If you have to deal with somebody’s money, property and assets when they die (their estate), you must apply for the legal right to do so.
Getting probate involves obtaining a grant of representation. You can apply for a grant of representation if:
- You’re a named executor in the deceased’s will
- You’re the person who will receive the deceased’s estate (or what’s left in the estate once all other legacies have been distributed), and there’s no executor named in the will. If there’s no executor – or if the executor or executors are unable or unwilling to apply for the grant – the legal right isn’t called probate, but letters of administration. If you receive letters of administration, you’re called an administrator rather than an executor
- You’re the deceased’s spouse, child, parent, brother, sister, grandparent, uncle or aunt (or niece or nephew if there are no living uncles or aunts) if there is no will. Again, the grant isn’t for probate but letters of administration
Getting probate or letters of administration means you can access the deceased’s bank and other financial accounts and collect their assets – including the proceeds from the sale of the deceased’s property. You’ll also have to make sure any inheritance tax that’s due is paid, as well as pay off any remaining debts, then distribute what remains of the estate to those who are entitled to it (the beneficiaries).
There are some circumstances when you don’t need probate, such as when couples have joint bank accounts and jointly-owned property (or a joint mortgage or tenancy). In these cases, the surviving partner automatically inherits the deceased’s share.
If the deceased’s assets don’t include land, property or shares, and are worth a relatively small amount of money, they too may be released without probate. In these cases you should apply directly to the organisation holding the money – such as a bank, building society or insurance company. But bear in mind that assets are released at each individual organisation’s discretion, and that you may still have to apply for probate.
How to apply for probate
You can appoint a solicitor to deal with probate, which may be a good idea if dealing with the estate is going to be complicated – for example, the terms of the will are not clear, or the deceased owned a business or bought land or property abroad.
Otherwise, it’s a relatively straightforward procedure and many executors and administrators deal with people’s estates without a solicitor. Usually the procedure for applying for probate takes around 3 to 5 weeks. In more complicated cases it can take longer.
You can download the probate application form from gov.uk (in Scotland, you’ll need a form to apply for confirmation). If you need help with filling the form in, call the Probate and Inheritance Tax helpline on 0300 123 1072.
Once completed, send your forms to your local probate registry (visit gov.uk to find your nearest office). Other things you’ll need to send with it include a completed inheritance tax form (see below), an official copy of the death certificate, the original will and three copies, and the relevant application fee.
Swearing an oath
Before a grant of representation is assigned, you’ll be invited to your local probate registry for an interview, where you’ll swear an oath. If you can’t get to a probate registry, you may be able to swear the oath at a solicitor’s office that offers a commissioner for oaths service – though you may have to pay a fee to do so.
A will can name up to 4 executors, and if more than one of the executors applies for a grant of representation, they each have to be named in the application form and attend the interview to swear the oath. But if you’re a named executor and you don’t want to act as one, you can refuse to act (called renouncing probate) or appoint someone else to act for you, such as a solicitor.
You can also reserve your right to apply for probate in the future – this is called power reserved, and may be useful if 2 or more executors live in different parts of the country (or if it’s simply more convenient for one to act and not the other/s.)
Paying inheritance tax
Depending on the value of the estate, as an executor you may have to pay any inheritance tax that’s due. To work out how much the estate is worth, you have to find out the value of all assets and gifts, add them up then deduct the amount of any debts that are remaining, such as utility bills (if the estate is a complicated one, it may be a good idea to get legal help with the valuation).
Currently you don’t have to pay inheritance tax if an estate is worth less than £325,000 – though this amount is subject to change by the government. But even if the estate is valued at below the inheritance tax threshold, you still have to fill in the relevant inheritance tax forms and send them off when you apply for a grant of representation.
For more details about inheritance tax and to download the appropriate forms, visit gov.uk.
After the grant has been issued
Once you receive probate or letters of administration, you need to send a copy to the organisations that are holding the deceased’s assets so that they can arrange to release everything into an executor bank account, which you can open once you have a grant of administration. From this account you can distribute the assets to the beneficiaries after any debts and taxes payable have been settled.
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