Probate: what is it and how does it work?

We reveal everything you need to know about probate, including what it is and how the process works.

Probate is the process of sorting out someone’s money, property and possessions once they have died.

The person who deals with the estate, money, property or possessions when someone dies is called the executor or administrator.

In order to carry out this process, the executor or administrator usually needs to apply for the legal right to deal with the estate.

They may need legal authority via a grant of representation, letters of administration or letters of administration with will annexed, but this is more commonly known as probate.

A grant of representation is only issued to the executors named in the will, while letters of administration are given to the next of kin of someone who died without a will.

If there is an issue with the appointment of the executors in the will, you may need a grant of letters of administration with will annexed.

In Scotland, the probate process is known as confirmation and in Northern Ireland it is referred to as grant of probate.

Once probate has been granted, the process of distributing the deceased’s estate according to their wishes can start.

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The process of obtaining probate

You can either apply for probate yourself or appoint a solicitor or probate specialist to do it for you.

If there is a will with named executors, then the executor can apply for a grant of representation. But if there isn’t a will, or no executors have been named in it, then an administrator needs to be appointed to deal with the estate.

This could be the deceased’s spouse (even if they were separated), civil partner or child. You can’t apply to be an administrator if you were the partner of the deceased, but not married or in a civil partnership.

An administrator would need to apply for letters of administration to allow them to deal with the estate, before applying for probate.

Assessing the value of the estate

As the executor or administrator of the will, before applying for probate you will need to assess the total value of the estate.

This is vital as you need to determine whether or not it exceeds the Inheritance Tax threshold of £325,000. If it exceeds this amount, Inheritance Tax needs to be paid.

Once the estate has been valued, an Inheritance Tax form will need to be completed, even if you don’t think that anything needs to be paid.

If you’re in Scotland and applying for confirmation, you’ll need to complete a C1 form.

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Last will and testament. (Image: Shutterstock)

Applying for probate

The Inheritance Tax form should be sent along with your probate application form (if there’s a will) or this one (if there’s no will) to your local probate registry.

You can also apply for probate online if you’re the executor or administrator.

But you’ll need to have the original will if you’re the executor, the original death certificate or interim one from the coroner and must have already reported the estate’s value.

The following documents should be submitted with the probate application and Inheritance Tax forms:

  • an official copy of the death certificate or an interim one from the coroner;
  • the original will and two extra copies, as well as any additions or amendments;
  • a cheque for £215 payable to HM Courts and Tribunals Services to cover the cost of the application. The fee is waived for estates valued at less than £5,000.

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The oath

Once the probate application has been processed, you’ll have to either swear an oath at a probate registry or complete a statement of truth online.

Prior to a recent rule change, you had to swear an oath at a probate registry to confirm all the details you have given about the estate are accurate to the best of your knowledge.

Once you’ve confirmed everything is accurate and sworn an oath (either online or in person), you should receive the grant of representation within a few weeks.

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What happens next?

As the executor or administrator of the will, you will be responsible for securing all the deceased’s assets. A copy of the grant should be sent to any organisation holding assets such as the deceased’s bank or building society.

They will then release any assets which are then paid into an executor account (an account set up to collect and hold assets before they are distributed).

Once any debts, tax and outstanding bills have been paid, the estate can then be distributed according the instructions of the will, or by the law if there is no will.

The estate’s accounts can then be prepared and submitted, including details of any income received from the estate since the date of the deceased’s death.

A trust and estate tax return will need to be filed to ensure all taxes have been paid.

When you don’t need probate

There are some instances when you don’t need a grant of representation such as when the estate passes to a surviving spouse or civil partner, and the assets were held in joint names.

You also may not need probate if the estate doesn’t include land, property or shares.

But this is not always the case, so you would need to contact individual banks or building societies to find out what their rules are when someone dies.

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