What is probate?
Probate in the UK is legal confirmation given to one or more people whom are going to administer a deceased person’s estate. The document issued by the UK Probate Service is called a ‘grant of representation’; the grant acts as legal verification of the executor or administrator’s authority to deal with the assets belonging to the deceased’s estate.
There are 3 main types of grant of representation:
- Probate – this is issued to the executors of the estate, who are either directly or indirectly named in the will;
- Letters of Administration (with will annexed) – these are issued when there is a will with no named executors. Alternatively, there are named executors who are unable to apply or do not wish to be involved in administrating the estate; and
- Letters of Administration – these are issued when the deceased has not made a valid will and has thus died intestate.
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What is a Testator?
A testator is the person who makes a will. So when documents and articles make reference to the ‘estate of the testator’ or similar, they are talking about the deceased person whose will is in question.
What is a Beneficiary?
This is someone who benefits from the will of the testator. Commonly, this will be family members such as a spouse and children, but it can also include friends and causes such as charities or political parties. A testator can in general terms, choose to leave their estate to whomever they wish.
Why do I have to apply for a grant of probate?
Many organisations will not allow executors or administrators of a UK estate to access the deceased’s assets without legal evidence of their status and ability to do so. This evidence comes in the form of a grant of probate. Once the grant is secured then you should be able to proceed with the full administration of the estate.
Probate in the UK is usually required if the estate satisfies the following conditions:
- The assets of the estate are worth more than £5,000;
- The deceased held land or property as a ‘tenant in common’; (eg if the family home is held in both names tenants in common and in which case it passes by what is known as “survivorship” to the other joint owner(s).
Click here to read more about the difference between joint tenancy and tenancy in common
- There are investments involved such as stocks and shares; and
- The deceased has a certain insurance policy.
How do I apply for a grant of probate?
Locate your closest Probate Office and submit the necessary application forms (PA1 Probate Application Form). These can either be downloaded online here or obtained in paper version from the UK Probate Office.
You should also send the original death certificate and will along with the completed forms. Note, the forms that require completion do differ if the estate owes inheritance tax or not.
Before starting this process you must take the following initial steps:
- Inform all the relevant organisations of the testator’s death (by sending appropriate correspondence accompanied by a copy of the death certificate and will);
- Obtain valuations of all the assets contained within the deceased’s estate (you will need to provide this information on the PA1 form); and
- Pay any necessary inheritance tax (without doing so, you will be unable to receive a grant of probate).
You should ensure that you search through all the deceased’s personal and financial papers so that you can locate all of their assets. Look out for insurance certificates, share certificates, premium bonds and other such documents. This process should also be repeated for money owed by the deceased, i.e. make certain that you read the most recent utility bills and credit card statements.
Being careful in this way will help you claim back any money that may be owed to the deceased through overpaid bills (such as quarterly TV licences) and it will also guarantee that the deceased’s debts are settled in full.
What is an estate?
A person’s estate is made up of of any assets they owned prior to death. It may not however include any jointly owned assets.
There is a significant difference in owning property as a beneficial joint tenant or a tenant in common. If the deceased owned the property as a beneficial joint tenant then the law of survivorship applies, this means that the property passes to the other beneficial joint tenant upon death. This property does not form part of the deceased’s estate.
However, if the deceased was a tenant in common then he/she would have owned a particular share in the property and this share forms an asset that upon death belongs to the estate. This share is distributed amongst the beneficiaries in accordance with the will.
Do I have to pay inheritance tax?
If you are going to be applying for probate then you will have to complete an inheritance tax form along with your PA1 form (see above).
There are thresholds for estates, which have to pay inheritance tax; one example is the valuation of the estate must be over £325,000 (in the 2022/2023 tax year.).
In some cases the executor will be dealing with an ‘exempt estate’, this means that no inheritance tax is payable to HMRC. In order to ascertain whether or not the estate you are dealing with is an ‘exempt estate’ you must complete a ‘Return of Estate Information’ form (IHT205) to find out. Whilst completing the form you will receive an indication to whether or not you need to be filling out the full inheritance tax disclosure form (IHT400).
Can I Get A Grant Of Probate With Only A Copy Will?
