Note: the information in this article applies to England and Wales only.
This guide is an introduction to obtaining probate after someone’s
death in order to administer their estate.
When someone dies, their finances, assets and belongings (i.e. their
estate) have to be sorted out and distributed among those who are
entitled to them. The person(s) appointed as executor of the deceased
person’s will must attend to the administration of this, but in order
to obtain the legal authority to do so they must apply to the Probate
Registry for a Grant of Representation. This document provides proof to
the organisations that the executor will be dealing with in the
administration of the estate that they are legally entitled to do so.
Probate is the term for the legal process of establishing the validity
of a will, but it is also used to refer to the administration of the
estate of a deceased person, whether or not they have a will. At least
one of the executors of the estate will have to obtain a Grant of
Representation to gather the assets, pay any outstanding debts and
distribute the remaining estate among the entitled parties.
Normally the deceased will have appointed executors of the estate are
in their will, but if there is no will (i.e. the person died
‘intestate’), it will be the next of kin or the next closest relative
in the following order who is deemed responsible for the
administration: spouse or civil partner, adult son or daughter (or
their children if over 18), parents, brothers or sisters (or their
children if over 18), grandparents, uncles or aunts (or their children
if over 18).
There can be up to four executors, but two is the norm. Only one need
apply to obtain a Grant of Representation.
You don’t need a solicitor to help you apply for the grant (although it
can save you a lot of time and stress during such a traumatic period).
You should be able to do it yourself if the estate isn’t complicated.
Below is some guidance on the application process.
There are three different types of probate or grant of representation,
all of which are applied for using the same process. The first is
probate, which is granted to the executors named in the will. The
second is a letter of administration (with will), which is granted in
cases where someone other than an executor named in the will applies
for the grant (e.g. if the executor is too ill or unable to carry out
the administration), and the last is a letter of administration, which
is granted in cases where there is no valid will. All of these grants
carry the same legal status to allow the executor to deal with the
estate of the deceased.
To apply for a grant (whatever type), obtain form PA1 from Her
Majesty’s Revenue and Customs. On the form you’ll need to list the full
value of the person’s estate – although you may not be able to give
accurate details at this stage. If so, write ‘estimate’. This means
doing a bit of investigation and getting in touch with organistions
with whom the deceased had money saved or invested, or to whom the
deceased owed money. You’ll also need to give valuations for property,
jewellery and other household belongings.
When you send the form to the Probate Registry you’ll need to include a
cheque to pay for the fee (currently £130), a certified copy of
the death certificate (a photocopy is not acceptable), and the will and any
codicils (amendments to the will).
Note that the Probate Registry will not return the will to you as it
becomes a public document once it has been ‘proven’ or declared to be
valid, so it’s a good idea to keep a copy yourself. However, you will
receive an official copy of the will when the grant is issued to you.
Your application will be reviewed and you’ll be asked to attend an
interview. At the interview you’ll be asked to confirm the details of
the estate by swearing an oath. You may be asked some questions
regarding the estate and you’re free to ask any questions yourself.
The whole application process can take a few months. It’s important to
note that inheritance tax must be paid within six months after the end
of the month in which the person died, and normally it must be paid at
least in part before the grant is issued. To work out what needs to be
paid, obtain forms D18 and IHT200 from either the Probate Registry or
Her Majesty’s Revenue and Customs and send them to Her Majesty’s
Revenue and Customs.
When you’ve received the grant (and it’s best to get several certified
copies of it), you can then apply to banks, building societies,
pensions providers and other financial institutions with whom the
deceased had money saved or invested to request that the assets are
released. You’ll also need to contact organisations to whom the
deceased owed money in order to pay them back. It can be quite a
time-consuming process, and you are allowed to claim expenses from the
person’s estate for carrying out the work, but you can’t charge for
your time involved.
There are some cases in which a grant is not required, for example if
all the deceased’s assets are held in joint names with a surviving
partner or spouse, or if the estate is very small and no inheritance
tax is due (some organisations will release funds of up to around
£5,000 without a grant). You may want to have a brief
consultation with a solicitor to obtain advice before you proceed with the
application for a grant of representation.
Before you make the decision to take on this large task yourself,
consider the advantages and disadvantages of employing a solicitor to
do so – it could save you a great deal of time and effort, and perhaps
money. For example, the solicitor’s fees can be charged to the estate,
but if you were taking care of the probate yourself you wouldn’t be
able to claim for your time – this could be an issue if you have to
take time off work. You also wouldn’t have to attend an interview at
the Probate Registry, and the process is often quicker as solicitors
are used to dealing with probate and can easily handle issues or
complications should any arise. Also, the probate fee is often lower
when an application is made through a solicitor. Weigh up these factors
before deciding how you want to proceed.