What Is Probate And How Does It Work?

sarah ryan
Sarah RyanAccount Manager @ Lawhive & Non-Practising Solicitor
Updated on 5th June 2024

Losing a loved one is always difficult, and dealing with their estate as an executor or administrator can add to the stress and confusion of an already challenging time.

However, understanding probate and the probate process is important to make sure that the deceased person's assets are distributed according to their wishes.

what-is-probate-and-how-does-it-work

If you're feeling overwhelmed and unsure about where to start, you're not alone. Many people are new to probate and find it complex and daunting.

This article will guide you through what probate is, why it is necessary, and how the probate process works, from applying for a grant of probate to distributing the estate.

What is probate?

Probate is the legal process of administering the estate of a deceased person, ensuring their assets are distributed according to their will or, if there is no will, according to the laws of intestacy.

How does probate work?

To help you understand probate in more detail, here's a step-by-step guide on how the process works:

Determine if probate is needed

The first step in the probate process is to find out if probate is needed. To do this, you should check if the deceased's assets are solely owned or jointly owned.

This is important because jointly owned assets typically do not require probate.

You should also determine the value of the estate. Small estates may not need probate if the value is below a certain threshold.

Locate the will

The original will is an important document in the probate process.

You should locate it and ensure it is the most recent version. You should also check that it is legally valid (i.e. that it is signed and has been properly witnessed).

The will will name the executors of the estate, who are responsible for applying for probate.

Apply for a Grant of Probate or Letters of Administration

If there is a valid will, an executor needs to apply for a Grant of Probate, which gives them the authority to manage the estate.

Or, if there is no will the closest living relative to the deceased can apply for Letters of Administration.

Applying for a Grant of Probate or Letters of Administration involves completing the relevant forms and sending them to the Probate Registry along with the original will, death certificate, and probate fee (if applicable).

Value the estate

To value the estate you should identify all assets and liabilities (i.e. debts).

This process may involve getting professional valuations for property and gathering financial statements for bank accounts and other financial assets.

Pay Inheritance Tax

Not all estates are subject to Inheritance Tax, so executors should check if the estate exceeds the inheritance tax threshold after valuing it.

If inheritance tax is due, this should be paid and the relevant forms completed.

This is an important step in the process as probate won't be granted until it is done.

Receive the Grant of Probate or Letters of Administration

Once the Probate Registry is satisfied with the application and the inheritance tax is paid, they will issue a Grant of Probate (or Letters of Administration if there is no will).

Once probate is granted executors have the authority to administer the estate. This may include:

  • Transferring ownership of assets from the deceased to the estate.

  • Paying off debts from the estate's assets.

  • Distributing the remaining assets to the beneficiaries as outlined in the will or according to the rules of intestacy.

Once this is done, executors should prepare a final account detailing all assets collected, debts paid, and distributions made to close the estate.

How does probate work with international assets?

Probate can become more complex when the deceased owned assets in multiple countries.

The process typically starts with obtaining a primary Grant of Probate in the UK, followed by dealing with local probate requirements in each foreign country where assets are located.

However, it is a good idea to seek input from a wills, trust, and probate solicitor in these instances for personalised assistance with international probate.

Do you always need probate?

Not always. Probate is typically needed if the deceased owned property or significant assets in their name alone.

If assets are jointly owned or if the estate is small (like an excepted estate), probate may not be necessary.

How do I apply for probate?

To apply for probate, you need to apply to the Probate Registry, including a completed probate application form, the original will (if there is one), and the death certificate.

You may also need to pay a probate fee of £300 if the value of the estate is over £5,000.

What is a Grant of Probate?

A Grant of Probate is a legal document issued by the court that gives the executors named in the will the authority to manage and distribute the deceased's estate according to their will.

Who can apply for probate?

The executor(s) named in the deceased’s will can apply for probate.

If there is no will, a close relative (usually next of kin) can apply to be an administrator of the estate.

How long does probate take?

The probate process can take anywhere from a few months to over a year, depending on the complexity of the estate and whether there are any disputes or complications.

You can track the progress of a probate application in the UK using the HM Courts & Tribunals Service online platform.

Can I handle probate myself, or do I need a solicitor?

You can handle probate yourself if you are comfortable with the process and the estate is straightforward.

However, for more complex estates or if you prefer professional assistance, you may choose to hire a probate solicitor.

What happens to debts during probate?

All debts of the deceased must be settled before the estate can be distributed. The executor is responsible for identifying and paying any outstanding debts from the estate's assets.

Can beneficiaries challenge the probate process?

Yes, beneficiaries can challenge the probate process if they believe the will is invalid or the executor is not fulfilling their duties correctly.

What if there are disputes during probate?

If disputes arise during probate, executors and beneficiaries should carefully review the will, any codicils, and other documents to understand the intentions of the deceased and the legal standing of all parties involved.

In some circumstances, it may be wise to seek legal advice to clarify any ambiguities and understand the rights and responsibilities of all parties involved.

Often, disputes can be put to bed through open communication, however, if alternative dispute resolutions fail, parties may need to resort to litigation which involves filing a claim in the probate court.

If you find yourself involved in a probate dispute, seeking professional legal assistance is essential. Lawhive’s network of experienced probate solicitors can guide you through the process, offering expert advice and representation to resolve disputes efficiently and fairly. Contact us today for more information and support.

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