Before a Grant of Probate or Grant of Letters of Administration can be issued, the Probate Registry needs the Will of the deceased, i.e. the original signed and witnessed document. However, when you can only find a copy of the Will, you will be asked to prove that only a copy now exists – and this can cause problems.
In particular the Probate Registry will probably also ask that you
- produce evidence that shows that the Will was not deliberately destroyed by the Testator (the person who made the Will).
- justify why the original Will cannot be found
- explain what steps have been taken to locate it by an Affidavit sworn by the Executor.
- provide details of those beneficiaries that may be prejudiced by the Copy Will ie that you identify those who would stand to lose out if the copy Will is accepted.
There are many reasons for why Wills go missing. It may be that the deceased made a Will and then changed it for some reason, disinheriting some or all of the original beneficiaries, or that they felt the intestacy rules would put them in a better position than the destroyed Will.
Or, it may simply be the case that the original Will is lost- perhaps lodged with unknown solicitors or lying gathering dust in a bank vault.
How To Get Hold Of A Copy Of A Will
A Will is a confidential document and the property of the person who made it (the Testator) or their estate if they are deceased (the Decedent). In situations where people keep their original Will at home and have not arranged for copies to be stored anywhere else, obtaining it can be challenging. However the Will becomes a public document once a Grant of Probate has been obtained to administer their estate.
In order to obtain a copy Will you must complete a standing search form and send it to your local District Probate Registry (DPR) together with a cheque for £6.00 made payable to HMCS. You must make sure that the information on the form is accurate for the search to work. The DPR will then send you a copy of the Grant together with a copy of the Will. If a Grant of Probate has not yet been obtained but is issued within the six months following the search application, the DPR will still send a copy to you. In addition, you can renew the standing search at the end of the six months by writing to the DPR quoting your standing search number and enclosing a further cheque for £6.00.
Alternatively, if a Lawyer prepared the Will, it is a good idea to write to them to ask if they hold a copy of the Will in their archives or indeed the original. However, unless you are an Executor of the Will and not automatically entitled to a copy, the Lawyers can refuse to provide you with this information.
Is there an official central register of wills?
There is no central register of wills which comes as a surprise to most people. however there is www.certainty.co.uk – the online facility of the National Will Register, a voluntary service launched in 2008 to enable people to search for a missing Will (although this is only of benefit if the Testator registered their Will with the service).
Will there be a reading of the will?
Probably not. With the notable exception of Hollywood films, there is usually no ‘reading of the Will’ when someone dies, at least in the UK. So potential beneficiaries should not expect to be asked to join the solicitor with all others close to the deceased, to discuss who is favoured and who is not in his or her Will.
What is Intestacy?
A person is said to have died ‘intestate’ if they have not left a valid will. Their property is then distributed according to the “intestacy rules”.
If they are married with no children, then the surviving spouse inherits everything. If they are married with children, then the money is split between the spouse and children. In circumstances where the affairs of the deceased are more complicated, the estate can be split between other family members such as parents, siblings and their children, grandparents, aunts, uncles and cousins.
What are “Personal Representatives”?
This is the generic term for someone who is either an administrator or executor of an estate.
What is renunciation of probate?
Essentially it’s how executors are able to give up their legal responsibility and role.
Click here to read more about Renunciation of Probate
Who is responsible for a Dead Body?
No one owns the body of a deceased person, they merely have opposing rights and duties – and a person’s wishes surrounding what will happen to their body after they die are not binding on the appointed personal representatives.
The arrangements following the death of someone fall on the executor of the Will. This responsibility falls on the executor as soon as the person in question dies.
Click here to read more about the duties of an executor
However if the Will has not been located, no Will was written or there are insufficient funds to cover the preparations for burial, the arrangements should be made by the person who owns the house in which the body is situated or the parent of a child that has died. Otherwise the next of kin has full responsibility and lastly it falls to the local authorities.
Probate – What are Statutory Notices?
These are Notices which the executors place in the London Gazette and a local newspaper, which advertise for any creditors of the estate to come forward.
They provide a period of two calendar months within which time anybody with any interest in the estate can make themselves known to the executors for payment.
Once the Notices have expired, creditors can only make a claim against the estate if the executors still hold assets out of which any claims can be met. They are not able to claim against the executors personally.
If Notices are not used and a creditor comes to light later on, ie after the estate has been distributed, the executors become personally liable for any claims.
