What Is Probate And Why Do I Need It?
Probate is the official ‘proving’ of a will. It is the legal process for handing the estate of someone who has died.
Probate must be granted by a court to confirm that your will is a valid legal document and that what is written are your true final wishes.
Without probate (if required), the executor(s) cannot share out any bequests from the estate.
Is Probate A Legal Requirement?
Probate is needed if the deceased owned a property or significant assets (such as shares) in their sole name.
Legally, estates worth less than £5,000 do not have to go through probate.
However, banks, building societies or other financial institutions will want to see a Grant of Probate (also known as a Grant of Representation) if the estate is worth more than a certain amount. Each institution has its own threshold.
Obtaining a Grant of Probate can be more difficult if:
- the will is being disputed
- the estate is insolvent (the deceased was bankrupt)
- the estate includes foreign property or the deceased lived outside the UK.
It is possible to avoid probate by putting assets into a trust – thereby removing them from the estate. As well as speeding up matters, this can also offer tax benefits. For more information, see the Trusts page.
Who Can Apply For Probate?
The executor named in the will. If there is no will – or if the named executor refuses – there is a strict legal order of who can apply for Letters of Administration instead (starting with the surviving spouse then the children; father and mother; brothers and sisters; grandparents; aunts and uncles; the Treasury Solicitor; creditors of the deceased).
A grant cannot be issued to anyone aged under 18 but their legal parents can apply.
How Much Does It Cost To Probate A Will?
There are various costs associated with obtaining a Grant of Probate:
- Probate Court fees – currently £155 plus 50p per copy of the grant
- Swear fees (the executors must legally swear an oath or affirm before a solicitor that the details in application for Grant of Probate are true and accurate) – generally £7. That is £5 per executor plus an additional £2 per exhibit (usually the will)
- Solicitors’ fees – these will depend on the complexity of the will and how much work is required.
Coles Miller’s solicitors typically charge between £800 and £850 to obtain a Grant of Probate (so the estate administration can progress) if the probate application is straightforward. That can rise to between £1,200 and £1,500 if the estate is larger, there is Inheritance Tax to pay and we are dealing with HM Revenue & Customs (HMRC).
If you wish Coles Miller to deal with the administration of the estate – to collect information regarding assets and liabilities, prepare the probate application, collect the assets, pay the bills and distribute the estate – then an average estate would be charged between one and three per cent of the gross estate.
It is important to note that even a modest estate can result in higher probate fees if the deceased made a more complex will by naming lots of beneficiaries.
In May 2017 the government announced plans raise the cost of probate. You may have read about this. Probate fees would have been based on a sliding scale ranging from £0 for an estate of £50,000 or less to £20,000 for an estate worth more than £2 million.
But there was significant opposition and the government abandoned these plans ahead of the June 2017 election.
Probate fees are in addition to Inheritance Tax (IHT). Find out more here about minimising your IHT liability.
How Long Does It Take To Apply For Probate?
It generally takes between six and eight weeks to obtain a Grant of Probate if matters are straightforward.
Applying for probate can be a long process because it involves a lot of legal, financial and tax work. There are five phases:
- Identify all the assets (property, savings, investments and possessions) and liabilities (debts, loans, utility bills) of the deceased to see how much their estate is worth.
- Pay Inheritance Tax (IHT) to HM Revenue & Customs (HMRC) and submit an IHT tax return (whether or not there is any tax due). Apply to the Probate Registry for a Grant Of Probate/Representation.
- Once probate has been granted, the executor(s) of the will can sell any assets not specified as bequests, settle the deceased’s debts and other liabilities, pay final estate administration expenses, pay HMRC any outstanding Inheritance Tax, Income Tax or Capital Gains Tax.
- Prepare estate accounts listing all payments in and out of the estate. Show the balance of funds left for pending distribution to the beneficiaries.
- If there are no legal challenges, assets can be transferred and funds paid to the beneficiaries.
However, there are some circumstances in which it is vital to finalise probate as quickly as possible. In cases such as this it is possible to apply for an Emergency Grant of Probate.
