Probate

If you have been appointed as the executor of somebody’s Will, you will be responsible for administering their estate. This winding up process generally has three main steps:

All estates are different, and you may feel confident managing all or part of it yourself. If you’re responsible for administering a reasonably simple estate, you may decide that you only need support from a solicitor to apply for a Grant of Probate and that you can then go on to manage the distribution of assets yourself.

It isn’t always necessary to apply for a Grant of Probate. Depending on the size and nature of the estate, some financial institutions will allow you to access the accounts of the person who has died without one. This is usually if the balance of the accounts you wish to access are below a certain threshold.

To find out whether you will need to apply for a Grant of Probate, you will need to speak to the financial institutions where the person who has died held an account. They will tell you whether or not they will need to see a grant of probate before they will release funds.

Generally speaking, if the estate you are administrating is worth more than £15,000–£25,000 you will usually need to apply for probate. You will definitely need to apply for probate if the person who has died owned any property.

‘Grant of Representation’ is the collective term given to the two types of legal grants that need to be obtained in order for you and your solicitor to have the authority to deal with an estate.

In cases where there is a Will, the executor(s) can apply to the Probate Registry for a Grant of Probate. In cases where there’s no valid Will, the personal representatives of the person who has died will need to apply for a Grant of Letters of Administration.

You will usually be unable to fully access or administer the accounts or financial assets of the person who has died until you have received a Grant of Representation.

It can take some time to put together an application for a Grant of Representation. This process includes completing a probate application form and an inheritance tax form, so we need to have a full understanding of the estate of the person who has died before this can be done.

Once all this information has been correctly submitted and any inheritance tax paid, it usually takes between four and eight weeks for a Grant of Representation to be granted.

The Grant of Representation gives you and your solicitor the authority to start administering the estate.

• Any financial institutions, companies or governmental bodies that had a relationship with the person who has died will need to be informed.
• All debts (including inheritance tax) will need to be paid.
• Money owed to the person who has died will need to be collected.
• If the person who has died had a life insurance policy in place, a claim will need to be made on this.
• The final estate, minus the cost of any debt and testamentary expenses, will need to be calculated.
• In cases where there is no Will, all potential beneficiaries of the estate will need to be traced.

It’s impossible to give a quick answer to this. The time this will take depends on so many factors. Some estates can be wound up in a matter of weeks, while others will take several years.

If you’ve been left a specific item or sum of money, you’re likely to receive this more quickly than if you are a beneficiary of the residuary estate. You are a beneficiary of the residuary estate if you’ve been left all or part of whatever is left in the estate once all debts and named legacies have been paid.

Probate is often a very complicated process. In the case of larger estates, or estates that are made up of assets from various sources, it can take a long time to fully assess the administration that needs to be done.

We can’t calculate or distribute the residue of an estate until Probate has been granted, all assets have been collected in (this includes the sale proceeds of any property or other valuables), and all debts, taxes and costs have been paid.

There are all sorts of things that can hold up this process.

Property belonging to the estate will often need to be sold. In these cases, it will not be possible to finish winding up an estate until the sale has completed, any remaining mortgage on the property has been paid off and any sale proceeds have been collected in. This can very much slow down the process, especially if the property takes some time to sell.

You may want to start the sale process as early as possible in order to try and avoid delays later on. It’s fine to start marketing a property for sale before a Grant of Representation has been obtained. However, you won’t be able to exchange contracts or complete the sale until you have the grant and so it’s wise to let potential buyers know about the position from the start.

If the person who died owned assets internationally, this can complicate matters. It is sometimes necessary for us to instruct a consultant who specialises in the relevant country’s law to assist us in assessing, accessing and obtaining the assets in question.

This almost always makes the matter more complex and takes more time to sort out than when all the assets are based in the UK.

If the estate was subject to complicated tax affairs, this can take some time to untangle. Tax may also be a complicating factor if there are difficulties with calculating or meeting the cost of inheritance tax.

The lack of valid Will can also slow the process down. In these cases, we strongly recommend that a professional heir search is conducted. This will ensure that all those who are legally entitled to benefit as per the intestacy rules are identified correctly. These types of searches can take time, especially if the person who died had a large family or family members they’d lost contact with.

We understand you will be eager to receive your inheritance and start benefitting from it. However, we strongly recommend that you do not enter into any binding financial agreements that rely on you receiving your legacy until the money has appeared in your account.

Probate cases can be very unpredictable and it’s impossible to say how long it will take for you to receive your inheritance – or exactly how much it will be – until the estate has been fully wound up.

The threshold over which inheritance tax will need to be paid is currently £325,000. If there is inheritance tax to pay, at least some of the tax bill will need to be paid to HMRC before a Grant of Representation can be obtained.

If there is sufficient money in bank accounts belonging to the estate, banks will authorise this money being released straight to HMRC.

In cases where there is no available cash, it may be necessary to sell property or other valuables in order to meet the cost of inheritance tax. However, you will not be able to complete these sales until you have received a Grant of Representation. In these circumstances the Personal Representatives of the estate may need to pay a portion of the tax yourself or take out a loan to cover it. You will be able to claim this money back from the estate once the Grant of Representation has been obtained.

At Roche Legal we generally provide monthly updates on how estate matters are progressing. If there are any significant developments, we’ll update you as soon as it’s appropriate for us to do so.

You may want to receive updates more regularly (or indeed, less regularly!). Please let us know your preferences and we will contact you according to these.