What is probate? Some frequently asked questions for probate matters
- What is Probate?
- Who takes charge if there is no Will?
- Do you always need to get a grant of probate or a grant of letters of administration?
- How do you apply for probate or letters of administration?
- Do all the executors need to apply for probate?
- Will you have to submit an Inland Revenue account for inheritance tax purposes?
- Will you have to pay inheritance tax?
- How long will the administration of the estate take?
Probate is only granted where the deceased left a Will. The grant of probate of the Will is a Court Order that gives the executors of the Will the right to deal with the assets and property of the person who has died. For example, when you show the grant of probate to a bank they know they are dealing with the person who is allowed to handle the estate and they will allow you to close the deceased's account.
If the deceased did not make a Will, their estate will be shared out under the "rules of intestacy". These rules set out who deals with the estate and who benefits from it. There is a strict order of entitlement and we will advise as to who is entitled.
Where there is no Will the Court Order is known as a grant of letters of administration (as opposed to a grant of probate where there is a Will) and the persons appointed by the grant of letters of administration are known as administrators (as opposed to executors where there is a Will). You apply for a grant of letters of administration in the same way as you would apply for probate.
In some cases you do not need to apply for a grant. This is when the person who has died left very little (usually under £5000) or else everything they own was held in joint names with someone whose share automatically passes to them.
The application is made to the Probate Registry and we would normally apply to the Registry in Manchester. The application is in the form of an oath that the executors or administrators (as the case may be) need to "swear" before a Solicitor not from the firm who prepared the oath. This means that you swear on the Bible that the contents of the oath are true, although if you do not wish to use the Bible you may affirm instead. The reason it is done this way is that if you swear the oath knowing the contents are incorrect then it is perjury. Once sworn the oath sent to the Probate Registry along with the original Will which is then retained by the Probate Registry. Once probate has been granted the Will becomes a matter of public record. Unless there has been any objection to the application lodged at the Probate Registry, the application generally takes around 2 weeks.
The Probate Registry will charge a fixed fee of £45 in respect of the application and a further £1 for each additional sealed copy of the Grant, ie if you wanted 5 additional copies then the fee would be £50. Cheques are made payable to "HMCS". The solicitor who attends to swear the oath for executors or administrators will charge a fixed fee of £5 per oath per person and £2 per exhibit, ie if there is an oath and a Will and two executors then the fee will be £14. The fee is payable in cash to the solicitor and both the probate court fee and the swear fee are deductible as expenses of the estate.
If there is inheritance tax payable then the Inland Revenue account for inheritance tax purposes (see below) must be submitted before you can apply for the grant of probate or letters of administration. If there is no inheritance tax payable then an Inland Revenue return is still needed and this must be submitted at the same time as the application for the grant of probate or letters of administration.
No. If an executor wishes to stand down then they can renounce probate and take no further part in the administration. However, they can only renounce probate if they have not intermeddled in the administration of the estate up to that point. If they have taken any part in the administration of the estate then they cannot then stand down.
Alternatively, power can be reserved to an executor. This means that the executor to whom power is reserved does not join in the application for the grant of probate. It does not mean they have renounced their right to be an executor completely, but instead that they have reserved the power to extract a grant in the future if they wished to do so.
If an executor named in the Will has predeceased the testator then their appointment lapses. Where possible please let us have a copy of the death certificate of the executor who has died.
Yes, irrespective of whether or not inheritance tax is actually payable. There may be an exception if the estate is less than £10,000. As referred to above, it must be submitted prior to or, if no tax is payable, at the same time as the application for the grant of probate or letters of administration.
If an Inland Revenue account is required then precise details of all the assets must be obtained including valuations at the date of death.
In calculating inheritance tax the following are taken into consideration:
- All of the assets (less liabilities) which the deceased owned at the date of death. These will include bank accounts, houses, interest in a business, life insurance policies, the contents of any houses/personal belongings, farms etc.
- Assets that the deceased owned abroad, unless they were non-UK domiciled.
- The deceased's share of any jointly owned assets.
- The value of some trust funds in which the deceased was entitled to receive the income.
- The value of any assets which the deceased has given away within 7 years of the date of his death (or longer if they "reserved a benefit" in the asset given away).
If these add up to more than the threshold then inheritance tax is payable at a rate of 40% of the amount over the threshold. The threshold is currently £325,000, but is ordinarily reviewed every year in the Budget.
There are exemptions and reliefs that can reduce the inheritance tax. The most important is that if the deceased left assets to their spouse then there is no inheritance tax to pay in respect of the value of those assets. There are also reliefs in respect of business property and agricultural property that may be relevant. Inheritance tax is complicated and, if applicable, this is something that we will discuss with you further.
It is impossible to give an answer to this question, as it will vary from one estate to another. It will generally depend upon how complicated the estate is and how many assets there are. We can advise you further on this in due course.
For more information and legal advice please contact our specialist probate team:
T: 0844 984 6444
Alternatively please visit the trusts and estates department homepage for further information about probate, Wills and other related services.