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When is probate required?

So, what is probate? Probate is the legal process (also known as the estate administration process) where a Will is recognised as a valid public document that is the true last testament of the deceased, and the estate is administered accordingly. When a person dies, their estate, which includes their money, property, and possessions, must be managed and distributed. A Grant of Probate, issued by the Probate Registry in England and Wales, authorises Executors named in the Will to carry out this task according to the deceased's wishes. If no Will exists, a similar authority called Letters of Administration is issued for estate administration under the rules of intestacy. Authority to administer estates where there is a Will derives from the Will itself and in intestacy cases, authority to administer the estate derives from the Grant of Letters of Administration.

When is probate necessary?

Probate is required when dealing with estates that include significant assets such as bank accounts with substantial funds (subject to varying thresholds set by financial institutions), property or land owned solely or as tenants in common, stocks and shares, and certain life insurance policies not written in trust. The necessity for probate hinges on the types and values of assets within the estate, with some assets being transferable without probate under certain conditions.

Are there any exceptions?

Exceptions to the requirement for probate include smaller estates or situations where the deceased's assets were jointly owned which pass directly to the surviving co-owner. Financial institutions have their criteria for releasing funds without probate, typically based on asset value thresholds. Therefore, determining whether probate is required or not can vary depending on the specific assets and their ownership status.

How is probate obtained?

Obtaining probate involves valuing the estate to understand its worth and assess any Inheritance Tax liabilities (if applicable). This process includes reporting the estate's value to HM Revenue and Customs (HMRC) where required and, if applicable, paying some or all of the tax due. The application for a Grant of Probate can be made online or by post, using forms designed for estates with or without a Will. Following the payment of a probate fee, the Probate Registry processes the application and, if approved, issues the Grant of Probate.

What happens if probate is not applied for?

Failing to apply for probate when it is required can lead to significant delays and legal complications in managing and distributing the deceased's estate. Without a Grant of Probate or Grant of Letters of Administration, Executors or next of kin cannot legally access the deceased's assets, sell property, or settle the estate's debts, leaving the estate in limbo and potentially leading to disputes among heirs or beneficiaries.

How long does the probate process take?

The timeline for the probate process varies, ranging from 4 to 16 weeks from submission for straightforward applications to potentially several months or more for complex estates requiring detailed asset valuations, tax assessments, and settlement of claims. Factors influencing the duration include the estate's complexity, Inheritance Tax issues, and the Probate Registry's and HMRC's efficiency in processing the necessary documentation.

How much does probate cost?

The cost of obtaining probate can vary significantly, primarily comprising the probate application fee and legal fees, among other potential expenses. The application fee for probate is £273 for estates valued over £5,000 in England and Wales, with no fee for estates under this value.

Extra copies of the grant can be obtained for £1.50 each, which can help deal with various asset holders. Legal fees depend on the complexity of the estate and the solicitor's rates, which can range from a fixed fee service to hourly rates. Additional costs may include valuation fees for assessing property, stocks, and other assets, and the expenses related to posting legal notices to creditors. These costs should be factored into the estate before distribution to beneficiaries.

Do I need a solicitor for probate?

While it's possible to handle probate without a solicitor, especially for simpler estates, many people choose to use one due to the complexity of the legal and tax issues that can arise and for peace of mind. A solicitor can be particularly helpful for taxable estates, involving complex assets, or if there are potential disputes among beneficiaries.

However, for straightforward estates where no tax is due, and the deceased's financial affairs are in order, individuals may feel comfortable applying for probate themselves. The decision often depends on the Executor's confidence in managing the process, the estate's complexity, and the potential for legal issues.

What are the responsibilities of the Executor or Administrator?

The Executor (if there's a Will) or Administrator (if there's no Will) has the crucial task of collecting the deceased's assets, paying off any debts, and distributing the remainder of the estate according to the Will or the rules of intestacy. This includes managing bank accounts, selling property, and dealing with shares, among other duties. They must also ensure that any Inheritance Tax, Income Tax, and Capital Gains Tax due are paid. The preparation of detailed accounts of the estate's assets and liabilities is required for transparency to beneficiaries. The role carries significant legal responsibilities and requires careful attention to detail to ensure the estate is administered correctly and lawfully.

How do you deal with property and assets in probate?

Managing, distributing, or selling property and assets during probate involves several steps. Firstly, assets must be accurately valued as part of the estate valuation process. Property and land may need to be sold, which requires the Grant of Probate to be issued before this process can proceed. Similarly, stocks, shares, and other financial assets must be handled according to whether they will be transferred to beneficiaries or liquidated. Executors need to ensure that all dealings are in line with the legal and tax obligations of the estate, with the proceeds used to settle debts before distributing the remaining assets according to the Will or intestacy rules.

What if there is no Will?

If the deceased did not leave a Will, the estate is distributed according to the rules of intestacy. In this case, a close relative of the deceased can apply for Letters of Administration, which serves a similar function to the Grant of Probate. The rules of intestacy determine the hierarchy of beneficiaries, with spouses, civil partners, children, and other relatives in line for inheritance in a set order. Administering an estate without a Will can be complex, particularly when identifying and locating all potential heirs, and may require additional legal assistance to ensure compliance with the intestacy rules.

Can probate be contested?

Probate and the contents of a Will can be contested under certain circumstances, such as if there is a belief that the Will is invalid due to improper execution, lack of mental capacity of the deceased when the Will was made, or undue influence. Disputes may also arise if there are concerns over the Executor's performance.

Contesting probate requires legal action, starting with a caveat to prevent the Grant of Probate from being issued until the dispute is resolved. This process can be lengthy and costly, often requiring specialist legal advice to navigate. Potential challengers need to consider the impact on family relationships and the financial cost of litigation.

Do you need advice or help with probate?

Premier Solicitors is a leading UK law firm staffed by lawyers devoted to providing a professional and affordable legal service on a comprehensive range of legal services such as Probate and Estate Administration. For more information, please call us on 01234 358 080 or visit our contact page to send an enquiry form.

Sapphire Hudson - Paralegal, Premier Solicitors

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