Introduction to Probate – a brief overview of the process
After a person dies it is necessary for someone takes responsibility for their affairs – this is known as “administering the estate” or “probate”. Who should administer the Estate – and what that person should do - depends on whether the deceased left a will or died intestate (ie without a will).
Obtaining the Grant of Probate or Grant of Letters of Administration
A key responsibility of the person administering the Estate is to obtain the Grant of Probate (where there is a will) or Letters of Administration (if the deceased died intestate).
Obtaining the Grant of Probate where there is a will. Normally, wills name one or more persons to serve as the Executor of the will. The Executor or Executors of the will are the people who will be responsible for administering the Estate. They will need to apply for a Grant of Probate. A Grant of Probate is a document issued by a government body called the Probate Registry that is used to administer the Estate. For example, banks may require site of the Grant of Probate before releasing money to the Executors.
Obtaining the Letters of Administration where there is no will. Where there is no will the deceased is said to have died intestate. Because there is no will specifying an Executor of the Estate it is impossible to know who the deceased would have wanted to administer the Estate. Accordingly, who will administer the Estate will be determined by the Administration of Estates Act 1925 which sets out who can act as the Administrator to sort out the affairs of the deceased. Normally this will be close relative. The person seeking to serve as Administrator of the Estate will need to apply to the probate registry for a Grant of Letters of Administration, which will enable the Administrators to administer the estate.
The Grant of Probate or Letters of Administration are not always required. For example, they will not be needed if the deceased died with less than £5,000 in assets. In such cases, the probate process can be greatly expedited. However, where the deceased had over £5000, owned property or stocks, or had certain types of insurance policies, a grant of Probate (where there is a will) or Letters of Administration (where there is an intestacy) will be needed.
The obligations of the Executor or Administrator
If you are the Executor or Administrator of an Estate you are legally responsible to make sure that the Estate is administered in accordance with the rules and regulations, including obligations in relation to Inheritance Tax. Where there is a will, the Executor must distribute the Estate in accordance with the terms of the Will. Where there is an intestacy, the Administrator must distribute the Estate in accordance with the rules of Intestacy.
The Executor or Administrator must assess whether Inheritance Tax is due and ensure it is paid within the deadlines imposed by the tax authority. The extent of the inheritance tax obligation depends on various factors such as the value of the deceased’s property and assets at the time of death, the value of certain types of trusts and life interests and to whom the inheritance is being paid. This is a complex area and failure to discharge obligations correctly can lead to serious penalties from the HM Revenue & Customs.
How long does the probate process take?
The probate or administration of estates process can take a long time, often over a year, and normally involves multiple interested parties, such as the the HM Revenue & Customs, banks, building societies, insurance companies. It is normally necessary to formally advertise the Estate to ensure that any creditors of the deceased have an opportunity to come forward. A further reason for delay is that, before distributing the Estate, the Executors or Administrators must wait to see if any claims are made against the Estate. A will or intestacy can be challenged within six months of the Grant of Probate or Grant of Letters of Administration.
Please contact SheridanLaw if you would like to learn more about probate and administration of Estates. Your initial meeting with us is free and confidential and does not put you under any obligation to instruct us. Call us on