Bereaved family members and named Executors in Wills may not always know where to start with the process of Probate. At Farleys, we’re asked all types of questions around Wills, Trusts, and Probate and have over 50 years of legal experience in this area.
On the Internet there can be a lot of misinformation floating around. So, we’ve compiled this list of common questions around Probate to help you sort through the process.
What is Probate?
Probate is the legal way for the Executor of the Will to settle the deceased’s finances including any debts or assets before distributing to any remaining funds to the named Beneficiaries.
The Executor is a named person in the Will designated to handle the estate. Examples of an Executor include a spouse, a partner, an adult child, a trusted friend, or a Solicitor or legal firm.
An Executor will need to apply for a document called a Grant of Probate in order to prove they have the legal right to claim any assets held by the deceased. Only the named Executor in the Will has the legal ability to apply for a Grant of Probate.
Do I need to apply for Probate?
In the majority of situations the named Executor in the Will must apply and be accepted for a Grant of Probate in order to have all the legal rights to handle, manage, and distribute any assets held by the deceased.
A Grant of Probate is typically required if there is at least one property or piece of land held only by the deceased. Complicated Wills and Estate Trusts almost always require a Grant of Probate to ensure the right person has been bestowed the legal right to handle the Estate.
Keep in mind, banks or investment brokers may require a Grant of Probate to close the account and distribute holdings.
The deceased left a Will
In order to apply for Probate, you’ll need to be the named Executor in the Will of the deceased.
The Courts will only recognise up to four named Executors on any application for a Grant of Probate.
Then you’ll need to apply for a Grant of Probate either using a Solicitor like Farleys who offer a Probate service, filling out a PA1P form and mailing it to the HM Courts and Tribunals Service, or by applying directly on the gov.uk website. Be sure to pay extra for tracking to ensure you have a record of your documents being sent and/or received!
If you opt to use the online service you’ll need to be the Executor and must have the original Will, the original death certificate, and you must’ve already reported the Estate’s value to HMRC.
The deceased did not leave a Will
If there is no Will the rules of Intestacy will apply. These rules are complex and detail the people allowed to apply for the Grant of Letters of Administration and claim responsibility for administering the estate. Examples of such people are spouses (even if separated), adult children of the deceased or more remote family members.
Under the rules of Intestacy, an Administrator can handle the Estate.
This next part can be confusing to some. You’ll still need to apply for a Grant of Representation from Court as an Administrator. The only difference is you’ll be given a document called a Grant of Letters of Administration (instead of a Grant of Probate) to handle the estate.
The document serves a similar purpose but is designated differently because of the difference in rules and laws that specifically apply to a Will or to Intestacy.
The process for applying for Letters of Administration is similar to if there is a Will. If there is no will you may want to rest easy knowing a Solicitor can be there to advise and help you through the entire process. Or you may decide to do it yourself, for this application you’ll have two options either paper or an online form. If you fill out a paper form be sure to fill out the PA1A and mail it in with the required documents.
This should go without saying but always, always, always, pay for tracking on any letters, paperwork, or documents you send to the government — for your own protection and piece of mind!
When don’t I need to apply for Probate?
In England and Wales, there are very few instances when you won’t need to apply for Probate. We see three main scenarios where a Grant of Probate may not be required. Please seek the advice of a Solicitor to be 100% sure!
Generally speaking, if the combined total of all assets is less than £5,000 you may not need to apply for Probate. Additionally, the application for a Grant of Probate for Estates under £5,000 is Free if you apply directly on the gov.uk website.
But, this isn’t a hard and fast rule, and we recommend you consult with a Solicitor to make an accurate decision on your specific situation.
Jointly Held Assets
According to the government, you may not need Probate if the person who died had only jointly held assets. Typically, this applies to married couples or business partners or other situations where there is jointly owned land, property, shares or money.
If the deceased held any assets jointly those will automatically transfer or pass ownership to the other named surviving owners.
Savings and Premium Bonds
You may not need probate if the deceased person’s only assets were savings or premium bonds. Keep in mind, while the government doesn’t require it, the deceased person’s Bank may require a Grant of Probate to release the funds.
Generally speaking, small amounts may be released at the discretion of the bank without a Grant of Probate, but large amounts, generally in excess of £10,000 for example, may require one.
Each Bank has its own terms and conditions, and rules around accounts and assets. For this reason, we recommend you check directly with the deceased’s Bank to discuss and outline all of the documents you’ll need to claim the assets.
If you think you may not need to apply for Probate, it’s always a good idea to double check and consult with a specialist Wills, Trusts, and Contentious Probate Solicitor just to be sure! At Farleys Solicitors, we aim to provide the best services for our clients, whether you have a Will that needs updating, need advice on how Probate works, or even need us to handle Probate for you.
If you think you need to speak with one of our specialist Solicitors about any of our services please give us a call on 0845 287 0939, by our online chat, or email. We’re here to help!