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Osborne Morris & Morgan > News and Articles > Probate & Power of Attorney > Is there a time limit to apply for Probate?

Is there a time limit to apply for Probate?


Posted on 26 Oct 2019, in Probate & Power of Attorney
 

Probate with law of the instrument One of the questions that we are often asked is whether there is a time limit if you are applying for Probate for someone’s Will following their death. This is a reasonable question. After all, many legal processes do have strict time limits.

Probate is a complex business, however, and the answer to this question is not a simple one.

What is Probate?


Probate is the term used for the process of obtaining the legal right to deal with a deceased person’s estate and affairs. If you are named as an Executor in the Will, you have both the right and the duty to distribute bequests as directed in the Will and to settle any legally required payments, such as Inheritance Tax.

However, the process of Probate is necessary to determine whether the Will is valid before permission to act is given. This can typically take between four and eight months, depending on a number of factors, although it can be less in the case of a very simple Will. In general, Probate takes longer if Inheritance Tax is payable than if not.

There are some cases where Probate is not required. This can apply, for example, if the value of the estate is low and everything is being left to the person’s spouse. However, it is essential to check whether this is the case and a Probate specialist will be able to help you with this.

Is there a time limit?


There is no time limit in applying for Probate. Unlike some legal processes, such as applying for compensation, your application will not be disqualified because it is late. Nor will you be penalised or fined for late application.

However, this does not mean that delay is necessarily safe. There are two reasons why it might be advisable to apply for Probate at the earliest possible opportunity.

Time limit if Inheritance Tax is payable


If the estate being left in the Will is substantial enough to be liable for Inheritance Tax, this does have a strict time limit. Inheritance Tax must be paid within six months of the person’s death, regardless of what stage you have reached with Probate. Failure to meet this deadline may result in financial penalties.

In addition, there may be a time limit for filing Inheritance Tax returns. This depends on which form is required. The ‘longer’ Inheritance Tax Return Form IHT400 must be filed within one year of the person’s death.

The ‘shorter’ Inheritance Tax return Form IHT205 has no time limit. Theoretically, you could leave it years before you file it, but the Will cannot be considered settled until this step has been taken, and the beneficiaries may choose to take action if you delay the process unreasonably.

Possible consequences of delaying Probate


Until a grant of Probate has been made, you as the Executor have no authority to distribute any of the bequests to the beneficiaries. In many cases, the Executor is also a beneficiary. If this is true of the Will that you are acting for, this means that you will also have to wait to receive your bequest.

Even if this is not the case, you have a duty to act in the interest of the beneficiaries. If they feel that you are causing unreasonable delay in applying for Probate, they may apply to have you replaced as Executor, and the possibility cannot be ruled out that they may sue you for withholding their property.

What is the procedure if there is no Will?


If the person has died Intestate, i.e. no Will has been made or the Will has been declared invalid, there is no Probate as such, but it is still necessary to distribute the estate among the appropriate people.

In this case, the deceased person’s family can apply for an Administrator to be appointed. This will most typically be the next-of-kin, but a request can be made for a solicitor to be appointed instead.

The Administrator’s role is similar to that of an Executor, except that, instead of the estate being distributed according to the terms of the Will, it must be distributed according to laws of intestacy. There is no formal time limit to apply for an Administrator, but the same timetable applies if the estate is subject to Inheritance Tax, besides the obvious desire of the heirs to finish the process.

When should I ideally apply for Probate?


Applying for Probate is not a fast process, even in the best cases, and theoretically it would be ideal to start the process as soon as the person has died. In practice, of course, this may be the last thing that you want to think about in the days following the death.

That is completely reasonable, and it is important that you give yourself space to grieve properly. However, it would be as well not to delay the process for too long. If the Will is held by a solicitors’ practice, it would be advisable to inform them straight away, which will allow them to make preparations. If the application process then starts soon after the funeral, it will not only ensure that Probate is granted as early as possible, but also help you start to move on and achieve closure.

An application for Probate has to follow the correct procedure, and it is vital to ensure that you have all the documents ready. A Probate specialist will guide you through this and help ensure the process runs smoothly.

How do I go about applying for probate?


Probate is a complex procedure which involves a considerable amount of work and it can very easily go wrong. For this reason, most people choose to instruct a specialist Probate legal advisor to carry out some or all of the work on their behalf.

At Osborne Morris & Morgan, we can either help you get the Grant of Probate, or we can administer the whole process, including paying bills and transferring assets to the beneficiaries.

We offer a fixed fee initial appointment for £225+vat, which covers a discussion of what needs to be done and a follow-up letter. You can then decide whether you would like us to help you apply.

To book your initial appointment with our Probate specialists, please call us on 01525 378177 or you can get in touch with us online.

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