Probate: Solicitor’s Step-by-Step Guide
14 minute read
Date Published - November 7th 2024
14 minute read
Date Published - November 7th 2024
It’s an uncomfortable topic, but when someone passes away, managing their property, money, and possessions often requires going through a process known as probate. This can feel overwhelming, especially while navigating the emotional challenges of losing a loved one. However, understanding probate can be incredibly beneficial, and in many cases, it’s a process you can manage yourself, potentially saving you thousands of pounds.
If you would like further advice on selling a property in probate, please don’t hesitate to speak to one of our Conveyancing or Probate experts.
When someone dies, their estate - which includes everything they owned like their home, savings, and personal items - needs to be sorted out and distributed according to their wishes. That’s where probate comes in.
Probate is the legal process that gives someone, usually the person named as the Executor(s) named in the Will, the authority to take care of the deceased person’s estate. This might involve selling the house, paying off debts, and making sure that everything is handed out as the Will says.
To apply for a Grant of Probate from the court, which gives permission to deal with the estate, you’ll need to be named an Executor in the deceased’s Will. If there is no Will, only the most entitled person, for example, their closest living and able relative, can apply to become the administrator of the estate (known as Letters of Administration).
The executors of the Will are responsible for selling the property unless the beneficiaries of the Will want to have the property transferred into their names instead.
A grant of probate is a court-sealed document or court order which is issued by the Probate Registry and gives the executor named in a Will, the legal right to manage the deceased’s estate. It provides the executor with access to the deceased’s money and allows them to share the possessions amongst the beneficiaries in accordance with the Will.
It can take between 1-3 months for the grant of probate to be issued once the correct form has been submitted, and checks have been made to prevent any fraudulent applications. As part of the application, you would also need to provide an estimate of the value of the estate and determine whether or not there is Inheritance Tax to pay.
In the UK, probate is generally required to ensure the legal transfer of the deceased's assets according to their Will, or under the rules of intestacy if a Will does not exist.
Probate becomes mandatory when the deceased owns property solely in their name. Whether it's real estate, vehicles, or individual bank accounts, these assets need legal authority for transfer or sale. This authority comes in the form of a Grant of Probate, providing executors the power to act.
Some banks, building societies and insurance companies set thresholds for what requires a Grant of Probate to release the deceased's assets. While this threshold varies, assets exceeding £5,000 could necessitate probate. Each institution's limit differs, so it’s important to consult with them directly to provide clarity.
Debts, outstanding taxes, or complex financial situations involving the deceased's estate can also necessitate probate. Executors or administrators must prove their legality to handle such affairs, resolving debts and adhering to tax obligations before distributing the estate.
Complex estates, featuring multiple properties, stocks, or foreign assets, require thorough legal scrutiny.
Probate provides a systematic approach to address these complexities. It ensures lawful asset distribution and minimises the potential for disputes among beneficiaries.
Ensuring legal compliance throughout the probate process is crucial to avoid future complications. Solicitors specialising in probate law can offer invaluable guidance, streamlining asset distribution and avoiding unnecessary legal hurdles. Their expertise not only makes sure all legal and tax obligations are fulfilled but can also aid in efficiently managing estates.
Settling and distributing an estate in the UK doesn't always necessitate going through probate. Certain circumstances allow for the bypassing of this legal process, making the handling of a deceased's estate more straightforward. Understanding when probate is not required can save time and potential legal fees.
Assets owned jointly typically transfer directly to the surviving owner without the need for probate. This is common with property and bank accounts held in joint names. Upon the death of one party, ownership seamlessly transfers to the co-owner, bypassing the probate process entirely.
Estates of small value often do not require probate. The threshold varies between financial institutions, but generally, if an estate's total value is below £5,000 to £50,000, banks and other financial organisations may release funds without needing probate. You should always check with the relevant institution as policies can differ.
Certain financial products are designed to bypass probate. Life insurance policies and pension benefits, when named to a specific beneficiary, can often be transferred without going through probate. These arrangements allow for the direct distribution of funds to named individuals, thereby reducing the complexities and time involved in settling an estate.