An example of this would be where the person making the will died during the sale of a property. If he or she died between exchange of contracts and completion the sale could fall through, resulting in a breach of contract and significant costs for the bereaved family.
A solicitor can apply for an Emergency Grant of Probate to ensure that the sale of the property proceeds as planned.
This can be more costly – because you would have still have to go through the process again to obtain a full Grant of Probate – but it is cheaper than the property sale falling through and then being sued for breach of contract.
What If There Is No Will?
As you will have read earlier, not every estate has to go through probate. Estates can pass between spouses without the need for probate – as long as the assets are held jointly and passed by a legal process known as ‘survivorship’.
But sometimes where there is no will a court authority is still needed. The legal term for this is a Grant of Letters of Administration.
If the deceased died without a will then the laws of intestacy apply. This is a set of rules that determines who inherits what – based on the hierarchy of the surviving family.
It is a one-size-fits all system that has been drawn up by the government. The only way to avoid the intestacy laws is to make a will and ensure that it has been correctly signed and witnessed according to the law.
Can I Apply For Probate Myself? Which Forms Would I Need?
If the estate is unlikely to be liable for Inheritance Tax then you would need form IHT205 (online) or form IHT206 (postal form and notes).
Estates facing an IHT liability of more than £1 million would need form IHT400. This form must also be completed for estates where there has been tax planning to minimise the IHT liability.
Other forms include:
- IHT401 (people with a permanent home outside the UK when they died)
- IHT402 (for claims to transfer an unused nil rate band so you benefit from a deceased spouse’s or civil partner’s tax relief that would otherwise be lost)
- IHT403 (gifts and other transfers of value)
- IHT404 (jointly owned assets)
- IHT407 (household and personal goods)
- IHT409 (pensions)
- IHT411 (for listed stocks and shares)
- IHT412 (unlisted stocks and shares)
- IHT413 (business and partnership interests and assets)
- IHT415 (interest in another estate)
- IHT416 (debts to the estate)
- IHT418 (assets held in trust)
- IHT419 (debts owed by the deceased)
- IHT422 (application for an IHT reference number)
- IHT430 (reduced rate of Inheritance Tax)
- IHT 435 (claim for nil rate band tax relief on a residential property)
- IHT 436 (claim to transfer the nil rate band tax relief on a residential property).
It is possible to download all these forms from the government website and apply for probate yourself without the help of a solicitor but it’s a complicated and time-consuming process.
What if you were to do most of the work yourself and leave the solicitor to handle all the technical bits?
That may sound like a tempting way to save money but it can be a false economy because the solicitor will still have to go through all your work. In cases such as this we often find that people have either made mistakes or they have filled in forms they didn’t need to.
What Happens After Probate Is Granted?
It can still take a long time for bequests to be paid out after probate has been granted – as much as three months for even a simple will with no property and just a single bank account. For more larger and more complex estates it can take even longer.
Why does it take so long? Inheritance Tax must be paid first and the government must be satisfied that the liability has been paid in full.
Also, some executors will deliberately wait up to 10 months after the date of the grant because of the risk of possible legal challenges.
What Is Estate Administration?
This is the process of gathering together and managing the assets of the estate, paying any debts and taxes due and sharing out the bequests to the surviving beneficiaries.
It is the legal responsibility of the executors. Our probate solicitors are often appointed as executors to help families administer the estate after the death of a loved one.
Can Probate Be Contested?
It is possible to contest probate. Applicants have six months in which to issue proceedings after the date of the grant – plus a further four months in which to serve them.
That applies to anyone who has a potential claim under the Inheritance (Provision For Family And Dependents) Act 1975, whether they were named as a beneficiary or not.
There is no time limit for contesting a will or probate if either:
- a fraud has taken place
- the deceased lacked mental capacity when they made their will.
But it is always better to contest a will before probate has been granted in order to stop an executor from disposing of any assets.
Contact Coles Miller Partner Simon Steele-Williams (who specialises in contested wills and litigation) if you wish to dispute or defend a will.
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