What is probate?

Probate is the process of obtaining confirmation from the Court (Probate Registry) that a Will is valid and so confirming the authority of  its Executor/Executors (who are the people nominated by the Will to deal with an estate) to deal with an estate after death. Probate is not needed in all cases, but advice should be sought from a Solicitor to find out if it is. Assets of low value may not need probate, but even low value shareholdings often will. Assets held by the deceased and another/others as joint tenants (and this could include land or joint bank accounts) won’t need probate but Inheritance Tax might still be payable on the value of the deceased’s share.

Just because an asset is in joint names does not always mean that there is a joint tenancy. It could be something called a tenancy in common, which is different. Solicitor’s advice should be obtained on this point.

Equally, it is important to know that the fact that a Will exists does not rule out the need for probate. This is a common misconception. Even if you don’t need probate, you will have legal (and possibly tax) obligations. 

A similar procedure is followed if a person dies without a Will. This is known as an Intestacy. In such cases, rules laid down in law determine who benefits from a deceased’s estate. Because of the way these work an unmarried partner might not receive anything, although, again, any assets held as joint tenants would pass to a surviving co-owner. That said, there might still be Inheritance Tax to pay, even on co-owned assets.

Once more, depending on the facts, and size of an estate, an application to the Court (in this case called an application for Letters of Administration) may or may not be needed and advice should be sought from a Solicitor on this point also.

The term “probate” is often used as a shorthand for either form of application.

What are the first steps after a death?

Crucially, take time to grieve. It is allowed.

A death certificate should be obtained within 5 days of death. This can be done by an executor, family member, or friend. Sometimes a death certificate can’t be obtained straight away, e.g. if the Coroner wishes to look into a death, but an interim certificate is issued to allow the estate of the deceased to be dealt with, as far as possible, without delay.  

The funeral can then be arranged by family/executors. You should check to see if the deceased left any wishes concerning this, although these are not binding.

Who deals with an estate after death?

Whether you are an Executor named in a Will and are happy to act (and it is important to note that you do not have to act if you are named as an executor, but if you do not want to, you should step aside quickly and not take any role in, for example, looking into the assets of the deceased), or someone applying to be an administrator if there is no Will (or where there is a Will but the Executors cannot or will not act), you have a duty to identify all assets of a deceased, such as bank accounts, land, shares, national savings, trusts of which the deceased was a beneficiary, and overseas assets. In addition, you must also identify all debts and creditors of the deceased, liaise with HM Revenue and Customs (HMRC) to pay all Inheritance Tax - sometimes still called death duties. 

It is important to note that other taxes might be due to HMRC as well, so again advice from a Solicitor is key. Executors/administrators are personally liable if they get things wrong when they administer an estate.   

In some circumstances not all Inheritance Tax due is payable straight away, although interest runs on any unpaid tax from six months after the end of the month in which the deceased died.

What is the probate process?

Once this is done, and if a Grant or Probate/Letters of Administration is needed an application is made to the Probate Registry for a Grant (the Court Order). This is either done online or by a paper form depending on the circumstances and so once again a Solicitor’s advice is crucial here to make sure the right procedure is followed.

Sadly, the probate process can take some time. That is just how things are today. If Inheritance tax is due then probate can often take 6-12 month. If no tax is due it is quicker, 4-8 months. If no Grant is needed, the process of winding up a deceased’s affairs can often be quicker still but each case depends on its own circumstances, there is no “one size fits all”. 

Once the Grant has been issued assets can be encashed, debts paid and the proceeds of the estate distributed to its lawful beneficiaries.

What might delay probate?

As many organisations have to be dealt with, there can often be delays in obtaining information needed. In particular, HMRC and the Probate Registry can have long processing times. In some cases, challenges to Wills can arise, where this happens it is important to seek legal advice. Remember the personal liability!

A summary of the probate process.

1. Register Death
2. Obtain the Will (if there is one) and identify all beneficiaries (this might involve using enquiry agents to track down missing or unknown beneficiaries) 
3. Ascertain the assets and liabilities of the estate
4. Complete an Inheritance tax return If needed and pay any tax then due
5. Apply for Probate/Letters of Administration
6. Encash assets and pay all debts and liabilities including any tax dues on top of Inheritance Tax such as Capital Gains or Income Tax – again professional advice is needed here
7. Distribute the estate.

Please note: that acting as an Executor or Administrator is a lifelong responsibility, you might have to deal with things that arise years after a death. This is why advice from a Solicitor is crucial.