The official process of settling the financial and legal affairs of someone’s estate after they die can be quite complicated and, in most cases, requires a Grant of Probate. This legal document enables either an Executor or Administrator to settle an estate by collecting the deceased’s assets, paying their debts and distributing any legacies due to beneficiaries.
In this guide, we take a look at the process of probate from why this is necessary and the stages of probate plus how to obtain a Grant of Probate and what authority this grants you.
- What is probate?
- Who is responsible for probate?
- What is grant of probate?
- What authority does grant of probate give?
- Do I need a grant of probate?
- When is probate not required?
- What are the stages of probate?
- How to apply for grant of probate
- What happens after I apply for probate
- How to get a copy of a grant of probate
- Obtaining a sealed copy of a grant of probate
- How long does a grant of probate take?
- How much does a grant of probate cost?
- What happens after probate is granted?
What is Probate?
Probate is the legal term used in England & Wales to describe the process of settling the financial and legal affairs of someone after they have died.
In Northern Ireland, this is also known as Probate but there are some slight differences to the process.
In Scotland, probate is known as Confirmation.
Who is Responsible for Probate?
The role of carrying out the process of probate is normally take on by the executors named in a person’s Will.
However, with complex estates where the legal, financial and tax affairs are not straightforward, many executors choose to appoint a specialist third party or solicitor to undertake probate for them.
On occasion, a named executor is unwilling, or unable, to deal with the matter of probate in which case the next of kin or a named beneficiary in the Will can seek to be appointed to handle these affairs instead.
In either of these cases, a Grant of Letters of Administration must be sought from the courts. Once obtained, the appointed party is known as an Administrator of the Estate.
Administrators and Executors have the same powers when it comes to probate. The difference between the two is that that:
- Administrators are appointed by the court and their powers do not come into force until a Letter of Administration is granted.
- Executors are appointed by the deceased and their powers are effective from the date of the deceased’s death.
If someone dies with no Will and therefore no executors have been appointed then the responsibility of probate can be granted to the next of kin who must apply for a Grant of Letters of Administration from the courts (see above).
What is Grant of Probate?
The Grant of Probate is the name given to the official legal document which is issued to either the Executor or Administrator which confirm they are entitled to deal with the deceased’s legal and financial affairs.
Both Grant of Probate and Grant of Letters of Administration are known as Grants of Representation.
What Authority Does Grant of Probate Give?
A Grant of Probate gives you the official authority to administer the financial and legal affairs of a deceased person in relation to the settlement of their estate.
It also enables you to distribute the assets in accordance with the Will (if one was made) to the named beneficiaries.
Do I Need a Grant of Probate?
In England and Wales, you will need to seek a Grant of Probate or Grant of Letters of Administration if:
- the total value of the deceased’s estate is more than £5,000.
- the deceased’s estate includes any property or land which is not automatically passed to a joint-owner on death.
Please note that some financial institutions, particularly those that administer stocks and shares may still require Grant of Probate for accounts that are valued at less than £5,000.
In Northern Ireland, the cut off value for Grant of Probate is £10,000.
The process in Scotland is slightly different and you must apply for ‘Confirmation’ from a court in order to administer the finances and legal affairs associated with the deceased’s estate. There are two types of Confirmation; small estates and large estates.
An estate is deemed to be small if the total value, including property and other assets are valued at £36,000 or under. An estate exceeding this value is deemed to be large.
When Is Probate Not Required?
A Grant of Probate is often not required if estates are under the value of:
- £5,000 in England and Wales
- £10,000 in Northern Ireland
In Scotland, you must apply for confirmation if the deceased left any property or had at least one item of money.
However, some financial institutions including banks may require a Grant of Representation at levels below those stated above. Always check with the individual organisation to find out if this is required. Doing this early is strongly recommended as obtaining a Grant of Probate can take up to several months (see ‘How Long Does a Grant of Probate Take?’, below)
What Are The Stages of Probate?
Probate can be a long and complicated process or it can be quite straightforward; this very much depends on how complex the deceased’s financial and legal affairs are. However, the process can be broken down into five key stages.
Probate: Stage 1
The first stage of probate is to identify both the assets and liabilities of the deceased in order to calculate the total value of the estate.
This includes all bank accounts, property, possessions and investments as well as any debts such as utility bills, loan, outstanding tax payments and mortgages.
This inventory must be used to determine whether a Grant or Probate or Confirmation (Scotland) is required.
In tandem with this, the Executors (or Administrators) are required to verify the validity and terms of the deceased’s Will plus to identify the beneficiaries named within it.
If the deceased did not leave a Will, then Intestacy Laws will be applied.
Probate: Stage 2
Once the estate has been assessed and an inventory has been completed you will be able to determine if any Inheritance Tax is due and arrange for the relevant forms to be sent to the HMRC. Inheritance does not have to be paid until the end of the sixth month following the date of death but a tax return must be completed before probate is granted.
Some decisions about liquidating the assets can be taken at this stage such as appointing a selling agent for any property; a house can be sold ‘Subject to Probate’ and before a grant has been received.
If a Grant of Probate is required (see ‘Do I Need Grant of Probate?’, above) then you can apply for this once the matter of Inheritance Tax has been dealt with.
You can find details of how to apply for probate (or confirmation in Scotland) below.
Probate: Stage 3
After the Grant of Representation (either Probate of Letter of Administration) has been issued then the executor(s)/administrator(s) may finalise:
- Liquidating (selling) the assets of the estate.
- Settling liabilities (paying debts).
- Finalising and paying Inheritance Tax.
- Preparing other tax accounts for the HMRC (e.g. Capital Gains Tax or Income Tax).
