What is Probate? | Kings Court Trust

What is probate?

The term ‘probate’ refers to the Grant of Probate, which is a legal document that Executors may need to obtain when administering the estate of someone who has passed away. This process is referred to as ‘Confirmation’ in Scotland.

What is a Grant of Probate?

A Grant of Probate provides the Executor with the legal authority to carry out estate administration, which includes dealing with all of the deceased’s assets, legal affairs, debts, and more. Therefore, probate is one part of the wider estate administration process; the term is commonly misused by many to refer to the entire process of dealing with the estate of someone who has passed away. Whilst probate isn’t always required, an estate must always be administered.

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When is probate required?

Whether or not probate is required does not depend on whether there’s a Will or not. Probate is usually required if the deceased owned assets or property in their sole name. In this case, a Grant of Probate is often needed in order to sell or transfer the property and release funds to the beneficiaries of the estate. However, if assets were held jointly, they will automatically pass to the surviving joint owner. Additionally, a Grant of Probate may not be required if:

How much money does an estate need to have before probate is required?

This depends entirely on the financial institution that the deceased held money with.

The probate threshold is independent to the bank or building society, and it is subject to change by each individual institution.

Typically, the probate threshold will vary from £5,000 to £50,000, although some banks will decide on a case-by-case basis. It is best practice to check whether you need probate to access funds with the relevant financial institution at the time.

Do you have to pay for probate?

The set government fee for applying for a Grant of Probate in England and Wales is £300 for estates over £5,000.

For estates valued at £5,000 or less, there is no fee to pay. Within this £300 fee, you will receive one copy of the Grant, but it is recommended that you purchase more at the time of application for a small fee.

Additionally, if you choose to instruct a professional to apply for probate on your behalf, there will be additional fees to pay, but these vary between each provider. It’s worth obtaining multiple quotes so that you can compare them and ensure that the fee is fixed to avoid any unexpected costs.

How long does probate take?

You should receive the Grant of Probate within 16 weeks of submitting an application (according to GOV.UK as of 5th June 2022).

However, this time can be increased by errors on the application (a ‘stopped’ Grant) or delays from HM Courts and Tribunals Service (HMCTS). Professional providers are finding that Grants are often taking longer than 16 weeks as suggested by GOV.UK. Generally, it is quicker to apply for probate digitally rather than via a paper application, but in order to do this it must comply with HMCTS' rules for digital application.

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Who deals with probate?

When the deceased has left a Will, they should have appointed an Executor to administer the estate, including obtaining probate (if required). There may be more than one Executor administering the same estate, but only one needs to apply for the Grant. The other Executors will have ‘power reserved’, which means that they remain as Executors but do not need to be involved with the probate process unless they wish to. Alternatively, they can renounce their position if they do not want to be involved at all.

If there is no Will, an Administrator will be appointed according to the rules of intestacy. This is usually the next of kin.

The umbrella term for an Executor or Administrator is ‘Personal Representative’. An Administrator has the same role as an Executor, but they will need to apply for Letters of Administration rather than a Grant of Probate. Both documents grant the same legal responsibility to administer the estate.

Can a beneficiary be an Executor?

Yes, the Executor of a Will can be a beneficiary of the estate; it’s very common for the lead Executor to be the main beneficiary, in fact. However, it’s also acceptable to choose someone who is not benefiting from your Will to be the Executor of your estate.

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How soon should I start the probate process?

There is no official time limit in place for how quickly you should apply for probate after a death. However, it’s best to start the process as soon as possible, as this will enable you to begin administering the estate, which could help avoid complaints from beneficiaries that the distribution is taking too long. In some cases, claims could be made against the estate, and the Executor is personally liable for this. Additionally, if Inheritance Tax is payable, it is advisable to pay it by the end of the sixth month after the person's death to avoid interest charges. Inheritance Tax forms must be submitted before probate can be granted.

When should you apply for probate?

First, the death must be registered. Then, all assets and liabilities within the estate should be detailed so that the value can be calculated. If the estate includes a property, this must also be valued, and any gifts made by the deceased should be included in the value of the estate for Inheritance Tax purposes (if applicable). At this point, a Grant of Probate application can be submitted to the Probate Registry.

