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Do I need a Solicitor for probate?

Posted by Kings Court Trust | 22-Jun-2022 09:42:00

Following a bereavement, there are a number of tasks that need to be completed, which can make an already difficult time even more stressful.

The Executor (if there is a Will) or Administrator (if there is no Will) is responsible for administering the deceased’s estate as per the wishes in their Will. They should consider:

  • Whether probate is needed
  • What’s involved in the probate process
  • Whether a probate Solicitor is required

In this blog, we aim to answer these queries and alleviate confusion around the probate application process.

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What is probate?

Probate is a Latin term meaning to ‘prove’ the last Will and Testament as a valid public document. It could be required when someone passes away.

Probate is commonly referred to as the ‘Grant of Probate’ in England and Wales or ‘Confirmation’ in Scotland. Executors named in a Will can apply for probate. By obtaining the Grant of Probate from the Probate Registry, the Executors have the authority to act in the administration of the estate. To obtain the Grant of Probate, there is a set government fee of £273 for all applications if the value of the estate is £5,000 or over. If the estate is £5,000 or less in value, no fee is payable.

Probate is commonly confused with estate administration. However, probate is just one part of the wider estate administration process, which involves carrying out all of the deceased’s legal and tax affairs. This can include dealing with their assets (including property, shares, and personal possessions), paying any debts, paying Inheritance Tax (if required) and Income Tax, and transferring inheritance to the beneficiaries of the estate. Read more about the difference between probate and estate administration here.

 

Do I need probate?

Probate is required by law when the deceased leaves a valid Will and owns a property in their sole name (including any houses, buildings, or land). However, probate will not be needed if the assets were held jointly as they will automatically pass to the surviving spouse or civil partner. It is also required if a financial institution (such as a bank) requires a Grant of Probate to release funds. The thresholds for requiring probate vary between institutions and are subject to change.

To learn more about UK financial institution probate thresholds, click here.

To summarise, not every estate will need probate to proceed, but every estate does require estate administration. Kings Court Trust offers specialist estate solutions that cover everything from obtaining the Grant of Probate only to full estate administration on a fixed fee. Learn more about our four estate solutions.


Do I need probate if I have a Lasting Power of Attorney?

Probate may still be required regardless of whether a Lasting Power of Attorney (LPA) was granted during the deceased’s lifetime. An LPA grants someone the ability to manage an individual’s affairs and make decisions on their behalf whilst they are alive. A Grant of Probate gives the Executor authority to act on behalf of their estate upon death. Whilst the LPA may well have been held by the Executor of an estate, this must be applied for separately if probate is required.

 

What if the deceased didn’t leave a Will?

If there is no Will, a close relative of the deceased can apply to deal with the estate at the Probate Registry. The legal document is referred to as Letters of Administration, but it gives the individual the same authority as a Grant of Probate and allows them to deal with the deceased’s estate. In these cases, the individual is known as the ‘Administrator’ of the estate.

If there are no family or friends to administer the estate, a professional can be instructed. Once a Personal Representative (the collective term used to refer to Executors and Administrators) has been appointed, the estate must then be administered under the rules of intestacy. As the Personal Representative is personally liable for the correct distribution of the estate, it’s important to ensure that the rightful beneficiaries inherit. Learn more about what happens if someone dies without a Will here.

 

What’s involved in obtaining the Grant of Probate?

Completing the probate application

In England and Wales, the probate application includes completing a PA1P (if there is a Will) or a PA1A (if there is no Will). An Inheritance Tax (IHT) form may also need to be submitted to HMRC. IHT is payable on estates over £325,000 that are not being passed to a spouse, civil partner, charity, or community amateur sports club. Reporting may still be required if the estate is below this threshold. IHT is also not payable on excepted estates; read about the reporting requirements for excepted estates here.

Submitting the application to the Probate Registry

The next step involves sending all the details to the Probate Registry. You can also apply for probate online if you have the original Will, death certificate, and have already reported the estate’s value. If applying online, you will need to send your documents by post after submitting the application.

 

What documents do I need for probate?

To apply for probate, you need:

  • The original Will and codicils (if applicable). Codicils are small amendments to a Will
  • The death certificate, or interim death certificate from the coroner
  • The correct IHT form (if applicable)


Completing a ‘statement of truth’

You will be asked to complete and sign a mandatory statement of truth during your online or postal application, promising that you have been truthful in your application for the Grant of Probate. Failure to complete a statement of truth or errors within it could lead to delays, as the application may be rejected.

How long does a probate application take?

In the best-case scenario, applications usually take up to 8 weeks once submitted. However, it can take longer if there are errors in the application or if the Probate Registry requires any additional information. Additionally, due to COVID-19 there have been ongoing delays to the process due to a backlog of applications at the Probate Registry. Applying online generally takes less time than submitting a paper application.

 

Do I need a Solicitor to apply for probate?

We recommend that you seek professional legal advice, but this doesn’t need to be from a Solicitor. In fact, many Solicitors only deal with a small number of estates each year and therefore do not possess specialist knowledge of this area of the law.

You can also decide to deal with the estate yourself. However, it is a time consuming and labour-intensive process that involves complicated legal work, tax calculations, and extensive paperwork. Executors and Administrators are also legally responsible for administering the estate and will be personally liable for any mistakes or oversights.

Another route you can take is appointing a professional to administer the estate on your behalf. When choosing to do so, we recommend looking for a clear fixed fee based on the amount of work involved, rather than a fee based on a percentage of the estate value.

Click here to download our free 'We take care of estate administration' guide.

Kings Court Trust is an award-winning probate and estate administration specialist. We provide probate and estate administration services to people all across the UK, taking on the legal and financial responsibility when instructed to administer the estate in full. We will take care of all the complicated matters after death so that you can have peace of mind that everything’s under control.

If you need advice on whether probate is needed for a loved one’s estate, Kings Court Trust can offer free, impartial advice. Get in touch with our specialists today on 0300 303 9000 or fill in the form below.

 

Topics: Bereavement, Executors, Grant of Probate, Probate, Wills