Are you handling the affairs of someone who has passed away and need help understanding the probate process? Read on for our detailed probate guide covering all of the commonly asked questions.
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.
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.
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:
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.
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.
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.
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.
To apply for a Grant of Probate, you will need:
A PA1P (if there is a Will) or PA1A (if there is no Will)
An Inheritance Tax form
This may not be needed if the estate is low value or meets the excepted estate requirements.
A copy of the death certificate
The original Will and any codicils
This details any additional changes to the original Will.
Depending on the situation, other documents may be necessary when applying for probate. This could include Executor renunciation forms, power reserved forms, a Power of Attorney form, or a certified copy of a foreign Grant of Probate or Will.
The court will not issue a Grant of Probate until HMCTS confirms that the Inheritance Tax has been paid (if necessary). There will be no interest on the Inheritance Tax bill until six months after the death; therefore, although there is no deadline for when probate should be applied for, Executors should ensure any Inheritance Tax payable is dealt with sooner rather than later to avoid additional tax.
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.
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:
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.
Includes collecting in and distributing up to three assets, or transferring them to up to two beneficiaries. An asset does not include property.
£1,495 (excluding VAT & probate fee)Learn more
1. Grant and transfer of property
2. Grant and Trust of property
3. Grant and Nil Rate Band Discretionary Trust
Each option has a fee of £1,995 (excluding VAT & probate fee)Learn more
We will complete the full process of estate administration taking on the legal and financial responsibility to do this. From dealing with all assets (such as property, shares, and personal possessions), paying debts, paying any Inheritance Tax and Income Tax, and transferring inheritance to the beneficiaries of the estate.
From £2,340 (excluding VAT
& third-party costs)