In scenarios where the deceased's assets are straightforward and devoid of any complexities such as outstanding debts or disputes, probate might not be required. However, it's crucial to seek professional advice to ensure all legal obligations are met. Solicitors specialising in estate and probate law can provide clarity and assist in determining whether probate is necessary for your specific situation.
Determining whether you require probate Will depend on the specifics of the deceased's assets and the manner in which they were held.
If you don’t apply for probate when it’s needed, you will be unable to access or transfer the deceased's assets, which can create significant challenges for the beneficiaries. Probate is essential as it gives a named executor the legal authority to manage the estate’s assets. Without this authority, they cannot close bank accounts, sell or transfer property, cash in investments, or handle pensions. Essentially, the assets will remain in limbo, preventing beneficiaries from receiving their inheritance.
Not applying for probate when necessary can also lead to complications down the line. For instance, a surviving spouse might assume that probate isn’t required because all assets were jointly owned. However, if it turns out that the house was held solely in the deceased spouse's name, the executor will need to deal with probate for that estate later. This oversight can result in delays and increased costs, adding further stress during an already difficult time.
When a person passes away, probate involves organising their estate by managing their assets, money, and possessions and distributing them according to the terms of a will or the rules of intestacy. An executor must apply for a Grant of Probate to initiate this process, which grants them the legal authority to manage the deceased's property until all taxes are settled and inheritance is distributed.
If there is no will, the estate will be managed through a Grant of Administration instead of a Grant of Probate. While not every estate requires probate - particularly if there’s no property involved or if the total value is below a certain threshold, usually around £5,000 - it's always wise to seek professional advice. This is especially important when property is held as tenants in common or if the estate is substantial.
Ultimately, if you do not apply for probate as an executor or administrator, the deceased’s estate cannot be accessed or distributed, leaving assets and accounts frozen. For guidance tailored to your situation, reaching out to a knowledgeable probate solicitor can help clarify the necessary steps to take.
The timeline for probate can vary significantly depending on several factors, such as the size and complexity of the estate, any disputes that may arise, and the efficiency of the Probate Registry.
Typically, the process begins with the submission of a probate application, which, on average, takes between eight to twelve weeks for the Probate Registry to process.
Once probate is granted, the executor has the authority to access the deceased's assets, but collecting these assets and distributing them according to the will can take additional time. For straightforward estates, without disputes and where assets are easily accessible, this stage might take an additional three to six months.
For larger or more complex estates, especially those involving disputes among beneficiaries or complications like properties abroad, the process can extend beyond a year. Legal challenges or the discovery of additional assets not initially identified can further delay proceedings.
Solicitors experienced in probate law can streamline the proceedings, ensuring that the application is filled out correctly and submitted with all required documentation, potentially mitigating delays. Furthermore, in complicated estates, they can navigate legal challenges and ensure compliance with UK law, ultimately speeding up the process.
If you’re involved in the probate process, you'll probably want to keep track of how things are progressing. Fortunately, there are a few ways you can do that in the UK.
If you applied for probate yourself, you should get updates from the Probate Registry as your application moves along. If you feel like you’re not hearing enough or if you’re worried about delays, you can always contact the Probate Registry directly to get more information.
There’s also an online tracking service from HM Courts and Tribunals Service. If you applied online, you can log in anytime to check the status of your application.
If a solicitor is handling probate for you, they’ll typically keep you informed as things
progress. But if you have any questions or need an update, don’t hesitate to reach out to them directly.
The probate process can be complicated, and you can easily make errors if you are not sure how to approach it. Here are some things to be aware of during probate:
The probate process can be delayed due to several factors, including:
Third-party delays: Complications usually occur in asset valuation when the deceased has interests in trusts, overseas assets, or even a Will made overseas.
