Do I need a grant of probate?
When a person passes away, it often falls to a family member or spouse to act as the executor of their Will, making sure that their final wishes for their property and money are respected.
However, being named as the deceased’s executor in their Will doesn’t mean you can immediately get on with distributing their assets. If their estate is of more than modest size, or they have property, shares or reasonable savings in the bank, you may need to apply for a grant of probate.
The courts issue grants of probate to prove that the executor is entitled to administer the deceased’s estate. A variety of circumstances might require this, for example when the deceased:
- Has a sizeable amount of cash in a bank account (the limit depending on the bank)
- Has a portfolio of stocks and shares
- Owns a property
- Owns personal items of value such as antiques
- Died because of medical negligence or personal injury (and therefore their estate is eligible for a wrongful death claim)
- Owns a business
What is a grant of probate?
A grant of probate is the legal document that allows the executor of an estate to administer the Will of a deceased person.
‘Probate’ itself is the process of ‘proving’ a Will in court. In other words, validating that it really does represent the final wishes of the deceased.
When do I need a grant of probate?
You will need a grant of probate to administer an estate worth more than £15,000 (although there are some exceptions to this rule). You will also need one if many of the situations outlined above.
Commonly, you may find you need a grant of probate when dealing with the deceased’s bank accounts.
Most banks will have a threshold below which they will let you access the deceased’s bank accounts with just a copy of their Will and death certificate. Above the threshold, they will only let you withdraw money for certain expenses (such as funeral costs) without a grant of probate.
Estates solicitors have a method of dealing with this issue; if they know the balance of an account is just over the threshold applied by a particular bank, then the funeral expenses can be paid out of that account.
This may bring the account below the bank’s threshold for probate and allow the estate access to the rest of the balance without the need for a grant. However, banks don’t publish their thresholds for probate, so this method relies on your solicitor being familiar with individual banks’ rules.
Banks also aren’t required by law to stick to their internal probate threshold – ultimately they’re entitled to request a grant of probate if they deem it necessary.
Can I avoid probate?
It’s sometimes possible to administer an estate without a grant of probate if the estate is small in value or, in some circumstances, if it is all held jointly. Accounts and property in joint names can pass to a surviving husband or wife without the need for probate.
How do I apply for a grant of probate?
Grants of Probate are issued by the Probate Registry, a division of HM Courts and Tribunal Services, so you will need to apply to your local registry. There’s a specific set of forms that you will need to fill out for the application – a probate application form and an inheritance tax form.
It can take two or three months for the Probate Registry to issue a grant of probate and any errors in the forms can delay the process further. It’s therefore important to ensure all forms are completed correctly and accurately.
The Inheritance Tax form can be particularly tricky, as it requires you to calculate the value of the deceased’s estate, including any valuable possessions such as their house, antiques, art, cars and electrical equipment, plus any substantial gifts they gave in the last seven years.
It’s doubly important that you get this right, because as the executor you could be held personally liable for any discrepancy in inheritance tax and be forced to make up the difference out of your own pocket.
You can use a solicitor when applying for a grant of probate, either to advise you on individual aspects of the process or to carry it out entirely on your behalf. If you’re concerned about delays or inheritance tax, a specialist probate lawyer could help minimise the risks of both.
Can I get a grant of probate without a Will?
No. If a person dies without a Will, they are intestate. This means their estate is distributed according to the law of intestacy, regardless of what their wishes may have been.
If you need to administer the estate of someone who died intestate, you will need to apply to the courts for letters of administration. Letters of administration function similarly to a grant of probate – indeed, both documents fall into a broader category known as grants of representation.
However, the rules around intestacy give the administrator much less freedom to dispose of the deceased’s assets than a grant of probate would.
They heavily proscribe the estate administrator’s ability to act, as the assets of the deceased must be distributed to family members in the order stated by the law, rather than in the way the person might have wanted.
The administrator of an intestate person’s affairs must exercise caution, as they could be personally responsible for any mistakes in how assets are distributed. Seeking help from a specialist lawyer is advisable.
How much does probate cost?
If you need advice on probate from a solicitor, we offer a range of solutions to suit your means and circumstances. We offer fixed fees for making a straightforward application for a grant of probate.
Our solicitors can also provide separate advice on estate administration and individual aspects of the probate process at their hourly rates, which can be a cost-effective solution depending on how much legal input you need.
The government also charges a court fee for grant of probate applications. The current court fee for probate is £215, if the value of the estate is over £5,000. There’s no fee if the estate is under £5,000.