Probate
Help with understanding probate and administering an estate
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Probate
Ian Winterbotham talks us through probate and answers a list of frequently asked questions.
What does probate mean and what is a grant of probate?
A grant of probate is a legal document that may be required to administer the estate of someone who has died.
What is a personal representative in probate?
The personal representative is the person – or more than one person – who’s legally entitled to administer the estate of the person who’s died.
What’s the difference between probate and estate administration?
The process of applying for the grant of representation, and the document you use to manage the estate, is referred to as a grant of probate. Estate administration is the process of handling all of a person’s legal and tax affairs after they’ve died.
Essentially, probate has become shorthand for estate administration.
When do I need probate? Do I need probate if there is a will?
Generally if the estate has property in it or more than £50,000 in a cash account or stocks, shares or other investments, then a grant of probate is usually required to release the assets.
Do I need probate for a small estate?
Not necessarily. Probate thresholds vary greatly from institution to institution. The big banks like Barclays and Lloyds will release up to £50,000 to beneficiaries like the spouse or the children without need for probate. You could find a smaller bank, or another firm investing money for the person who has died, who will want a grant of probate for as little as £5,000 worth of assets.
Do I need probate for joint assets?
This is often misunderstood. If you mean by joint assets where you own a property and you are joint tenants, the survivor will automatically inherit the whole of the property – you don’t need probate for that. The same applies with joint bank accounts.
However, where a property is owned as tenants in common and one owner dies, probate is almost certainly going to be needed to deal with their share of the property. Tenancy in common is where there’s been a severance of the joint tenancy, and usually one half of the property is dealt with by the will.
Do I need probate for property owned as tenants in common?
Yes, nearly always.
Speak To an Expert
Our service is designed to give you peace of mind that all the legal formalities have been completed and HMRC is satisfied at every stage. Our clients rely on us for the expert advice on trusts commonly found in wills and how to minimise inheritance tax on the estate. This can often be miscalculated if you try and do it yourself.
Do I need probate if my husband, wife or civil partner dies?
It depends. If all the assets are jointly owned with the person who’s died, then you won’t need to get a grant of probate. But if you own the property as tenants in common, probate would be required.
Do I need probate to sell a house?
If you’re not inheriting the house by survivorship, yes. The house can’t be sold before a grant has been obtained. Executors of the will can only prove their authority through a grant of probate or letters of administration, as it’s also called.
Do I need probate for premium bonds?
In the past you might have done, but our experience has been that NS&I will release up to the maximum £50,000 to a spouse or a family member who are inheriting under the will. You might require a grant of probate if it’s outside the family.
Whose responsibility is it to get probate?
It’s the responsibility of the executors named in the will. If there’s no will, then it’s the most entitled person who can become administrator of the estate. This is going to be the closest living relative, normally the husband, wife or civil partner followed by any children who are 18 or over. That would include adopted children, but not stepchildren.
How long does it take to probate a will?
It’s like asking ‘how long is a piece of string?’ We usually expect it to take a minimum of six months in the post-Covid era. The probate registries will sit on the application for a minimum of four months, but they usually provide the grant of probate quickly after that.
You then need to allow a period of time to gather in all the details and the date of death valuations. The whole process involves collating money, property, assets and possessions and distributing them as inheritance to specified beneficiaries, then paying any taxes and any debts off. From end to end it could stretch to nine or even 12 months.
Who decides if you need probate?
If the person who died left a valid will, it names one or more executors. It’s their responsibility to apply for probate.
If there isn’t a will, then the rules of intestacy will determine whose responsibility it is to apply for letters of administration. In practice, if you’ve got a property to sell you will almost certainly need probate, and the same applies if there’s inheritance tax to pay.
If there are trusts created by the will that need enacting, you will need to apply for probate. Another area that people might not have thought of is where gifts have been made in the seven years prior to the date of death, of more than £3,000 or £6,000 in any one tax year, then you are legally obliged to apply for a grant of probate.
Why would money go to probate?
Cash in a sole account is part of the estate of the person who’s died and should be dealt with by the will or by the laws of intestacy. The executors or the administrator would not necessarily need to get a grant of probate to do that, but they may need to if the banks won’t release the money without it.
What if there is a trust created by the will?
We specialise in trust wills. For a married couple with a trust will to be administered, we would do the following:
- Obtain all the information regarding the estate to identify the assets.
- Draw up the estate accounts.
- Submit the application to HMRC and to the court to obtain a grant of probate.
- Transfer part of the property into the names of the trustees.
- Collect in all the financial assets, dividends and distribute the proceeds to the beneficiaries at the appropriate time.
- Discuss appropriate arrangements where part of the estate must remain in trust for the beneficiary. This could involve arranging for one half of the property to be transferred into the names of the trustees at the Land Registry and protecting the property from being possessed to pay for care fees or being lost on remarriage.
- Consider registering the trust at HMRC via the trust registration service
- Produce minutes and a deed of covenant to loan any trust assets to the spouse or other beneficiaries.
We may also take instructions for a new will, if necessary, for the survivor. That will ensure that all available tax allowances on the second death can be claimed, including the resident’s nil rate band allowance. That can be lost if you don’t do this within two years of the date of death.
We offer a more comprehensive service than most other companies and we’ll be able to discuss and implement trusts created by the will. We can explain the inheritance tax implications as well as advise you about your options with regards to the trusts. It’s all focused on the opportunity to protect all the assets for the beneficiaries and save tax on a generational basis. We’ll be there to help you both throughout the process and at the end.
How can Will Power help with probate?
We offer a streamlined professional probate service for executors where there’s a will or for beneficiaries and administrators in cases of intestacy.
We’re widely used by Will Power clients who wish to obtain a grant of probate and have a lot of experience in this. We’ll complete the process as speedily as possible and release the funds to the beneficiaries without any unnecessary delay.
Our service is designed to give you peace of mind that all the legal formalities have been completed and HMRC is satisfied at every stage. Our clients rely on us for the expert advice on trusts commonly found in wills and how to minimise inheritance tax on the estate. This can often be miscalculated if you try and do it yourself.
We specialise in protecting the deceased’s estate from being lost to pay for care fees or on remarriage or due to ‘unwise decisions,’ as we might call it. We’ll always agree a fee upfront that’s very competitive with other probate providers and often half the price of local solicitors.
Our service includes valuing and selling all the relevant assets, taking steps to minimise inheritance tax on the estate, making arrangements to minimise care fees in the future. We also act as an independent third party in the event of family disputes.
We keep in touch with the executors about progress every step of the way.. We’re able to avoid the costly traps that some executors fall into when they act without professional help. We can ensure that every single form is filled in correctly and that you’re able to claim all the available tax allowances. Overall, we can save you time and trouble and take away the worry.