Probate: Where do I start?

If you find yourself in the event of death of a close relative, friend or acquaintance and the subsequent need to manage their assets, you will most certainly be in the position of having to acquire legal right to administrate their estate (which is a legal term indicating property, moneys and possessions). This right, in technical jargon, is referred to as grant of representation or probate, although it may assume a different terminology according to the specific cases.

If you are not familiar with the legal procedures that apply to this circumstance, the situation may probably appear confusing. Taking the matter step by step will definitely help avoiding common mistakes that are likely to be made throughout the process.

The first thing you want to know, in order to take over in the administration of the deceased person’s estate, is wether or not he or she has left a will. In case there is a will this probably means one or more executors have been named, giving them authority to deal with the assets, and they will have the possibility to apply for a grant of probate through the probate registry.

In order to retrieve the will from the Principal Registry you will have to provide a certificate of death of the deceased person and proof of being a named executor, together with a certificate of deposit for the will. Next you will have to complete a probate application form and an inheritance tax form and send in your application. Lastly, you will be required to swear an oath.

All the above may be done personally or with the help of a solicitor. In case there is no will, you will be dealing with an intestate death which means the law will decide who is meant to inherit the deceased person’s estate and administrate it. In such a scenario a close relative is usually able to apply and, at this point, we are no longer speaking of a grant of representation but of a grant of letters of administration instead.

Once the grant is obtained the executor or administrator will have the right to access funds, sort out finances and, also, he will be entitled to collect and partition the deceased’s assets as established in the will. However there are certain cases where a grant won’t be needed in order to be able to administer the estate. This occurs when the deceased had less than £10.000 in total in their bank account or when their property, bank or society accounts were jointly owned by a surviving spouse or civil partner. On the contrary, a conspicuous amount of money, owned land or property, possession of shares or insurance policies together with the lack of joint ownerships, clearly state the need of a grant.

Nevertheless, the executor or administrator must bare in mind no grant of probation will be given before the inheritance tax has been payed. This is usually due when the deceased person’s estate is worth more than £350.000 and the rate of the tax will be of 40% for any sum above that threshold. Although, if at least 10% of the sum is given to charity, the tax rate will be reduced to 36%. Such amount can be paid using the funds from the estate.

Once in possession of the grant, the executor or administrator may collect the estate’s assets by sending a copy of the grant to the organizations holding them, pay any debts the deceased might have contracted and distribute the estate to the beneficiaries as established in the will or, in absence of the latter, according to law. To give any possible existing creditors the chance to claim what they may be owed, it would be beneficial to place a notice in the Gazette before distributing the assets, this way the executor or administrator will be relieved from any responsibility of debt
towards them.

It is very important to keep in mind that there is no obligation to act as an executor, even if you are specifically named in a will, and that a grant of representation can always be stopped through what is known as a caveat. Such a stop may be required if there is a dispute over the application for representation and usually lasts six months.

For more detailed information and useful links go to https://www.gov.uk/wills-probate.

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