FAQs on Probate
Frequently asked questions on probate
Here are some of the most frequently asked questions we receive about probate.
If you’re wondering what probate is, this is a good place to start.
FAQs on Probate
1. What is ‘probate’?
The term ‘probate’ refers to the legal process by which a Will is verified as being valid. It is also often used in a wider sense to mean the process of sorting out a deceased person’s assets and liabilities and distributing the estate to beneficiaries.
2. What is a ‘grant of probate’?
A grant of probate is the legal document issued to confirm the authority of the executors of the Will to act in administering the deceased’s estate.
3. Why does an executor need to have confirmation of their authority?
An executor’s authority to act comes from the Will. A grant of probate is proof that a Will is valid. Therefore anyone dealing with the executor has proof when they see the grant of probate that the executor’s authority to act is genuine.
3. Who issues the grant of probate?
The grant of probate is obtained from one of the Probate Registries operated by the Probate Service which is part of the government HMCTS. Most applications are now be made online through the HMCTS website.
4. What is a grant of representation?
A grant of probate is not the only type of grant that may be applied for when someone dies. There are several different types of grant and the general name that covers all of them is ‘grant of representation’.
5. Why are there different types of grant?
There are different types of grant of representation to cover different situations.
If a person dies without a valid Will they will be said to have died ‘intestate’. In which case a grant of probate is not appropriate. Instead a ‘grant of letters of administration’ is the form of grant required. This gives authority to the persons entitled under the intestacy laws to administer the deceased person’s estate.
There are other types of grant such as where there is a Will but there are no executors named in it or the named executors have all died or they have declined to take up their role or they are unable to act because they are mentally incapacitated.
6. Is a grant of representation always needed?
The short answer is ‘No’. Generally, if the estate of the deceased is small it is usually possible to avoid having to apply for a grant of representation. It used to be the case that banks would only allow a deceased person’s account to be closed without a grant if there was no more than about £5,000 held in the account, but in more recent years most banks have altered their rules. It’s now not uncommon to find that accounts with up to £50,000 or even higher balances can be closed without having to produce a grant of representation.
If all of the deceased’s assets were owned jointly for example with a spouse or partner then it’s usually not necessary to apply for a grant from the Probate Registry. Instead the assets can be transferred to the surviving joint owner on production of the death certificate.
If you’re searching for missing assets or don’t know where to start looking for assets you could try the Unclaimed Assets Register where you can search for lost financial assets. For more information click here
6. What is intestacy?
‘Intestacy’ is the term used to describe the situation in existence when someone dies either without having made any Will at all, or where they have made a Will but it is not valid or it fails to dispose of the person’s assets for some reason. A deceased person’s estate in those situations is said to be ‘intestate’.
7. What is a partial intestacy?
A partial intestacy comes about when the deceased made a valid Will but it doesn’t cover all of the assets in the deceased’s estate or the beneficiaries named in the Will to receive some of the assets have already died or they refuse the gift or they are prevented by law from taking their inheritance and there is no one else to take their place as beneficiaries.
8. What information is needed to apply for a grant of probate?
The original of the deceased’s Will is needed because this must be sent into the Probate Registry. Every effort must be made to find the deceased’s Will. If the executors don’t know where the original is stored they must carry out searches to find it. If the original of the Will can’t be found but a photocopy exists the Probate Registry will accept the photocopy if it can be verified as a true copy of the original provide that the executors can show they have attempted to find the missing original.
For more information on how to find a missing Will see our How-to Guide on How to Find a Missing Will.
If the deceased’s estate is classed as an exempt estate i.e. one where there is no inheritance tax to pay a Return of Estate Information form must be completed and sent into the Probate Registry with the application for the grant of representation.
If the value of the estate is above the inheritance tax nil rate band and doesn’t qualify to be classed as exempt then an IHT 400 and supplemental forms must be complete and sent to HMRC first before the application is made to the Probate Registry.
9. Is it necessary to get assets valued professionally?
Information about the deceased’s assets should to be as accurate as possible. It may be necessary to obtain professional valuations. Estimated values are sometimes accepted by HMRC especially if there is no inheritance tax to pay. The rule of thumb is that generally HMRC is less likely to accept an estimated value where the asset is more valuable or more unusual.
For more information on valuing assets see our Valuing Assets Guide here
Got more questions about probate?
There are also tips and How-to Guides to help members in dealing with a deceased person’s assets, just follow the links.
You can also find more posts on related issues listed under the Probate and Trusts category of the blog.
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