What is Probate?
Regardless of whether a person dies with or without a Will, the Executor(s) or the person administering the deceased’s property must apply to the Probate Registry for ‘Probate’. Probate is the legal right to deal with someone’s property, money and possessions (their ‘estate’) when they die. Probate must be applied for to the Probate Registry, but first, you must check that probate is needed and that you are eligible to apply.
Is Probate needed?
Contact the financial organisations the deceased (for example, their banks, investment providers and mortgage company) to find out if you’ll need Probate to gain access to their assets. Every organisation has its own rules. You may not need probate if the person who died:
- only had savings
- owned shares or money with others – this automatically passes to the surviving owners unless they’ve agreed otherwise
- owned land or property as ‘joint tenants’ with others – this automatically passes to the surviving owners
Making an application
Making an application for probate can be a time-consuming and onerous task, and often when you are not emotionally equipped to deal with it.
Applications can be made either in writing or online. Prior to making the application, you need to estimate and report the estate’s value to find out if there is Inheritance Tax to pay. Using a professional organisation takes away the worry and stress, and in some cases, it can save significant amounts of inheritance tax.
During the application period, you should not make any financial plans or put property on the market. The estate can only be managed when the Grant of Probate has been issued.
Check if you can apply for Probate
Only certain people can apply for probate. Who can apply depends on whether there is a valid will in place. If there is a will, only the named executors can apply. If there is not a will, the closest living relative can apply.
Inheritance Tax (IHT)
Inheritance tax is payable on death on all assets valued above the Nil Rate Band (NRB), currently £325,000. If a main residence is being passed to children, there is an additional allowance of. £175,000 known as the Residence Nil Rate Band (RNRB). There are many other factors to consider making it extremely difficult to calculate accurately the amount of IHT due.
If allowances are not claimed, the HM Revenue and Customs (HMRC) does not contact the executors to advise them that they have overpaid IHT.
Valuing the estate to calculate the inheritance Tax due
When you can apply for probate depends on whether there is Inheritance Tax to pay. If there’s no Inheritance Tax to pay and the person died on or before 31 December 2021, the value of the estate must be reported to the HMRC. If the estate is an excepted estate, then you are not required to send full details of the estate.
If you report the value of the estate online to HMRC, you can apply for probate as soon as you’ve submitted the online form. If you report the value by post, you must apply for probate:
- before submitting form IHT205, if you’re applying for probate online
- at the same time as form IHT205 (post both forms together), if you’re applying for probate by post
If there’s no Inheritance Tax to pay and the person died on or after 1 January 2022, you must provide estimates of the estate’s value as part of your probate application. You do not need to also report it to HMRC.
How to work out the gross value for Probate
Calculate the gross value of the estate for Inheritance Tax purposes and then subtract the value of all the following:
- assets that were owned with someone else (‘joint assets’) that are automatically passed to the surviving owner
- gifts that were made in the 7 years before they died
- assets that were owned abroad (for example, overseas property or money in foreign bank accounts)
- assets held in a trust
How to work out the NET value for Probate
Subtract the value of any debts the deceased had and the cost of the funeral from the gross value for probate. Do not include debts that were owed jointly with someone else. For example a mortgage on a joint property as the asset would not have been included when calculating the gross value for probate.
Probate fees
You may have to pay a fee to apply for probate. Whether you need to pay depends on the value of the estate.
- If the value of the estate is over £5,000, the application fee is £273.
- There’s no fee if the value of the estate £5,000 or less.
We offer a fixed fee of £4,750 + VAT for a simple, non-contentious Probate matter. Contact us to ascertain whether you could benefit from the fixed fee.
Ownership of Assets
If assets are held jointly, they are automatically paid to the survivor on death. You may not therefore need Probate if all the person’s assets were held jointly.
It is important to be aware though that property is particularly at risk of being sold to pay for care fees if it is held jointly. If this is a concern, we have a specialist within our team to assist you.
How can we help you?
If you have any questions regarding Wills, Trusts, or Probate, please get in touch or complete the enquiry form below.
Go to our main Wills, Trusts & Probate solicitors page
Make an enquiry
FAQs Regarding Wills
What is a will?
A will can be described as : “A written legal declaration of an individual’s intentions as to how he or she wishes to dispose of their property after death”.
- It only takes effect on death.
- It is a “living document” so can be changed during lifetime as long as testator maintains mental capacity to do so.
Why is having a Will important?
If you die without a Will, your estate will be dealt with by the strict rules of intestacy, which sets out who inherits from your estate and how much. This means that you will have no control over how and to whom your assets are distributed to.
The rules of Intestacy may not be in accordance with your wishes and someone you did not wish to inherit from your estate may stand to. Equally, if married, your spouse will only inherit a percentage of your estate, whereas you might wish for them to inherit it all.
A Will therefore protects your family and guarantees that parts of your estate are not given to anyone you do not wish it to go to (e.g. an ex-spouse).
Furthermore, having a Will can ensure that your estate is as tax efficient as possible, meaning your family will not have to pay a penny more in inheritance tax than they need to.
What makes a Will valid?
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For a Will to be valid according to English Law it must comply with Section 9 of the Wills Act 1837 which states it shall be executed as follows:
- It must be signed by the testator (or some other person in his presence and at his direction)
- The testator has to sign the Will with his usual signature and any signature may be acceptable as long as it was made with the intention of giving effect to the Will.
- Such signature to be made or acknowledged by the testator.
- In the presence of two or more witnesses both present at the same time, who then each sign or acknowledge their signatures in the presence of the testator (but not necessarily in the presence of each other). This process is known as the “attestation” or “execution” of the Will.