What documents do I need for probate?

To apply for a Grant of Probate, you will need:

Can assets be distributed before probate?

The estate should not usually be paid out until the Executor has a Grant of Probate and all other necessary tasks have been completed to ensure accurate distribution of the correct assets.

However, if probate is not required, paying beneficiaries should still be one of the last tasks undertaken so that all debts and liabilities can be paid from the estate initially.

It is usually possible to pay the funeral bill from the estate before probate is granted, but if complexities arise, the fee can typically be reimbursed from the estate at a later date.

Can you sell a house before probate?

You may be able to sell a property before probate is granted. However, this is dependent on how the property is owned:

If the property was owned solely, the sale of it cannot be fully completed until probate has been granted, although it can be listed on the market and have offers accepted beforehand.
If the property was held as beneficial joint tenants (with a spouse or civil partner, for example, whose name also appears on the Title Deeds), then the property can be sold or transferred without obtaining a Grant of Probate.
If the property was owned jointly, but as tenants in common with different percentage shares, then probate will be required as the deceased’s percentage will form part of their estate and need to be passed on to their beneficiaries.

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What happens to property when someone dies?

How many copies of a Grant of Probate do I need?

You should acquire a copy of the Grant for each financial institution that the deceased held funds with; multiple institutions may need to see it at once.
At the time of application, extra copies of the Grant of Probate can be purchased for £1.50 each. If you need to apply again after probate has been granted, there will be a £20 fee. This is rare but may happen if one of the Executors who holds power reserved decides to apply for probate themselves.

Do Solicitors deal with probate?

Whilst it’s recommended to get professional legal advice, this doesn’t necessarily have to be from a Probate Solicitor. Some Solicitors only deal with a small number of estates as part of their varied practice, so they may not possess the specialist knowledge acquired through dealing with large numbers of probate and estate administration matters. There are many professional providers that can complete the probate application process on your behalf; this can help give you peace of mind that everything is being taken care of, and some of the liability is taken off your hands.

When instructing professional help, it's highly advisable to source a regulated provider; Solicitors (regulated by the Solicitors Regulation Authority) are just one type of regulated legal services provider. At Kings Court Trust, we are licensed by the Institute of Chartered Accountants in England and Wales, who ensure client protection and the provision of a high-quality professional service to legal services customers.

Alternatively, the Executor can also choose to deal with the probate process themselves, but they should expect a complicated legal process that may require a lot of time and extensive paperwork.

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How much does a Probate Solicitor cost?

Probate Solicitors’ fees are sometimes calculated from a percentage of the estate, generally between 1-5% plus VAT and the probate fee. Other Solicitors may charge an hourly rate, meaning that you only pay for the work that is completed. This can be more difficult to predict, as unexpected delays could mean your fee increases. Some may charge a fixed fee that varies depending on the estate’s size and complexity.

When comparing probate fees between Solicitors and other specialist providers, make sure to check what’s included in each quote and whether there is a breakdown of third-party costs. There is no obligation to use a Solicitor for probate even if they were involved with making the Will.

Due to the various charging methods on the market, it’s difficult to provide a comparison of the likely fees. At Kings Court Trust, we only work on fixed fees for our award-winning probate services; this ranges from £995 to £1,995 (excluding VAT and the probate fee), depending on the level of control the Personal Representative wishes to retain. Alternatively, we can take care of the full estate administration process, including applying for a Grant of Probate. Typically, our average fees are as follows:

A standard estate has an average fee of £4,190. This involves scenarios where no Inheritance Tax is payable and no reporting is required to HMRC.
An intermediate estate has an average fee of £5,603. This involves completing a complex Inheritance Tax return to HMRC with no tax to pay.
A complex estate has an average fee of £7,321. This involves scenarios where the estate is subject to Inheritance Tax and the necessary paperwork must be completed.

Please note that the above quotes are exclusive of VAT and third-party costs (sometimes called “disbursements”). We will provide you with a bespoke quote at the appropriate time based on the complexity of the estate administration and legal work involved.

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