What is probate
Probate is a process, which must be initiated when somebody dies. The aim of the process is to manage the estate left by that person.
The steps you take when somebody close to you passes away will depend on several factors, including whether or not they left a will and whether they named executors in the will.
What exactly is probate?
Probate is a legal process, which takes place when a person dies. The process aims to manage and divide up the person’s estate, ensuring that their assets are protected and given to those who are mentioned in the will. Probate is usually carried out by the executors of the will. In most cases, people name their partner, their child or a legal expert as an executor. In some cases, a will is not left, and this case, the process is slightly different.
It is possible to initiate the probate process without legal advice, and there are DIY guides out there. However, many people choose to employ a solicitor to save time and hassle at what is likely to be a very difficult and stressful time.
In Scotland, probate is sometimes referred to as confirmation.
Obtaining a grant of representation
To start the probate process, a grant of representation may be required. In some cases, notably, when there is a small estate or very little cash remaining in bank accounts, banks may release sums without a grant of representation. For larger, more valuable estates, a grant will be needed. To obtain the grant of representation, you must submit an application as the next of kin or the named executor. You can do this independently or hire a solicitor. The grant of representation will allow you legal access to the person’s assets, including their bank account. Without this approval, you’re likely to find it incredibly difficult to manage the estate and divide up the assets.
If the deceased left no property, business assets or shares, or their assets were held in a joint name, a grant of representation may not be needed, as the estate will pass directly to the spouse or partner. If you’re unsure about whether a grant of representation is required, seek legal advice or contact the bank or building society that holds the account. If you are accessing accounts and you don’t have the grant of representation, you will be asked to provide proof of death. Most commonly, this involves presenting a death certificate.
You may hear the grant of representation referred to as the grant of probate or letters of administration.
Applying for a grant of representation involves 4 steps:
- Completing an application form
- Filling in a form to calculate inheritance tax
- Submitting the application
- Taking an oath
The application is sent to the Probate Registry and will include the death certificate, the will and several copies and the inheritance tax form, as well as the probate application and the application fee. This fee is waived if the estate is worth less than £5,000.
To obtain the grant of representation, you must swear an oath, and you can do this at your local probate office or at a location of a commissioner of oaths. In the majority of cases, this involves going to a solicitor’s office. The oath confirms that you have completed the forms using information you believe to be true and accurate.
Applying for probate with a will
A will is a legal document, which outlines what you want to happen to your assets and belongings when you pass away. If a will was left, and you have been named as an executor, you must apply for the grant of representation.
If nobody who was named in the will wishes to apply for the grant of representation, you must contact the local probate registry.
Applying for probate without a will
More than 50 percent of people die without a will. If there is no will, it is common for the next of kin or a close family member to apply for the grant of representation. In this case, the individual would become the administrator of the estate. It is possible to apply to be an administrator if you were married or in a civil partnership when the person died, but you cannot apply if you were not together at the time of marriage. In this case, a child over the age of 18 or a parent may apply.
The next step
When the grant for representation has been approved, the executor will send the relevant paperwork to the banks, building societies and other organisations holding money or other assets. The assets will be released and transferred into the temporary ownership of the will executor. Once this has been completed, the executor must pay off any outstanding debts, including inheritance tax and any bills that were outstanding at the time of death. As the executor, you may use any money left in the will to cover the cost of legal fees linked to the probate process.
Once you have covered costs, you can start to distribute the assets in line with the deceased’s wishes or by law if no will was left. If there was a will, assets must be divided and distributed in accordance with what is written in the will.
If there was no will, the law has the responsibility of deciding what happens to the estate.