough money to pay off all the debts. Executors may also have difficulty finding a missing beneficiary.
Once the Estate has been distributed, the Executors must then prepare the final Estate accounts. These will need to be signed by the Executors and main beneficiaries. When this has been done, the Probate and Estate administration process has been completed.
Probate Process When There is No Will
If there is no Will, one of the deceased’s relatives must apply for Probate. Usually this person will be the deceased’s next of kin. This person who applies for Probate is called the Administrator, rather than the Executor.
The Administrator must apply to the Probate Registry for a Grant of Letters of Administration. This is almost the same as applying for a Grant of Probate, as the Administrator will need to complete a PA1 form, and sent it back to the Probate Registry with the correct Inheritance Tax form, an official copy of the death certificate and the Probate Registry office fee. However, certain sections of the PA1 form will not be relevant, as there isn’t a Will. These sections can be left blank.
The Administrator must also arrange payment of Inheritance Tax and swear an Oath, if applicable.
If the Probate Registry is satisfied with the application, it will issue a Grant of Letters of Administration. This will give the Administrator the legal authority to begin winding up the deceased person’s affairs. This nature of this will depend on what the deceased owned, but may include selling or transferring property, collecting / cashing in assets and paying any liabilities.
Once this has been done, the Estate can be distributed to the beneficiaries. As there is no Will, the Estate must be distributed according to the Rules of Intestacy. These place relatives into an order of priority, and who inherits what will depend on the size of the Estate and who those surviving relatives are. The Administrator is often the main beneficiary.
Finally the Administrator must prepare the Estate accounts to be approved and signed by the beneficiaries.
Probate Responsibilities & Liabilities
Whether you are an Executor or an Administrator of an Estate, you will have a significant amount of responsibilities to deal with during the Probate process, which could take up to a year to complete. You will also be personally responsible for any mistakes made.
That’s why many people choose to instruct our Probate Solicitors to act on their behalf, as it relieves the burden from their shoulders, giving peace of mind that everything is being taken care of by a brand name you know and can trust.
* 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.
_Co-op Members save £200 or get 5% off Probate and Estate Administration whichever is higher_, terms & conditions apply.