Published 25th March 2020 | Probate & Power of Attorney

How do I apply for Probate?

If you have been appointed as the Executor of a Will made by someone who has just died, you will probably have to apply for Probate before any assets can be distributed. In certain cases, this is not necessary, but it is always best to check whether you need to go through this process. 

What is Probate?

This is the term for the legal processes by which the assets specified in a Will are distributed to the beneficiaries or to any creditors of the estate. This should be overseen by the Executor, but it is necessary first to obtain permission for Probate.

This is in the form of a Grant of Probate, which is a document authorising you to settle the estate. The person named in the Grant, normally the person named in the Will as Executor, has the right to close bank accounts held by the deceased, pay any debts or taxes outstanding and distribute the remaining assets as directed in the Will.

If the deceased person is intestate, the process is different. This may be either because they have not left a Will, or because the Will has been ruled as invalid due to some irregularity. If you wish to be able to manage the person’s assets in this case, you must apply to be appointed as Administrator of the estate. This is also the case if there is a Will, but no Executor is named or available.

Is there a time limit for applying for probate?

In strict legal terms, there is no time limit for applying for Probate, and you will not be legally penalised for any delay. However, there are compelling reasons for applying as early as possible.

Firstly, if the Will is subject to Inheritance Tax, it must be paid within six months from the date of death, and financial penalties could be imposed if this deadline is not met. If Probate has not been granted within this time, you may need to pay the tax out of your own pocket, although you will be able to recover it once Probate has been granted. There may also be a time limit for filing Inheritance Tax returns. Even if this is not the case, the Will is not settled until this is done.

Secondly, you will be unable to distribute bequests to the beneficiaries until Probate is granted. You may be a beneficiary yourself, but even if not, the beneficiaries could sue you or have you replaced if they feel you are taking longer than is reasonable to obtain Probate.

Check whether Probate is required

There are cases in which Probate is not required for a Will, which makes the process quicker and simpler. One case is where all assets, whether property, cash or shares, are owned jointly with someone else, this may be the case, for example, with a married couple. The deceased person’s share passes automatically to the partner without Probate.

Another is if the estate consists only of a small amount of money or premium bonds. This is normally the case if the assets are less than £5,000, though some banks and building societies will release a higher amount without a Grant of Probate. It is advisable to check this out with each relevant organisation before starting the process.

What is the process for applying for Probate?

The first step, once you have established that you are entitled to apply for Probate is to obtain valuations of the assets such as property, bank accounts etc.  This will establish whether Probate is likely to be required, as well as whether the estate may be subject to Inheritance Tax. As we have seen, if this is the case it becomes more urgent to proceed quickly.

You can apply for Probate either online or by post, but either way a fee will be payable. You will need to send vital documents, so ensure you send them by a secure system that is tracked and requires a signature on delivery. The death certificate will be returned to you, but you will not get the Will back, so you may wish to make a copy for your own records.

If the Will has been changed or damaged in any way, it is essential to include a letter explaining the reasons for this. Failure to explain this adequately could result in the Will being declared invalid.

Do I need a solicitor to apply for Probate?

Applying for Probate is a crucial legal process, and making a mistake could have far-reaching consequences. While the application system is open for anyone to use, it is advised to use an expert lawyer who specialises in Wills and Probate. The specialist will be able to guide you throughout the process and give you the peace of mind of knowing that the correct procedures are being followed at all times.

If you are the Executor for a Will of someone who has recently died, please get in touch with us, and we shall be happy to answer any questions you might have about applying for Probate.

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