In certain situations, you may find yourself in a position to challenge someone else's probate application by entering a caveat. This legal action is initiated when there is a dispute concerning various aspects, such as:
Upon entering a caveat, it initially lasts for a period of 6 months. However, there is an option to extend this period for an additional 6 months if necessary. Importantly, the caveat serves as a temporary halt to all applications for probate on the estate during this time.
It's crucial to be aware that entering a caveat can potentially lead to legal action and, subsequently, legal costs. Therefore, it is advisable to explore the possibility of reaching an amicable agreement with the individual applying for probate before taking legal action. Open communication and negotiation can often help resolve disputes without resorting to costly legal processes.
Probate can be demanding and time-consuming, especially if you’re unsure whether you’ll need it or not. That’s where seeking expert advice makes all the difference.
At GloverPriest, our solicitors can advise on or help with any stage of the probate process, providing friendly and transparent legal advice. If you would like further advice on probate, trust our thorough specialist Wills, Trusts, LPA and Probate solicitors to explain the processes.
Let us simplify the probate process for you. Get in touch today.
Estate administration in England and Wales isn’t restricted to regulated entities, which means unqualified providers can offer these services without the necessary experience or insurance.
At GloverPriest, we are fully authorised and regulated by the Solicitors Regulation Authority, providing you with the peace of mind that your estate affairs are being managed by a trusted and professional team.
The short answer is no, you don’t technically need to instruct a solicitor for probate. However, the long answer is that in some cases, it may be beneficial if you do use a solicitor to help with probate.
Yes, probate can sometimes be bypassed if the estate's conditions allow it, such as in cases of joint ownership of property, small estates, or when certain financial products are designated to bypass the estate.
If a Will has been left, it is the type of assets, how they are owned and the value of the estate, that will determine whether a grant of probate is needed or not.
Probate isn't always needed when someone dies; it really depends on the estate's details. If the deceased had assets solely in their name that are above a certain value, or if they owned property, you'll likely need a grant of probate to handle those assets properly. However, if the assets were jointly owned or placed in a trust, you might not need to go through probate at all. To find out what applies in your situation, it’s a good idea to speak with a probate solicitor who can offer you personalised advice.
You can typically apply for probate shortly after a person has died, once you've registered the death and collected the necessary documents, such as the will (if there is one) and asset valuations. However, it's wise to ensure you have everything in order before applying, as the probate process can take time. Generally, the application takes about eight weeks to be processed, but it may take longer if there are any complications. To ensure you’re on the right track and understand the timeline for your specific situation, it’s beneficial to consult a probate solicitor for personalised advice.
Once probate is granted, the executor gains the legal authority to manage the deceased’s estate. Your first responsibility is to settle any outstanding debts and taxes. After that, you can distribute the remaining estate to the beneficiaries as specified in the Will. If the estate includes property, you’ll need to manage its upkeep to maintain its market value until it's sold. Consulting a probate solicitor can help you ensure everything is handled correctly.
Obtaining probate with a Will typically takes around 8 to 12 weeks. This duration can be extended if there are complications like contested Wills or complex estates. Once probate is granted, administering the estate, including selling any property, might take several more months. It's essential to consult a probate lawyer to streamline this process and manage any potential issues.
After probate is granted, you can start administering the estate. This involves paying off debts, distributing assets to beneficiaries according to the Will, and managing any remaining financial affairs, such as selling property. Maintaining regular communication with beneficiaries ensures transparency and smooth administration. A probate lawyer can offer guidance throughout this process to help you ensure compliance and efficiency.
Executors typically can't access the deceased's bank accounts until they’ve secured a grant of probate. This document is essential as it officially gives them the authority to manage and distribute the estate, including dealing with financial accounts.
That said, some banks might allow executors to withdraw funds for immediate expenses, like covering funeral costs or paying urgent bills, even before probate is granted. To do this, the executor usually needs to provide certain documents, such as the death certificate and proof that they are the appointed executor.
It's always a good idea for executors to check directly with the bank to understand their specific rules and requirements. If you have questions or need guidance on how to proceed, our team at GloverPriest is here to assist you.
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