What is Probate?

by Kidd Rapinet on October 5, 2018
Shamit Rooproy

We often find, when advising clients who have to deal with an estate, that there is much confusion as to what “Probate” means and what the process involves.  This article outlines the process and how you can prepare for the initial steps.  The questions addressed are ones our clients most often ask.

Probate begins when a person dies.  It is the process that starts with figuring out what assets and liabilities they had at the time of death (their “estate”) and ends with distributing their assets in accordance with the terms of their Will or, if they died without a Will, under the intestacy rules.

“Probate” is also the term used to refer to the court document that you need in order to sell or transfer the assets: the Grant of Probate (when there is a Will) or Grant of Letters of Administration (when someone dies without a Will).

Do I need Probate?

In the vast majority of cases, you will need to go through the Probate process so you can deal with  a person’s estate.

I am an Executor and Trustee under the Will.  What does this mean, and what happens if I do not know about all the deceased person’s liabilities?

An Executor/Trustee is the person appointed to ensure that all assets and liabilities have been accounted for, and that the estate is distributed in accordance with the deceased person’s Will.

An Executor/Trustee may be unsure what liabilities were in the deceased’s name at the time of their death.  If so, they should put a statutory notice in the local paper and the London Gazette, inviting any unknown creditors to step forward.

What is the Grant of Probate and how do I get hold of it?

The Grant of Probate is a document issued by the court which enables the Executors/Trustees appointed under a Will to sell or transfer the deceased person’s assets in accordance with the Will.  In order to obtain the Grant of Probate, you need to complete an Oath and the necessary HMRC (tax) papers. If there is Inheritance Tax to pay, then this process will take longer.

What if there is no Will?

The process is essentially the same but, instead of obtaining a “Grant of Probate”, you obtain a “Grant of Letters of Administration”.  The law sets out who is able to obtain the Letters of Administration and who benefits from the estate.  Instead of being known as an Executor/Trustee, the person appointed to deal with the estate is known as an “Administrator”.

What happens when I get the Grant?

Once you have the Grant (either under a Will or where there is no Will), the Trustees/Administrators can start selling or transferring the assets in the estate in accordance with the Will or under the intestacy rules (if there is no Will).

It is often thought that an Executor has to wait until they have the Grant of Probate before they can put the deceased’s home up for sale. This is not the case.  It is the Will that authorises the Executor to deal with the home, and they can start marketing it before Probate is granted. However, if you are an Administrator, you have to wait until you have the Grant before you can put the home on the market.

Practical advice

  1. When selling or transferring the deceased’s assets (for example, when withdrawing funds from the deceased’s bank account) you will need to produce a certified copy of the death certificate.  Ensure that you obtain a sufficient number of certified copy death certificates, so you can send them to different banks and other institutions at the same time. If you do not have enough copies, you have to wait for one institution to return the death certificate before you can send it to the next, which delays matters.
  2. When registering a death, use the government’s “Tell Us Once Service”. You give details of the person’s death just once, and the service then informs all the necessary government departments about the death;
  3. The banks/building societies will freeze accounts in the sole name of the deceased as soon as they are informed of the death and receive the certified copy death certificate. However, providing there are sufficient funds in the accounts, money can be released for funeral costs and inheritance tax purposes (if applicable) before the Grant of Probate / Letters of Administration; and
  4. When dealing with the estate of a loved one, it is important to take the time you need, as it can be a very emotional set of circumstances. We advise that you start the process of “Probate” as soon as you wish, though bear in mind that there may be deadlines to meet for filing a tax return.

We hope you find this helpful.  Should you need more information or advice, then please do call one of our private client team on 01628 621301.