It is generally held to be good practice that statutory notices are entered in any estate where the executors are not also the sole residuary beneficiaries.
Getting the right probate service – the need for specialist solicitors
Whilst it is possible to do your own probate, if you do decide to appoint solicitors, make sure that you choose qualified solicitors who specialise in probate – who may provide an online probate service.
Our highly experienced Probate solicitors deals with estate administation both for clients locally throughout Wiltshire, Hampshire and Dorset and throughout England and Wales for clients both based in the UK and overseas.
For free initial phone advice about any aspect of probate, call our probate team at 1 of our 4 offices in Salisbury, Andover, Fordingbridge and Amesbury.
Is it legal and practical for me to act as an executor if I reside overseas?
Yes it certainly legal – there is no problem with the probate of a UK will if you have abroad.
However many expats prefer to use UK based solicitors to handle the probate on their behalf. There are plenty reasons why executors may not want to be responsible for the whole process of estate administration. And when it comes to living overseas, there are further practical challenges.. That’s why our experienced team regularly represent expats in handling the probate of friend or loved one with a UK will. and Wales. However, certain practical challenges may arise. Consequently, we offer a probate service to expats who have lost loved ones in the UK and require the assistance of probate solicitors here to facilitate the estate administration process
Click here to read more about how our team can help you if you are an Executor of a UK Will Living Abroad
Selling A Property During Probate
The Personal Representative (PR) is responsible for asset gathering and paying the deceased debts in such a way that the beneficiaries receive the maximum inheritance.
In relation to property, the PR of the Estate must state in the contract that they are selling in their capacity as ‘personal representative of the deceased’ and with ‘limited title guarantee’ which will appear in the contract of sale. They must also supply the buyer’s solicitor with a certified copy of the Grant of Probate or Letters of Administration when the contract is sent out.
Where a property is owned as tenants in common, any co-owner can force a sale of the property, since the property is held on what is known as a ‘trust for sale’.
If there is one surviving owner and they wish to sell, they must appoint another ‘trustee’ in place of the deceased. Alternatively, they can apply to the Land Registry to have this restriction removed (to become a joint tenancy).
Click here to read more about joint property ownership disputes
Looking for probate conveyancing solicitors? Our 22 strong property team can help you. Click here to find out more about our conveyancing team – or call them or email them using one of the local phone numbers or contact form below.
Although it is a very difficult time when a loved one dies, it is important to begin arranging a funeral at the earliest possible time.
They can arrange the cremation or the burial and the type of service you decide to have. Some people decide to have a greater input and help with the arrangements. How much you help is entirely up to you.
Choosing the right funeral director
It is important that a funeral is arranged correctly and goes as smoothly as it possibly can, despite the unfortunate circumstances. You are placing a great deal of trust and responsibility into the hands of a funeral director; that is why it is so important to use the right company. Using a good funeral director will help you to feel more relaxed and assured about the funeral. It is advisable to use a funeral director who you know or has been recommended to you by someone you know.
If you can’t seem to get advice, We can recommend local established and reputable funeral directors we work with regularly.
It’s no secret that funerals can be costly, but you should be able to get a cost estimate from your funeral director. Members of the Society of Allied Independent Funeral Directors and the National Association of Funeral Directors have Codes of Practice to ensure they estimate costs before the funeral and show you a breakdown of what you need to pay and the various fees they may have paid on your behalf.
What does the Probate Registry/Service do?
The Probate Registry deals with applications for grants of probate which are non-contentious. This in essence means that there is no contention over the validity of the will or an inheritance claim over the estate by a potential beneficiary.
However, the Probate Service is not able to offer advice to people regarding the making of a will or it’s content. If you are thinking of making a will then you should seek professional probate legal advice from solicitors specialising in Wills – like the experienced wills and probate solicitors in our private client team.
The estate involves a trust – what is it and who does the assets belong to?
A trust is a legal agreement in which the assets of an individual or organization are held and managed by another on behalf of the beneficiary of the trust. The person or entity entrusted with these assets, known as trustees, has a fiduciary or legal duty to manage them according to the instructions set out in the trust deed or will. Therefore, trustees are legally responsible for managing the trust’s assets – but on behalf of another person or persons.
Click here to read more about Trusts and how our Professional Trustee Service works