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What is Probate? A simple guide to how it works

What is Probate? A simple guide to how it works

Probate is the name given to the process of administering someone’s estate when they die. Being granted probate means the estate can be divided between the beneficiaries, in line with the deceased wishes.

One of the key elements to ensuring a smooth probate process is to make sure your personal affairs are in order before your death. This means sorting out finances and making it clear to family/executors what your individual estate will include – bank accounts, savings, investments, property etc. Making sure you have an up-to-date Will is very important. 

Our easy to follow guide will explain the process and practicalities of obtaining a grant of probate when someone dies.

What is Probate?

Probate is used to describe both the Grant of Probate and the process involved in obtaining it. Being granted probate is being granted permission to settle someones’ estate, as per the instructions outlined in their Will. When a valid Will has not been left behind, probate allows someone to distribute the estate in line with the rules of intestacy. 

Do I need probate?

There are circumstances where a Grant of Probate is not needed. When the value of the estate is less than £5,000 and only includes cash funds held in deposit accounts you do not usually need to obtain a Grant of Probate to access the money. This is because estates of this size are deemed to be ‘Small Estates’. 

However, where the estate includes certain assets – like land or shares – you will always need to obtain a grant. 

Who 'does' probate?

Probate is carried out by the person/people sorting out the affairs of someone who has died. If a valid Will is in place, this will be the Executors of the Will. A grant of probate allows you to access the deceased’s bank accounts, investments and other assets in order to pay their debts, inheritance tax and distribute their estate to named beneficiaries. You cannot do this without a grant of probate. 

Where there is no Will, it is referred to as dying ‘intestate.’ There are statutory rules of intestacy which family need follow, in order to administer the estate. See further down the page for more information on intestacy. 

You can apply for probate yourself, or work with a solicitor or a qualified probate practitioner. Employing a professional may be advisable if the estate is large and/or complex.

Up to four people can obtain a Grant of Probate and do so by applying to the local Probate Registry, which is a part of the court system. Once the grant is issued, it’s proof that the named executors or administrators are the people entitled to deal with the deceased’s assets.

Types of probate

There are 2 two types of grant that you can apply for. Which type of grant you apply for depends wether the deceased has left a valid Will or not. The process for applying for probate is essentially the same for both options.

Grant of Probate

When there is a valid Will, you would apply for a Grant of Probate, and it is granted in favour of one or all of the executors named in that Will.

Grant of Letters of Administration

Letters of Administration are granted when there is no Will or the Will is invalid. However, most people still refer to it as ‘probate’ because, for all practical purposes, the two types of grant are identical. However, there are some differences in the process before the grant is issued.

The Probate Process

There are several stages in the process of applying for probate, and it can take up to three months. Some people choose to employ a probate solicitor in order to help them, but this is not essential if the estate is fairly simple. 

The 5 key stages in the probate process are: 

  • Register the death
  • Investigate the value of the estate
  • Organise inheritance tax
  • Submit probate application forms
  • Pay probate application fees

Once probate has been granted, you can start to settle the estate. This includes closing accounts, and distributing gifts from in line with the intentions of the Will. 

Rules of Intestacy

When a person dies without leaving a Will, or the Will they left is invalid, their property (the estate) must be shared out according to certain rules. These are called the Rules of Intestacy. Only married or civil partners and some other close relatives can inherit under the Rules of Intestacy.

You can find out everything you need to know from our complete guide to the Rules of Intestacy.

Frequently Asked Questions about Probate

Q.

How much does probate cost?

A.

How much the probate process costs depends on if you are paying a probate solicitor for their support. If you are doing probate yourself, it costs £215 to apply.

If the estate is valued at less than £5,000, the application is free - but as this is usually deemed a Small Estate you do not necessarily need to go through the probate process.

Q.

How long does the probate process take?

A.

The probate process takes between 1 and 3 months from when you submit your application.

Due to the Coronavirus pandemic, the probate process is currently taking longer.

Q.

Are there legal consequences if I make mistakes as the Executor?

A.

Yes, there can be legal and financial consequences for an Executor who makes errors, even if they are accidental.

Q.

Do I need a grant of Probate in order to sell my relative's property?

A.

If the property is registered solely with your relative and you are an Executor, then you will need a grant of probate to sell the property. If there is no Will, it will depend on your relationship to the deceased and you will need to follow the Rules of Intestacy.

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