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What is Probate?
Probate is a term commonly used to describe the process of dealing with the affairs of someone who has died.
That person’s estate (money, property and possessions) will need to be collected in, then debts (and any Inheritance Tax) paid and finally the remainder will be distributed to those people entitled. In order to obtain the authority to carry out this work, it is usually necessary to apply for a legal document called a Grant of Representation.
One of three types of Grant of Representation will be issued, dependent upon the circumstances:
- Grant of Probate: issued to one or more Executors named in a valid Will, if there is one.
- Letters of Administration (with Will): issued where there is a Will but either no Executor is named or none can act.
- Letters of Administration: issued when there is no Will, or the Will is invalid.
A Grant of Representation may not be needed where the value of the Estate is comparatively modest or where all assets were held jointly or nominated. If a Grant is necessary whichever Grant is applied for the procedure is the same. This process can either be straightforward or complicated, depending upon the assets in the estate, the provisions of any Will, and family circumstances.
How is a Grant of Representation obtained?
Before a Grant of Representation can be issued, an Inland Revenue Account will generally need to be completed and filed. This must identify all assets and debts of the estate and include valuations as at the date of death. Depending upon the value of the assets and the identity of intended beneficiaries it may also be necessary to pay some of the Inheritance Tax for which the estate is liable before making the application for the Grant of Representation.
After completion of the Inland Revenue Account the Executors or administrators must submit an Oath to one of the Probate Registries of the High Court, which confirms their entitlement to take out the Grant and declares responsibility for the distribution of the estate.
What happens if there is no Will?
In the absence of a Will, a set of provisions (known as the Intestacy Rules) determine who is entitled to receive the assets in the estate.
The Intestacy Rules provide for many different schemes of distribution of assets depending on which relatives survive the deceased. anyone who is responsible for dealing with the estate of someone who has died intestate (without a Will) should seek further advice.
Executor’s / Administrator’s Responsibilities
There is a continuing duty and responsibility on the Executor / Administrator to ensure that the provisions of any Will are carried out and that the beneficiaries under the Will or those entitled under the Intestacy Rules receive their entitlements. There is also an obligation to identify and disclose all information relating to the assets, debts and claims against the estate, to ensure that the estate is handled efficiently and to make sure that all assets, including property, are properly managed during the administration period.
Our specialised team of Probate solicitors provide either a complete service from start to finish or can advise on particular aspects which may include:
- advice for Executors / Administrators on their responsibilities and personal liabilities
- tracing / informing beneficiaries
- obtaining correct information to satisfy H M Revenue & Customs requirements
- agreeing valuations of property with the District Valuer to avoid penalties and finalising the Inheritance Tax position with HM Revenue & Customs
- completion of Inland Revenue Accounts within the prescribed timeframe to avoid unnecessary interest and penalties
- advise and claim relief where possible to mitigate any Inheritance Tax liability
- advise and assist where there is no Will and a person dies Intestate
- Inheritance Tax planning, including Deeds of Variation or Disclaimers to reduce the Inheritance Tax liability or redirect gifts made on a person’s death
- advise on issues such as contentious probate or a contested Will, including the validity of a Will, a claim against an estate by a disappointed beneficiary or any other difficulties arising in the administration of an estate
Where there is a Will and we have been appointed executors, we will deal with the general administration of the estate keeping all parties updated with the progress being made.
Executors / Administrators are fully entitled to obtain legal advice and, if they wish, to instruct solicitors to act for them. The costs are an administration expense and can be paid from the estate.
Our fees will be fair and reasonable having regard to all the circumstances of the case and are usually based solely upon the time spent by the Probate Team on the case. We will always provide a written estimate and in some cases may be able to agree a fixed fee.
See also our Elderly Client Issues fact sheet (PDF).
We offer a free initial no obligation discussion to help you get an idea of the proceedings and decide what cost arrangement is best for you.Full details are on our Payment Options for Non-Court Matters page.