- The witnesses must be able to see the testator sign; therefore, they must not be blind.
- The Will must be dated, either at the beginning or at the end of the Will.
What are some examples of acceptable signatures?
- A Will signed by a mark only.
- An incomplete or indecipherable signature.
- A Will signed by some other person in the presence of and at the direction of the testator.
- In these circumstances it may be signed by the other person with the testator’s name or their own name.
- A Will signed in foreign characters or in shorthand.
- A Will signed with words such as “Mum” or “Your Loving Mother” as long as there is no doubt as to whom the signature belonged.
- Sometimes a hand-written Will may appear on the face of it to be unsigned and therefore invalid. (Wood v Smith [1992]).
What makes a Will Admissible to Proof?
For a Will to be entitled to proof in England and Wales under section 9 of the Wills Act 1837 it shall:
- be in writing – a Will may be in handwriting, but may also be printed e.g. typed or produced by word processor. In fact, “in writing” means any visible form of representing words, including shorthand, Braille and code, provided that the code can be deciphered.
- take a gift of property situate in England and Wales or appoint an executor – The testator must have attempted one or both of these things.
Exception – Guardianship of Minors Act 1971 S 4.
Who can Witness a Will?
Section 15 of the Wills Act 1837 states that the witnesses should not be:
- Beneficiaries named in the Will or;
- The spouses/civil partners of such beneficiaries.
- If someone witnesses a Will and later on marries one of the beneficiaries, this will be acceptable, as they were not married at the date of the Will. If the witness is either a spouse of a beneficiary or the beneficiary himself, then according to the Wills Act, the Will is valid but the gift to the beneficiary will fail.
- Witnesses do not have to be over 18, but they have to be capable of understanding the nature of the document they are witnessing and the implications of it.
What are my responsibilities as a witness?
The witnesses are there to ensure that the testator:
- Is making his Will of his own volition and understands what he is doing.
- The witnesses do not have to see the content of the Will but have to see the testator sign in the presence of him/her self and the other witness and then sign in the presence of the testator.
- Witnesses are bound by law to give the Probate Registry or any other proper authority (e.g. police, Crown Court) any information asked for regarding the execution of the Will. If the witness refuses to give such information they may be subpoenaed to attend and give evidence. If a subpoena is issued and they still do not attend they can be arrested.
Who can make a Will?
- Anyone who has the relevant capacity.
- The test for capacity was set out in the case of Banks v Goodfellow (1870) – The testator must understand;
- The nature of the act (i.e. making a Will) and its effects;
- The extent of the property of which the testator is disposing, although just a broad recollection is enough;
- The claims to which the testator ought to give effect i.e. the persons who are fitting of the testator’s bounty or rather those who ought to receive a benefit.
- What if I am not mentally capable of making a Will?
Statutory Wills – If a proposed testator is not mentally capable of making a Will, then there are provisions under the Mental Capacity Act 2005 and the Court of Protection Rules 2007 which give the Court of Protection (COP) power to authorise a Will made on his/her behalf. In order for a Statutory Will to be made, an application has to be made to the COP.
- Testator must be over 18.
- Can you make a Will if you are under the age of 18?
Privileged Wills – If a proposed testator is 17 or over and is on active military service with the armed forces, then he/she is entitled to make a Privileged Will under Section 11 of the Wills Act 1837 and the Wills (Soldiers and Sailors) Act 1918. This can be made in accordance with a different set of rules, other than those set out in Section 9 of the Wills Act 1837 (e.g. it does not have to be in writing, but any Will made in writing, need not be witnessed).
Can I revoke/cancel my Will if I wish?
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- A will can be revoked (cancelled) during the testator’s lifetime as long as he/she has the requisite capacity to revoke it.
- A will may be revoked by:
- Marriage (unless made in contemplation of marriage).
- Destruction.
- Later Will or codicil.
- Dependant Relative revocation.
- Revocatory Instrument.
Some Important Keyword Definitions:
- A testator (male) / testatrix (female) who has made a Will or given a legacy.
- A beneficiary is someone who receives something in a Will.
- An executor is someone who is named in the Will as responsible for dealing with the estate.
FAQs Regarding Probate
What is Probate?
In English Law, Probate is the word used to describe the legal and financial processes involved in dealing with the assets of a person who has died.
Before the executor of the Will can claim, transfer, sell or distribute any of the deceased’s assets, they may have to apply for a Grant of Probate (a legal document which gives them special legal authority to deal with the deceased’s estate).
How Does the Probate Process Work?
The exact probate process can vary depending on the instructions left in the Will and the assets, creditors, and beneficiaries the estate has.
The basic process for an executor is:
- Gather the full details of the estate’s assets and debts.
- Apply for Grant of Probate (authority to distribute assets from the deceased’s estate).
- Complete an inheritance tax return and pay any tax due.
- The receipt of a Grant of Probate.
- Repay any of the deceased’s outstanding liabilities.
- Distribute the rest of the estate according to the instructions left in the Will.
How Long Does Probate take?
For most estates, this will take around a year. However, the answer really depends on the size and complexity of the estate (i.e. if there are any disputes between the executor, beneficiaries, creditors, or HMRC).
Who Can Apply For Probate?
Only the executor can apply for probate to administer the deceased’s estate.
What if the deceased does not have a Will?
If someone dies without a Will, they are said to be ‘intestate’. The rules of Intestacy will dictate who can apply for a Grant of Administration to administer the estate instead. The then appointed administrator must distribute the assets from the deceased’s estate in accordance with The Intestacy Rules.