What is Probate?

Probate may be required for things such as selling property which is owned as ‘tenants in common’ and closing bank accounts in the deceased’s sole name. It’s always recommended to check what, if anything, requires Probate before applying.

Who can apply?

Where there is a valid Will, as referred to above, the executor(s) named have the right to apply. If, at the time of applying for Probate, the executor(s) have died and there is no replacement, then a named beneficiary of the residuary estate can apply to become a personal representative.

If the deceased dies intestate, leaving no valid Will, then the rules of intestacy apply, and the closest living relative has the ability to apply. This can include spouse, issue (children), parents, etc.

But what happens if I don’t want to have the responsibility? If you decide you do not want to take on the role as an executor or personal representative, then you can:-

–        File a PA15 to give up your right to apply (known as renunciation);

–        File a PA11 to give someone the authority to apply on your behalf; or

–        File a PA14 if you are unable to act due to a medical condition or impairment.

What are the stages when applying for Probate?

Once the death has been registered, the following stages are required to apply for Probate:-

Stage 1: Calculating the estate value

As of the 1st January 2022, the rules for filing Inheritance Tax changed. If the individual dies after this date, domiciled in England and Wales with an “excepted estate”, you are no longer required to file an Inheritance Tax Form with HMRC.

If there is tax due, an IHT400 Form should be completed, and the tax should be paid within six months of the date of death (with some exceptions) and the IHT 400 filed no later than 12 months.

If an IHT400 and IHT421 are filed with HMRC, then you must wait 20 working days before you can apply for Probate.

Stage 2: Applying for Probate

At this stage, it is vital to complete the correct form depending on whether there is a valid Will or not.

If you are applying by post and there is a will, then the Form PA1P needs to be completed. If you choose to apply online, then a Legal Statement is drafted using the HMCTS portal. Both forms set out the terms of the Will and include information such as the deceased’s net and gross estate figures (i.e. assets minus debts).

The application is required to be signed by all acting executors or personal representatives. This is then sent with the original will to the Probate Registry. A Grant of Probate can take up to 16 weeks to issue.

On the other hand, if there is no will then the Form PA1A needs to be mandatorily completed and, again, signed by all acting personal representatives. A Letter of Administration can take up to six months to be processed and returned.

Do I need a solicitor to obtain a Grant of Probate?

Many lay individuals, specifically the executors and personal representatives of the deceased, are able to obtain Probate themselves by following the steps on the GOV.UK site. However, you may consider instructing a solicitor to obtain Probate if the estate is complex and/or over the inheritance tax threshold or the Will is unclear.

Frequently Asked Questions

What is probate, and why is it needed?

Probate is the legal document that gives someone the authority to manage and distribute a deceased person’s estate. It may be required to access bank accounts, sell property, or transfer assets.

Do I always need probate?

Not always. Probate is typically required when assets are held solely in the deceased’s name (such as property or large bank accounts), but it may not be required for smaller estates or jointly owned assets.

What is the difference between Probate and Letters of Administration?

A Grant of Probate is issued when there is a valid Will and executors are named. Letters of Administration are issued when there is no Will, and a personal representative must be appointed.

Who can apply for Probate?

If there is a Will, the executor named can apply. If there is no Will, the closest living relative, such as a spouse or child, can apply under the rules of intestacy, which set out who is entitled to apply.

How long does the process take?

Processing times vary, but it can take around 16 weeks for a Grant of Probate and up to six months for Letters of Administration, depending on the complexity of the application.

Examples

Example A

Probate with a valid Will

John passes away, leaving a valid Will naming his daughter as executor. His estate includes a house in his sole name and several bank accounts. His daughter applies for a Grant of Probate, allowing her to sell the property, close the accounts, and distribute the estate according to the Will.

Example B

Estate with Inheritance Tax to pay

Linda’s estate exceeds the inheritance tax threshold. Her executor must calculate the tax due, submit the relevant forms, and ensure payment of the tax is made before applying for probate.