Losing a loved one is an emotionally challenging time, often compounded by the complexities of administering their estate.
Applying for probate is only one part of dealing with someone's estate. Before you apply, you will usually need to identify and value the assets and debts, establish the Inheritance Tax position and make sure the right person is making the application.
You can apply for probate yourself, and for a straightforward estate this may be perfectly reasonable. However, executors are personally responsible for administering the estate correctly, and probate can become more complicated where there is property, Inheritance Tax, lifetime gifts, trusts, business interests, unusual assets or disagreements between those involved.
Our probate solicitors can deal with the entire estate administration or help you with particular stages or problems where you need legal advice.
What is probate?
Probate is commonly used to describe the legal and administrative process of dealing with (including distribution to beneficiaries) the property, money and other assets of someone who has died and also paying any outstanding debts.
Where there is a Will, the executors may need to apply for a Grant of Probate. This gives them the formal authority needed to deal with assets which require a Grant.
Where someone dies without a Will, an entitled person may instead apply for Letters of Administration and become the administrator of the estate.
The wider administration of an estate can involve:
identifying assets, liabilities and sometimes beneficiaries;
valuing property, investments and other assets;
establishing the Inheritance Tax position;
applying for the Grant;
collecting money and selling or transferring assets;
settling debts and tax;
dealing with beneficiaries;
preparing estate accounts; and
distributing the estate.
Obtaining the Grant therefore does not usually mean that the administration of the estate is complete.
Do I need a solicitor to apply for probate?
No. Executors can apply for probate themselves and many straightforward applications are dealt with without a solicitor.
The more useful question is often whether you are comfortable taking responsibility for the particular estate you are dealing with.
Legal advice may be particularly worthwhile where:
the estate is substantial or complicated;
Inheritance Tax may be payable;
there were significant lifetime gifts;
the estate includes trusts;
there is a business or shares in a private company;
assets are difficult to identify or value;
there are overseas assets;
the Will is unclear;
the original Will cannot be found;
executors disagree;
beneficiaries are raising concerns;
someone may make a claim against the estate; or
you are uncertain about your responsibilities as executor.
You also do not necessarily have to choose between doing everything yourself and asking solicitors to administer the entire estate. We can advise on a particular issue, deal with the tax and probate application, or take responsibility for the complete administration.
Applying for probate – the main steps
Although every estate is different, the process will commonly involve the following.
1. Find the Will and establish who should act - If there is a Will, the original should be located and checked to establish who has been appointed as executor. There may be several executors. An executor who does not want to act may have different options depending upon the circumstances, including reserving power or formally renouncing their appointment. If there is no Will, the intestacy rules determine who is entitled to administer and inherit the estate.
2. Establish whether a Grant is actually required - Not every estate requires a Grant of Probate or Letters of Administration. For example, some jointly owned assets pass automatically to the surviving owner. Banks and other financial institutions also have their own requirements about when they will release funds without a Grant. There is not one universal estate value threshold below which probate is automatically unnecessary. The assets, how they were owned and the requirements of the organisations holding them need to be considered.
3. Identify and value the estate - Before applying for probate, the executors or administrators need to establish the assets and liabilities of the person who died. These might include:
property;
bank and building society accounts;
investments;
pensions and life policies;
shares;
business interests;
vehicles and valuable possessions;
overseas assets; and
money owed to the deceased.
Debts and liabilities also need to be identified. Appropriate valuations may be required, particularly for property, businesses, shares or unusual assets.
4. Establish the Inheritance Tax position - The estate must be valued for Inheritance Tax purposes before the probate application is made. Depending upon the circumstances, full details of the estate may need to be reported to HM Revenue & Customs using an IHT400. Where Inheritance Tax is payable, some tax will normally need to be paid before the Grant can be obtained. This can create a practical problem where much of the estate's value is tied up in property or other assets which cannot immediately be sold. There may be different options for funding or paying the tax depending upon the estate.
5. Apply for the Grant - Once the necessary preliminary work and tax requirements have been dealt with, the application can be submitted to the Probate Registry. Where there is a Will this will usually be an application for a Grant of Probate. Where there is no Will, the appropriate person will generally apply for Letters of Administration. The Probate Registry may raise further questions or request additional information before issuing the Grant.
6. Collect or sell the assets - Once the Grant has been issued, executors can use it to obtain control of assets requiring probate. Bank accounts may be closed, investments sold or transferred and property dealt with in accordance with the Will or intestacy rules.
7. Pay liabilities and deal with tax - Before making final distributions, executors need to ensure that debts, administration expenses and relevant taxes have been dealt with. Depending upon the estate, this may include further Inheritance Tax, Income Tax or Capital Gains Tax issues arising during the administration period.
8. Prepare estate accounts and distribute the estate - The executors should keep appropriate records and prepare estate accounts showing the assets received, liabilities and expenses paid and distributions to beneficiaries. Once it is appropriate to do so, the remaining estate can be distributed in accordance with the Will or intestacy rules.
How long does probate take?
The Grant itself and the complete administration of an estate are two different things.
The Probate Registry indicates that a Grant will usually be issued within around 12 weeks of an application being submitted, although it can take longer if further information is required.
The complete administration of an estate frequently takes considerably longer.
Timing can be affected by:
obtaining asset information and valuations;
Inheritance Tax;
selling property;
trusts or business interests;
missing or overseas beneficiaries;
Probate Registry queries;
tax matters during the administration; and
disputes or potential claims against the estate.
Executors also need to be sufficiently confident that liabilities and potential claims have been addressed before making final distributions.
What are an executor's responsibilities?
Being named as an executor is more than an administrative role.
