When a person dies, it is required by law that all of their personal affairs must be put in order. This is known as ‘Probate’ and includes ensuring that their estate has been finalised. The person who finalises their estate is known as their Executor. However, the executor only has the right to access the deceased’s estate once they apply.
In this guide, we will explain what probate is, what the purpose of it is, how long the probate process typically takes in the UK and why probate is necessary following the death of a loved one.
What is Probate? Why is it necessary?
Probate (also known as ‘Confirmation’ in Scotland) is the legal process of executing a will and settling a deceased’s estate.
It is important to know that the term ‘estate’ does not simply refer to any property the deceased owned, but also includes their possessions, their cash holdings and any land they may have owned, as well as any financial obligations they had, including the repayment of loans, child maintenance and the like.
The purpose of probate is to give the executor the legal right to handle the deceased’s estate and to make executive decisions on their behalf. They are also known as Personal Representatives.
What Does Probate Do?
Probate allows the personal representative to do any of the following:
- Finalise all bills and close the deceased’s accounts
- Settle unpaid debts
- Sell or transfer property owned by the deceased
- Liquidate or gather assets in all their forms
- Calculate and pay the Inheritance Tax
- Pay any remaining income tax if applicable
- Distribute the estate as outlined by the will or by the government
Who Can Apply?
Probate is often applied for by the person named as the Executor in the will left behind by the deceased. However, if the Executor has died, an Executor hadn’t been named in the will or there was no will, the following people can apply for probate instead:
- The deceased’s spouse. This can be done regardless of if the couple were separated at the time of death
- Children of the deceased
- Other close family members
If you believe the person who has applied for probate is not fit for the role, you can contest it. You can also contest a will if you have a valid reason, but this should be done with the advice and aid of specialist solicitors. You should be aware though that, if you contest a will and take it to court without a reasonable chance of winning, there is a good chance you will be wholly liable for the cost of taking such action, including the costs of the other side and the court costs.
Applying for Probate
The person who has right to apply for probate (those named the executor or a close living relative) can apply online through the government website, or can hire solicitors to do so on their behalf. If there is no will, the process is similar, but instead of probate, you would instead apply for what are known as Letters of Administration.
When you apply, you will need the following information to send in either online or through post:
- The original Will
- The original Death Certificate or Interim Death Certificate
- An estimate of the estate’s value
You will also need to fill out a few forms. Which forms will depend on where the deceased lived in the UK. For example, if they lived in England or Wales, you will need to fill out the PA1P application if they had a will, or the PA1A application if they did not. In Scotland, these forms are known as C1 and C5.
Once you have applied, you will need to send the original documents to the local Probate Registry, along with a fee of £215 if the estate’s estimated worth is greater than £5000. If it is under £5000, there is no fee.
When is Probate Not Necessary?
Probate isn’t necessary when all of the deceased’s assets are in a joint account with their living spouse. Probate is also not necessary if the estate left behind is nominal, or the deceased did not have any assets to speak of.
How we can help
As always, legal matters that occur when applying for probate and executing a will are best done with the help of solicitors.
At The Inheritance Experts, we work with law firms who specialise in handling wills and probate. This means they are well-placed to help you through all stages of the process.