A Guide to Probate
What is Probate
When a person dies, their affairs might need to be dealt with. This is called 'administering the estate'.
If the person who has died made a will, one or more people are usually appointed by the will to act as the executors and these are the people entitled to administer the deceased's estate.
If you are named as an executor in a will you may need to apply for a grant of probate to enable you to administer the estate. A grant of probate is an official document issued by a section of the court known as the Probate Registry. Keith Flower & Company are experienced in obtaining grants of probate and can assist you in this process.
If there is no will
If the deceased did not make a will they are said to have died intestate and this can make process of administering their estate more complicated. An application for a grant of letters of administration (an official document, issued by the court, which allows administrators to administer the estate) will need to be made.
The person to whom letters of administration is granted is known as the administrator. The administrator is the person who has the legal right to deal with the affairs of the deceased and this person is determined by a set order of priority. The administrator will often be a close relative of the person who has died. There may be more than one person who has an equal right to be an administrator. Keith Flower & Company are experienced in obtaining Letters of Administration and can assist you in this process.
Some more legal terms you may come across
Personal representatives (PRs)
This is the general collective name for executors or administrators. If there is more than one personal representative they must work together to decide matters between them. Disagreements between personal representatives can cause expensive delays.
Grants of representation
This includes grants of probate (when there is a will) and grants of letters of administration (when there is no will). Often people just refer to probate even if there is no will.
When a grant of representation is needed
A grant of representation is not always needed, for example, if the person who died:
Some financial organisations may require a grant before giving you access even to a small amount of money
Usually, a grant of representation will be needed when the person who has died left:
How to get a grant
If you are entitled to act as a personal representative of a person who has died, you can ask Keith Flower & Company to apply for a grant of representation on your behalf.
Responsibilities of personal representatives
Personal representatives must ensure that the estate is administered correctly. If there is a will, the personal representatives must ensure that the wishes of the person who has died, as set out in their will, are followed. If there is no will, the personal representative must distribute the estate in accordance with the rules of intestacy (set out in the Administration of Estates Act 1925). Keith Flower & Company can explain these rules and assist personal representatives to properly discharge their duties.
Personal representatives are also responsible for ascertaining if inheritance tax is payable as a result of a person's death. If tax is due, the personal representatives are responsible for paying the tax. Whether inheritance tax is payable can depend on:
how much the property and belongings of the deceased were worth at the date of death;
the value of any gifts that they gave before they died, and who they gave these gifts to;
the value of certain trusts from which the deceased benefited; or
which people benefit under the will or under the rules of intestacy (the beneficiaries).
You can find out more by looking at the HM Revenue & Customs website at www.hmrc.gov.uk or by asking Keith Flower & Company.
Dealing with the affairs of someone who has died can take a long time. It is not unusual for it to take up to a year, perhaps longer if things are not straightforward. Many organisations may be involved in the process, for example, banks, building societies, insurance companies and HM Revenue & Customs.
The estate cannot be dealt with until all claims to it have been received. Individuals have six months from the date when probate was granted to make claims against the estate.
Other things that may affect the time taken are:
whether the financial affairs of the person who died were in order;
what the person who died owned and where it is;
whether the person who died had an interest in a business or a farm;
what the will or the rules of intestacy say;
whether there are any legal disputes (claims against the estate or claims by the estate);
whether inheritance tax needs to be paid; and
making sure that all HM Revenue & Customs files are closed and that matters relating to income tax, benefits agencies and pensions have been finalised.
Arguments between family members, beneficiaries or personal representatives can also delay matters. Any disagreements must be resolved before the deceased's affairs can be settled.