Obtaining Probate

 
 
 

 

When someone dies, someone will have to administer their estate. If the deceased made a Will then they will have appointed Executors for that purpose.

If a solicitor or trust corporation has been appointed to act, then they will look after most of this. You should read the page detailing the services available from The Society of Will Writers Trust Company in respect of their probate services.

But what do people dealing with the estate have to do? Firstly, they will have to obtain a Grant of Representation Ė so, what is a Grant of Representation?

When a person dies somebody has to deal with their estate by collecting in all the money, perhaps selling the property, paying any debts and distributing what is left to those people entitled to it. Probate is the courtís authority, given to a person or persons to administer a deceased personís estate and the document issued by the Probate Service is called a Grant of Representation. This document is usually required by the asset holders as proof to show the correct person or persons have the Probate Serviceís authority to administer a deceased personís estate.

Why is a Grant Of Representation needed?

To protect the interests of the estate and beneficiaries. Before releasing money or other assets owned by the deceased, those holding the assets (such as banks) need to know that they are dealing with someone who has the legal authority to deal with the deceasedís affairs. The grant of representation provides that assurance. To confirm that the will made by the person who has died is valid (however, though very few cases arise, the validity of a will remains open to challenge after probate has been granted).

A Grant isnít needed in all cases. It may not be necessary to obtain a grant where a home is held in joint names and is passing by survivorship to the other joint owner.

Where a joint bank or building society account is held, production of a death certificate may be sufficient for the monies to be transferred to the joint holder. Certain institutions may release monies without a grant being produced if the amount held by the deceased was small. Apply to the institutions to see if they will release monies without a grant.

What if there is no Will?

If there is no will then there are no executors and therefore there can be no grant of probate as executors are only appointed by a will. In this case the court will grant Ďletters of administrationí to an interested party who is almost always a relative with a potential beneficial interest. This is done by completing form PA1 (available from HM Courts and Tribunals Service). That person will then carry out very similar duties to an executor and will collect and distribute the estate in accordance with statute which sets down a list of those relatives and their priority who may inherit from a deceased person who dies having not made a will (intestate). If there are no relatives who satisfy the requirements of the statute then the assets are forfeited and are claimed by the State.

The probate process - at a glance

Here is an overview of the steps to take in England and Wales. Procedures in Scotland are different. The points are expanded on below.

1) Value the estate and speak to the deceased's banks and other financial organisations to establish whether you need a grant of representation.

2) If you do need a grant of representation, complete the relevant application and Inheritance Tax form (available from the HM Revenue & Customs (HMRC) website) - the Inheritance Tax form will vary depending on whether or not the estate owes Inheritance Tax.

3) Send the forms to the relevant government bodies (in England and Wales, that's the Probate Registry and HM Revenue & Customs (HMRC)).

4) Pay whatever Inheritance Tax is due.

5) Attend in person at a Probate venue or at the office of any commissioner for oaths (usually a solicitor's office) to swear an oath.

6) Wait for the grant of representation (or confirmation) to arrive in the post - banks and other organisations will ask to see this before they allow access to the deceased's assets.

7) Pay any debts owed by the estate and then distribute the estate.

 

Step 1 - Value the estate to see if you need a grant of representation

A grant may not be needed if the estate:

  • is a low-value estate - generally worth less than £5,000 (though this figure can vary) - and doesn't include land, property or shares

  • passes to the surviving spouse/civil partner because it was held in joint names

When you contact the deceased's bank or other financial institutions, they will either release the funds or tell you to get a grant of representation (or confirmation) first. Some banks and financial institutions may insist on a grant before giving you access to even a small amount of money.

You will almost certainly need a grant if the estate includes:

  • assets generally worth more than £5,000 in total (though again this figure varies)

  • land or property in the sole name of the deceased, or held as 'tenants in common' with someone else

  • stocks or shares

Step 2 - Applying for a grant of representation

You'll have to fill in an Inheritance Tax form in addition to the PA1 Probate Application form, even if the estate doesnít owe Inheritance Tax. The estate will only owe Inheritance Tax if it's over the threshold.

The Inheritance Tax forms you need depend on the following:

  • the size of the estate

  • whether it is an 'excepted estate' (i.e. you don't need to fill in a full Inheritance Tax account - form IHT400)

  • Usually, if an estate has no Inheritance Tax to pay, it will be an excepted estate. However, this is not always the case. Some estates that don't owe Inheritance Tax still require a full Inheritance Tax account.

  • If youíre not sure whether the estate is an excepted estate, youíll need to start filling in a Return of Estate Information form (form IHT205 in England and Wales). Depending on your answers to certain questions, the form will make clear when you should stop filling in that form and switch to form IHT400 (a full Inheritance Tax account) instead.

Step 3 - Send the forms to the relevant government bodies

Send completed IHT205 forms and the PA1 Probate Application form to your nearest Probate Registry. You'll also have to include the original will (if there is one), the death certificate, and the probate fee. If you've filled in form IHT400, follow the instructions on page 55 of the IHT400 guidance notes.
 

Step 4 - Pay any Inheritance Tax due

If the estate owes Inheritance Tax, you won't receive the grant of representation (or confirmation) unless you pay some or all of the Inheritance Tax first. The 'due date' is six months after the date of death.

 

Steps 5 to 7 - What happens next?

Once you've paid any Inheritance Tax and sent off the forms to the Probate Registry, the process takes about eight weeks if there are no problems. There are three stages:

  • examination of forms and documents - Probate Registry staff check the forms and documents and prepare the papers for your interview if you are attending a probate venue or they will send you the oath to take with you to a commissioner for oaths

  • swear the oath - all the personal representatives who have applied for a grant of representation will need to swear an oath, either at a Probate venue or at the office of any commissioner for oaths (usually a solicitorís office)

  • probate is granted - the grant of representation is sent to you by post from the Probate Registry

After you get the grant of representation (or confirmation) and have paid any Inheritance Tax due, you can collect in the money from the estate. You can then pay any debts owed by the estate and distribute the estate according to the will or the rules of intestacy.

 

 

   

 

Align Wills and Trusts Ltd.
enquiries@alignwillsandtrusts.co.uk
Telephone 01603 869988
Align House, 11 Hazel Close, Taverham
Norwich, Norfolk, NR8 6YE

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