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Probate frequently asked questions
Answers to common questions about probate, estate administration and executors.
What is Probate?
Probate is the process of proving that a Will is valid and confirming the Executor's authority to administer the estate of a person who has died. Although Probate actually relates to an Estate where a Will was made, even if there was no Will, a similar process will still be followed and this is often referred to as Probate as well.
It depends on the value and contents of the Estate you are administering as to whether you need to get Probate or not. Usually if there is a property, a large shareholding or cash assets or of more than £25,000 you will need to obtain probate. For more information see Probate explained.
We have a Will, but where do we start?
Firstly, the Executors of the Estate are named in the Will. There can be a number of Executors or only one named and they need to decide if they wish to act in their role as Executor or appoint a professional instead. If not appointing a professional then it may be preferable for just one of the Executors to take the lead.
As Executor, you should obtain a certificate outlining the cause of death, start to arrange the funeral and register the death. Once the funeral has taken place, you should have more time to think about whether you want to get Probate for the estate yourself, or to engage someone to do this for you.
Solicitors usually offer a Probate service, but sometimes base their quotation for the work on an hourly rate basis and or a percentage of the total value of the estate. At Co-operative Legal Services, our fixed fee Probate quotation does not include a percentage of the total value of the estate, this could save you thousands of pounds in fees. Our Probate fees are simply based on the value of the estate and the complexity of the work involved to administer the estate from start to finish. See Probate Complete Service for details.
What do I do if I can’t find the Will or there isn’t one?
If you cannot find a Will in any of the paperwork at the property, you should speak to other family members or loved ones to see if it was left with them.
You could also contact any local Solicitors that were used by the person who died to see if they have any records of a Will being made or in fact have the Will.
You can also check with the Probate Service to see if a Will has been registered there by writing to the Principal Probate Registry in London. If you find a Will, it will need to be sent to the Executor/s.
Some companies also offer Will searches for a fee.
Do I have to act as Executor if I am named in the Will?
No, you do not have to act as an Executor. You have a couple of options. Your first option is to give up all rights to act as Executor as long as you have taken no steps in relation to the estate administration. Your other option, if there are other Executors named in the Will, is to choose to have 'power reserved'. This allows the other Executors to act but you can apply to 'join in' the Probate process later on if you want to or need to.
If you instruct a Probate Solicitor to complete Probate for you, you can remain as Executor, or you can sometimes give Power of Attorney to your Probate Solicitor. In that case, they can obtain the Grant of Probate in their name. You should discuss your options with a Probate Solicitor.
Am I legally responsible if things go wrong as Executor?
When you act as an Executor you are expected to act reasonably and act in the best interests of the estate and its beneficiaries. This could involve getting a fair price for any assets being sold, ensuring that relevant insurance is in place to protect any property assets and to ensure that all Inheritance Tax (IHT) owed is paid prior to the distribution of the estate.
It is advisable to advertise the death in line with specific statutory procedure. This allows anyone who is owed any money by the estate to be paid in full. If you don’t do this, you could be liable if someone makes claim against the estate after it has been distributed.
Finally, someone may dispute the Will. This could be to question whether the Will is valid, produce a newer Will or make further financial claims from the estate. You should always take independent legal advice on your position if this happens.
What is a Personal Representative?
A personal representative is simply another name for someone who is an Executor or if there is no Will, is the person who has legal authority to administer the estate.
What is a Grant of Probate?
A Grant of Probate is the document that is issued to you by the Probate Registry. The document confirms your right to administer the deceased’s estate. This includes cashing the estates assets and distributing them as outlined in the Will.
Do I need to use a Solicitor for Probate?
No you do not need to use a Solicitor for Probate and you can manage the process yourself. If there are only cash assets of a lower value, you may decide to deal with the Probate process yourself. In fact, in some cases Probate may not be necessary.
You should check with each bank or building society holding any funds to find out about their own limits for Probate. Some are as low as £5,000 and some as high as £25,000.
How do I calculate the value of the Estate?
Add the value of all of the financial assets together and then deduct any liabilities of the estate. This may be items such as final utility bills, mortgages, loans and any other debts owed.
How do I know if I have to get Probate?
This usually depends on the value of the estate and whether there is property or land included. If there are only cash assets, you may not need Probate. You should check with the individual financial institutions where the cash assets are held as their threshold for Probate may be as low as £5,000 or as high as £25,000.
How do I know if I have to pay Inheritance Tax?
Inheritance Tax is usually payable for estates worth over £325,000. The value of an Estate is reached once all the debts have been paid and if this is over £325,000 you will usually have to pay Inheritance Tax. Remember though, that there are certain exemptions and reliefs from Inheritance Tax. In addition, if more than 10% of the estate is gifted to charity, the Inheritance Tax rate can be reduced from 40% to 36%. These figures are accurate as of March 2016 and are subject to change.
How long will Probate take?
Probate can often take anywhere from 6 to 12 months. It could take longer if the estate is complicated. Probate does require some laborious and highly detailed administration work.
What should I do with items gifted in the Will to beneficiaries who have died?
Some gifts will simply lapse if the beneficiary died before they could benefit from the Will and the gift will join the ‘residue’ (anything left over after the gifts are given) of the estate. However, there are some complex rules around this so it is advisable to get expert legal advice on this point.
Is the Probate process the same in England, Wales and Scotland?
The law in England and Wales is different to that of Scotland, and consequently the process for Probate in Scotland is also different. We are able to assist with Probate in Scotland through our partnership with McClure Solicitors. For more information, see our dedicated page on Probate and Executry in Scotland.