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When there's a will there's a way - Probate explained

When there’s a will there’s a way – Probate explained

“In this world nothing can be said to be certain, except death and taxes.” – Benjamin Franklin

This is the famous cynical and fatalistic proverb by Benjamin Franklin which draws upon the inevitability of death and taxes. I’ll leave the latter for another time, which brings me to a rather unsettling topic – death.

When a loved one dies we all have a mixture of emotions and thoughts and, probably, the last thing we want to think about is dealing with all their belongings. But it is important to understand the process in dealing with a deceased’s estate. The legal process for dealing with the estate of someone who has passed away is called ‘Probate’.

What is probate?

Probate is the legal and financial processes involved in dealing with the property, money and possessions of a person who has died. If the deceased had a valid will, they may have named someone to deal with their assets. This person is the executor, or executrix if they are female, and they will have the responsibility of administering the estate. If there is no will, then the rules of intestacy apply, which complicates the process.

When there’s a will

Even if you are named in the will as the executor, you will usually need to obtain a Grant of Representation. This is the legal document issued by the Probate Registry which grants you the right to administer the estate. If there’s a will and you are the named executor in the will, you will be given a Grant of Probate. The executor (or executrix) uses the grant to show that they have the right to access the deceased’s bank accounts and all their funds, manage the finances and collect and distribute the deceased’s assets, as per the instructions in the will.

When there’s no will

When there’s no will, the deceased is said to have died intestate. This complicates the process. If the deceased didn’t have a will, then it will usually be up to the spouse or next of kin to administer the estate. They will still have to apply for a Grant of Representation, but the grant given is called a Grant of Letters of Administration.

How do I apply for a Grant of Representation?

Before you can apply for a Grant of Representation you will need to do some number crunching. You need to assess the size and composition of the estate. You can value the property yourself, but getting a professional valuation from an estate agent or a surveyor is usually best as it will make dealing with HMRC that much easier.

Once you’ve done a (hopefully accurate) valuation, you need to complete a ‘Probate application form’ (Form PA1) using the Guidance Leaflet PA1A to help you out. At the same time you will need to complete a tax form, even if no inheritance tax is owed, to HMRC. You can read Rocket Lawyer’s guide on Inheritance tax to help you out. Use Form IHT400 if inheritance tax is owed and Form IHT205 if no tax is owed.

Once the forms are completed, they should be sent together with the original will (if there was one) and death certificate to the Probate Registry. Once submitted and accepted by the Probate Registry, you will be contacted to swear an executor’s oath stating that the details you have provided are accurate and correct. Probate fraud is extremely serious. The oath can be done at your nearest Probate Registry or local solicitor’s office.

What happens once I have the Grant of Representation?

Once you have the grant, the last task is administering all the deceased’s assets. This means gathering all the assets you have identified and distributing them as directed in the will. Once probate has been granted, most institutions will release all the funds without delay. You may need to send them certified copies of the grant, which is why it’s best to ask for copies from the Probate Registry when they issue the grant. This will usually incur a small fee.

Summary of the probate process

If you’re new to wills then I can understand that there is a vast amount of information to absorb with lots of new terminology, forms and processes. Probate can be an extremely long and mundane process, which is why I’ll post this quick summary.

  • Step 1: Establish who the executor is, or if there’s no will, go by order of priority under the rules of intestacy. We have a guide on Intestacy rules too.
  • Step 2: Assess the estate as well as compile a list of all the assets, including money and debts.
  • Step 3: Fill out all the necessary forms as mentioned above and apply for a Grant of Representation. Remember to pay any inheritance tax due!
  • Step 4: Swear an oath and receive the grant in exchange.
  • Step 5: Administer the estate and assets. It’s usually best to open a special executor’s bank account separate from your own so you can put all the funds in. Remember to send copies of the grant to any asset holders so you can receive them.

You can read more about Probate in Rocket Lawyer’s legal guide and create your Last will and testament.

Alan Cheung

Alan Cheung

Paralegal at Rocket Lawyer
Alan is a paralegal at Rocket Lawyer UK. He has a law degree from the University of Westminster and has recently graduated from the Legal Practice Course at BPP Law School. He is passionate about employment law and intellectual property and strongly believes in accessible and affordable legal services.
Alan Cheung

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