Executors are responsible for dealing with the estate properly and can potentially be personally liable if assets are incorrectly distributed, tax or debts are not dealt with or they otherwise breach their duties.
Their responsibilities include safeguarding estate assets, keeping appropriate records, dealing properly with beneficiaries, avoiding conflicts of interest and administering the estate in accordance with the Will and applicable law.
This does not mean that executors have to undertake every task personally. Obtaining professional advice and assistance can form part of administering an estate responsibly.
What happens if there is no Will?
Where someone dies without a valid Will, they are described as dying intestate.
Instead of executors applying for a Grant of Probate, the person or people entitled to administer the estate can apply for Letters of Administration.
A surviving spouse or civil partner will normally have priority, followed by other relatives according to the statutory order of entitlement.
The intestacy rules also determine who inherits the estate. This can produce a different result from what the deceased or family might have expected, particularly for unmarried partners and more complicated family arrangements.
The responsibilities of an administrator are broadly similar to those of an executor.
Probate where a property is the main asset
Property is often the most valuable asset in an estate and can create some of the most important practical decisions for executors.
Issues can include:
establishing an appropriate probate value;
checking how the property was legally owned;
dealing with an existing mortgage;
deciding whether the property should be sold or transferred to a beneficiary;
insuring and maintaining an empty property;
dealing with someone continuing to occupy the property;
considering Inheritance Tax and Capital Gains Tax implications; and
coordinating the probate administration with the eventual conveyancing.
Where property is being transferred or sold, our probate and conveyancing teams can work together rather than requiring the executors to coordinate different firms.
Can executors or administrators pay for legal advice from the estate?
Generally speaking the answer is yes, under English law, an executor can generally pay for reasonable legal fees incurred in administering the estate from the estate itself. In some situations, obtaining legal advice is very important such as a multi-jurisdictional estate, where the estate is very large, where the will sets up a trust.
The starting point is to check whether there is a charging clause in the will specifically authorising use of and payment for legal and/or other professional fees.
If there is no charging clause, use of lawyers or others will usually be an allowable expense.
To avoid potential conflict, it is advisable, if significant fees are anticipated, to seek approval from beneficiaries in advance to avoid disputes. Fees incurred should be :-
With prior agreement of any co-executors – if more than 1 executor is appointed, they all should agree on the payment of professional fees.
Reasonable and properly incurred - the fees must be deemed reasonable and incurred in good faith for the benefit of the estate.
With no possible conflict of interest - the executor must avoid personal gain or conflict of interest in incurring the fees.
Documented - the executor should maintain clear records of all legal expenses and their justification.
Common probate problems we help with
Probate applications are not always straightforward. We regularly advise where there are issues such as:
uncertainty about whether probate is required;
difficulty finding the original Will;
uncertainty about which Will is valid;
an executor who cannot or does not want to act;
disagreement between executors;
difficulty identifying or valuing assets;
significant gifts made before death;
jointly owned assets;
trusts created during lifetime or under the Will;
business interests or private company shares;
overseas assets;
difficulty identifying or locating beneficiaries;
insufficient cash to pay Inheritance Tax;
queries or requisitions from the Probate Registry;
uncertainty about selling or transferring property;
claims or threatened claims against the estate; and
concerns about when it is safe to distribute money to beneficiaries.
Where a dispute does arise, we also have a specialist Wills, Trusts and Probate Disputes team which can advise separately on contentious issues.
Can I deal with some of the probate myself?
Yes.
For some clients, full estate administration is the right option. Others are comfortable undertaking much of the administrative work themselves but want professional help with the areas carrying greater legal or tax risk.
Depending upon what you need, we can:
advise on a particular probate problem;
review a Will and advise on the executors' responsibilities;
advise on estate and Inheritance Tax issues;
prepare and submit the probate application;
deal with Probate Registry queries;
obtain the Grant and leave you to administer the remaining estate;
advise during the administration where problems arise; or
deal with the complete estate administration for you.
This allows the level of legal involvement, and therefore the legal cost, to reflect the complexity of the estate and the amount of help you actually require.
How we can help with probate
Our probate solicitors can take responsibility for the practical and legal work involved rather than simply completing the application for the Grant.
Depending upon the estate, we can:
establish what needs to be done and whether a Grant is required;
review the Will and identify who should act;
help identify and value estate assets and liabilities;
deal with the Inheritance Tax position and relevant HMRC requirements;
prepare and submit the probate application;
respond to Probate Registry queries;
advise executors on their duties and potential personal liability;
collect and deal with estate assets;
coordinate the sale or transfer of property;
deal with trusts or business interests forming part of the estate;
communicate with beneficiaries;
advise where an executor or beneficiary problem develops;
prepare estate accounts; and
distribute the estate when it is appropriate to do so.
At the outset, we can discuss which parts you can reasonably deal with yourself, which parts you would like us to handle and the likely legal costs.
Why choose us for probate?
Our experienced Private Client team deals with probate and estate administration across England and Wales, from relatively straightforward estates to estates involving significant property, Inheritance Tax, trusts, business interests and more complicated family circumstances.
A particular advantage of using Taylor Rose is the breadth of expertise available within the firm. Our probate lawyers can work with colleagues specialising in conveyancing and property, tax-related issues and contentious trusts and probate where an estate requires wider expertise.
This can be especially useful where an estate includes property that needs to be sold or transferred, a trust, business interests or a disagreement between executors or beneficiaries.
You can also choose the level of help you need. We can advise on a specific issue, deal with the Grant or take responsibility for the entire estate administration.
Our aim is to make clear from the beginning what needs to be done, what you can do yourself if you wish and where professional advice is likely to add value or reduce risk.