Please note that Inheritance Tax must be settled with the HMRC by the end of the sixth month after the date of death and, in some circumstances, must be settled before the Grant of Probate is issued.
Probate: Stage 4
The fourth stage of the process is preparing the Estate Accounts which enables the executor(s) to determine the balance of the estate in order to settle bequests in accordance with the Will to named beneficiaries.
Probate: Stage 5
Once the accounts have been approved and there are no challenges to the payments in and out of the estate or to the terms of the Will itself then the remaining assets can be distributed.
Finally, the accounts will be closed and all paperwork related to the process of probate carefully stored and saved.
How To Apply For Grant Of Probate
Once you have estimated the value of the deceased’s estate and determined whether you need to apply for a Grant of Probate, you may need to pay some or all of the Inheritance Tax due before you receive Probate.
This can often cause some problems with cash flow if you are unable to access funds from the deceased’s account without a Grant of Probate. It is worth remembering that you can claim the tax back from the estate if you pay this from your own accounts.
In all instances, you will need to file an Inheritance Tax form before you apply for probate.
You can apply for a Grant of Probate online via the government’s website or by post using one of the following application forms:
Either of these forms must then be sent to your local Probate Registry and must include:
- The original Will and any codicils that have been added to it.
- The Death Certificate
You must also include two photocopies of the Will which must be made without removing any bindings or staples.
You should send all of these documents by a signed-for postal service.
Please note that the Death Certificate will be returned to you but the original Will is kept by the Probate Registry. Therefore, it is important to ensure that you have kept a copy of the Will and any codicils for your own records until probate is issued. The Grant of Probate does include a copy of the Will.
In Northern Ireland you will also need to deal with Inheritance Tax before you can apply for probate. You will need to send confirmation of the stamped Inheritance Tax forms along with a copy of the death certificate and Will (if there is one) to the local Probate Office. Once received, you should be notified of an appointment date which must be attended by all of the executors.
In Scotland, you will need to make an appointment with your local sheriff court to apply for confirmation. As well as completing the C1 and C5(SE) forms (Inheritance Tax), you are also required to provide a copy of the inventory that you have prepared which details all of the deceased’s assets. If the deceased died without leaving a will then you will also need to obtain a Bond of Caution.
A Bond of Caution is a kind of insurance which is taken against someone applying for confirmation when they are not authorised to do so.
What Happens After I Apply For Probate?
Once you have sent the relevant documents, application forms and fees to the Probate Registry then you will be sent an oath which must be sworn at either a local commission for oaths or the probate office.
The Probate Registry will then consider the application and, depending on how busy they are and whether there are any issues with the application, you should receive a response within 2-5 weeks.
How To Get A Copy Of A Grant Of Probate
You can order additional copies of the Grant of Probate from the Probate Registry. If you do this at the time of applying for probate, the copies are charged at 50p each. It is recommended that you obtain at least five copies of a Grant of Probate but complex estates may require many more.
If you require copies after applying for a Grant of Probate then these will cost £10 each.
Obtaining A Sealed Copy Of A Grant Of Probate
A copy of the Grant of Probate which is issued by the Probate Registry with a Court Seal is only made available to the estate executor(s)/administrator(s).
You can request a sealed and certified copy of the Grant of Probate at the time of applying for a cost of 50p each or £10 if requested after the application has been approved.
A sealed and certified copy is often required if the deceased had any assets which were administered overseas.
How Long Does A Grant Of Probate Take?
There are several things that determine how long a Grant of Probate can take, namely:
- If the application form is correct.
- How busy the Probate Registry offices are.
- Whether the Grant of Probate is being contested.
For simple estates that have a very few assets and no Inheritance Tax is due then a Grant of Probate can usually be issued within 2-3 weeks.
For more complex estates, it can take up to six months to receive the Grant of Probate. In rare circumstances which may involve overseas investments and/or business accounts/properties etc then this can take even longer.
In general, a Grant of Probate in the UK takes between 3-6 months to be issued.
In Scotland, the delays can be similar if the deceased’s legal and financial affairs were complicated but you can expect to receive a confirmation within three months.
How Much Does A Grant Of Probate Cost?
Currently, applying for a Grant of Probate from the Probate Registry costs £215 in England and Wales. In Northern Ireland the fee is £237 (plus an additional charge of £59 if you are not using a solicitor).
There is no charge for a Grant of Probate for estates under the £5,000 (England and Wales) and £10,000 (Northern Ireland) thresholds if you need to obtain one for certain banks or other financial institutions.
The fees for applying for a Grant of Probate will change for England and Wales in April 2019 and, instead of being a fixed fee, will reflect the value of the estate. The new fees will therefore be:
In Scotland, the cost of applying for a confirmation is £155 or £215 if you are not using a solicitor.
It is, however, worth remembering that if you appoint a solicitor to act on your behalf for the process of probate that they will charge fees on top of these.
Many lawyers offer a fixed price service but some charge a percentage fee based on the total value of the estate. Other solicitors may charge on an hourly basis which could end up being very costly if the deceased had complex financial and legal affairs.
What Happens After Probate Is Granted?
Once probate has been granted, the executor(s) can begin the final process of collecting in any moneys due to the estate including the liquidation of any assets and pay off any debts and expenses.
Once this has been done, some legacy payments may be made.
It is at this stage that interim accounts are usually prepared in order to allow any final taxes to be calculated.
These accounts will differ from the final estate accounts which are circulated for approval prior to residuary beneficiaries being paid.
After the accounts have been approved and there are no contests to the Will then the final division of the estate can be made and all bank accounts closed.
The Executor(s) and/or Administrator(s) may then file the probate documents. It is recommended that these are safely stored for up to 12 years in case there are any queries or later contest raised on the Will.