What you need to know about probate

Probate is the process of dealing with someone’s money, possessions and final wishes after they die. Simon Roberts, Senior Associate Solicitor at DAS Law, answers your important questions.

24th October 2019

Who can carry out probate?

If the deceased left a will, they may have specified the designated executor or executors – these people are expected to “execute” the will, which means they will share out the estate as specified and deal with any related complications, as well as carry out any other final wishes specified in the will. However, you are not legally required to act as executor, even if you are the only executor named in the will.

If there is no executor named, or there is no will, someone must become the administrator of the estate. This will be someone named in the will, or a spouse (even if separated), civil partner or child if no will exists.

The administrator largely performs the same tasks that an executor would, although they often have no will to act upon.

Do they have a will?

It is estimated that only 30% of people have a will, so it is quite possible that the deceased died without one, leaving them what is known as intestate. However, they may well have created one without your knowledge. You should check their paperwork to see if they have a copy of this anywhere.

If there is no will to be found among their personal belongings, they may have kept a copy with their solicitor, or their bank. Alternatively, they may have left a copy with a dedicated will storage service, or with the Principal Registry of the Family Division. You can call the Principal Registry at 0207 421 8509, or write to them at:

The Principal Registry of the Family Division
Probate Department
First Avenue House
42-49 High Holborn
London
WC1V 6NP

In order to obtain a copy of a will or grant of probate you can complete an online and postal search. The GOV.UK website has a section where you can search probate records for documents and wills. The site also links to the relevant forms or online process to obtain copies.

Whether there is a will or not affects what kind of Grant of Representation you need in order to continue the probate process.

Obtaining the Grant of Representation

To execute a will, you will usually need to obtain the Grant of Probate or Letters of Administration. The Grant of Representation refers to the grant that you must obtain to carry out probate. The kind of grant that you need will depend on your circumstances, which is outlined as follows:

  • If you are named executor in the will – Grant of Probate
  • If you are the administrator with no will – Letters of Administration
  • If you are the administrator of a will – Letters of Administration (with will).

The Grant of Representation will make it possible for you to access all of the deceased’s assets, such as their bank and building society accounts. Doing so without the Grant of Representation would be very difficult, if not impossible. However, the Grant of Representation may not be needed if:

  • The deceased did not have much money in their accounts – a bank or building society may be willing to release the funds without a grant, or;
  • Their properties, bank or building society accounts and insurance policies were joint-owned by a surviving spouse or civil partner.

In the event of joint-owned accounts, the bank or building society may be willing to transfer sole ownership to the surviving civil partner or spouse if you present them with the death certificate. However, if they had any sole accounts, you will most likely need the Grant of Representation.

You can obtain the Grant of Probate or Letters of Administration by contacting your local Probate Registry. You can do this by filling out and returning Probate Application form PA1 or applying through the online process.

Ideally, this process will take 3-5 weeks. However, if there are other complications – if there is inheritance tax to pay, or you make a mistake in filling out a form, for instance – obtaining the Grant could take a lot longer.

You will also need to contact HMRC to pay any inheritance tax due on the estate.

What to do if there is no will

If there is no will, the deceased’s estate will become intestate, meaning that it must be distributed according to the strict rules of intestacy. If you are not sure what to do, contact a solicitor for advice.

How long does probate take?

This will depend on how complex the estate is – if there are complicated assets, such as multiple properties, shares, and accounts, it is likely to take longer than if they had owned a single bank account and very few other assets.

It will also depend on how much time you and the other representatives can dedicate – if you are able to take extended leave from work to deal with probate, for example, you will probably be able to take care of it more quickly.

On average, probate takes between six to nine months to complete and can take up to eighty working hours. However, other complications can cause the process to take considerably longer, such as if the will is contested, or the deceased did not keep clear records of all their assets. It is not unheard of for the process to take several years to wrap up.

Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.

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