Probate Solicitors

A grant of probate is the formal document issued to the executors of a will enabling them to deal with the deceased’s assets. The grant is issued by one of the District Probate Registries in England or by the Principal Registry of the Family Division of the High Court. Find out more here.

It can take just a few weeks, but usually several months at present, to get the grant, depending on how complex the estate assets are and how quickly it is possible to get together all necessary information to complete the inheritance tax (IHT) return which has to be done before the grant can be applied for.

The form is an IHT400 or IHT205 depending on the type and value of the estate. If IHT is payable some of this has to be paid before the grant will be issued but banks and building societies usually release monies from the deceased’s accounts for this purpose.

Our Will and our estate are individual to each of us, so the full probate process can vary depending on the instructions that have been left in the will.

The basic process for an executor will include:

1. Bringing together the full details of the estate’s assets and debts
2. Making the application for a Grant of Probate (this is the formal document giving the authority needed to administer the estate)
3. Completing an inheritance tax return and paying any tax due.
4. Change the order of 2 and 3 above

Inheritance Tax return

The Inheritance Tax (IHT) return when completed is lodged with HMRC where tax is payable and the necessary IHT is sent to HMRC. If no IHT is payable, the tax return IHT205 is sent direct to the chosen probate registry with the statement of truth when it has been signed by the executors or the administrators (collectively known as Personal Representatives or ‘PRs’). The statement of truth has replaced the oath for executors and oath for administrators.

The statement of truth is the document by which the PRs formally apply for the grant of representation and promise to collect in all the deceased’s assets, pay any debts and distribute the estate in accordance with the terms of the will or as required by the Intestacy Rules which apply when someone dies without a valid will.

The grant normally takes a few weeks or so to issue and then it is sent to the banks, building societies etc. and then accounts can be closed, shares transferred or sold and the monies released will be used to pay any outstanding debts of the deceased. The balance can then be paid to the beneficiaries under the terms of the will or in accordance with the Intestacy Rules.

For most estates probate will take around twelve months to complete. Each estate is different and completion will depend on the size and complexity of the estate. International Probate may be more complicated as this involves assets in more than one country and usually takes longer to complete.

Not all estates need to go through the probate process. In general, smaller estates with few assets and straightforward distributions may not need to go through probate. Probate may not be needed if the deceased’s combined assets are worth less than £5,000.

Other reasons why probate may be avoided, include:

1. Designating beneficiaries: Many financial accounts, such as retirement accounts and life insurance policies, allow you to name a beneficiary who will receive the assets in the account upon your death. Designating beneficiaries can be an effective way to avoid probate, as the assets in these accounts will pass directly to the beneficiary without going through the probate process.
2. Setting up a trust: A trust is a legal entity that holds and manages assets for the benefit of another person or entity. By transferring assets to a trust, you can specify how the assets should be managed and distributed after your death without going through probate.
3. Holding assets jointly: If you own assets jointly with another person, such as a joint bank account or joint property, these assets will typically pass directly to the surviving joint owner upon your death without going through probate.

In the UK, if a person dies without a will, they are said to have died “intestate.” When this happens, the intestacy rules set out in the Administration of Estates Act 1925 determine how the deceased person’s assets will be distributed.

Under the intestacy rules, the deceased person’s assets will be distributed to their next of kin in a specific order of priority. The first priority is the spouse or registered civil partner of the deceased. If the deceased had children, the spouse or civil partner will receive the personal possessions of the deceased and the first £270,000 of the estate, as well as half of the remaining balance. The children will receive the other half of the remaining balance.

If the deceased did not have a spouse or civil partner, the entire estate will be distributed to the children. If the deceased had no surviving spouse, civil partner, or children, the estate will be distributed to the deceased’s parents. If the deceased had no surviving parents, the estate will be distributed to siblings or, if there are no surviving siblings, to more distant relatives.

If the deceased had no surviving relatives, the estate will go to the Crown.

It is important to note that the intestacy rules do not provide for other individuals, such as friends or unmarried partners, to inherit. If you want to ensure that your assets are distributed according to your wishes, it is important to create a will.

Read our blog post What happens when someone dies without a will?

The online probate service is available to most named executors in England and Wales. It is currently not available to apply for letters of administration, which is the name of the grant in cases of intestacy. It allows applicants to apply, pay and swear a statement of truth online.

The online probate system is not appropriate for all cases and specifically not for more complex estates, where matters can quickly become difficult to administer and lead to additional legal costs being incurred. Importantly, many members of the public are unaware that they can find themselves personally liable for any mistakes they make. Specific examples of when it will be appropriate to seek professional advice include where:

1. The value of the estate is over the Inheritance Tax threshold;
2. monies are to be held in a trust created by the will;
3. foreign aspects are included;
4. all or part of the residue of an estate is left to charity, or divided between exempt and non-exempt beneficiaries; or
5. there have been significant lifetime gifts.

These sorts of circumstances can create hidden traps for the unwary. Concerns have also been raised over the risk of the system being abused, including exploiting vulnerable people and their assets.