Applying for probate - practical guide

Losing a loved one is an emotionally challenging time, often compounded by the complexities of administering their estate. This guide provides a practical overview of the probate process in England and Wales.

What is probate?

Probate is the legal and administrative procedures involved in dealing with the estate of a deceased individual. This entails:

• Identifying and valuing assets - whether identifying personal assets, contacting banks, insurers, pension providers and other institutions and then for appropriate assets, obtaining evidence of likely value.

• Selling assets - where items are not specifically left to an individual, turning assets into money such as selling any property not inherited directly

• Settling liabilities - paying outstanding debts, taxes (including potential inheritance tax), and dealing with other financial obligations.

• Paying Inheritance Tax if applicable

• Distributing the remaining assets: This occurs according to the Will (if there is one) or intestacy rules (if not) to designated beneficiaries.

• Preparing final estate accounts

Applying for probate generally means applying, as named executors, to the Probate Registry, for a Grant of probate, which formal legal authority and responsibility for the estate administration. Dealing with probate may also mean dealing with the Inland Revenue and completing documents to show whether any Inheritance Tax is payable or not.

With some low value estates or where the main asset is a property which is left to a co-owner, formal grant of probate may not be required (see more below)

How long does probate take?

While the average probate time frame ranges from 9 to 12 months, many factors can influence how long it takes, including estate complexity, tax considerations, and potential disputes.

The executors, who are potentially personally liable for errors, will generally take a cautious approach before finalising probate. It is sometimes possible for them to make interim distributions until probate is finalised with final estate accounts.

What are the legal duties on executor or estate administrators?

Under English law, executors and administrators of an estate hold a position of significant responsibility. They owe numerous legal and fiduciary duties to manage the estate diligently and in the best interests of the beneficiaries. Duties include :-

• Avoid conflict of interest – to act in the best interests of the estate and beneficiaries, avoiding conflicts of interest or personal gain.

• Duty of Care- to act with reasonable skill and diligence, seeking professional advice when necessary.

• Duty of Good Faith – to be honest and transparent in dealings with beneficiaries and other parties involved.

Executors and administrators are accountable to the beneficiaries and the court for their actions. They can be held liable for negligence, breaches of duty, or mismanaging the estate.

What forms and documents are needed for Grant of Probate?

Accurate completion of necessary forms ensures smooth progress. Key documents include:

• PA1P: Application for Grant of Probate (for estates with Wills)

• IHT400: Inheritance Tax return (if applicable)

Additional forms may be required depending on specific estate characteristics.

No will - dealing with Intestacy

When someone dies without a will in the UK, their estate is considered "intestate" and their closest living relative has the right to apply for probate to become the "administrator" of the estate. The order of priority for who can apply is as follows : -

• Spouse or civil partner: This applies even if you were separated at the time of death.

• Children: This includes legally adopted children but not stepchildren, and they must be 18 or over.

• Parents: If there are no surviving children or spouse/civil partner.

• Siblings: If there are no surviving parents or children.

• Other relatives: Following a specific order outlined in the Intestacy Rules, such as grandparents, grandchildren, uncles, aunts, etc.

If several people with equal entitlement exist within a category, they can apply jointly as co-administrators. If there's no one within this hierarchy, or if they are unable or unwilling to act, the estate then falls to the Crown and the Treasury Solicitor becomes responsible.

The process is broadly the same in terms of the role and duties of the administrator. The terminology is different, with the application being for Letters of Administration rather than Grant of Probate.

Form PA1A is the form to apply for Letters of Administration without a Will.

Do you always need a formal grant of probate or letters of administration?

No, you don't always have to apply for formal probate under English law. Here are some situations where formal probate might not be necessary:

• Small Estates - If the deceased's estate value (excluding joint assets) falls below a certain threshold (currently £36,000), you might be able to deal with it without formal probate. This may involve gathering assets, paying debts, and distributing inheritance without court involvement.

• Jointly Owned Assets – if all or most of assets are held jointly with a surviving owner (e.g., bank accounts or property) they will usually pass directly to them, bypassing the need for probate.

• Life insurance payouts - life insurance benefits often have designated beneficiaries named on the policy, allowing direct transfers without probate, depending on the policy terms and estate size.

• Low Inheritance Tax Liability - If the estate value falls below the inheritance tax threshold (£325,000) and other exemptions apply, formal probate might not be necessary for tax purposes.

Can executors or administrators pay for legal advice from the estate?

Generally speaking the answer is yes, under English law, an executor can generally pay for reasonable legal fees incurred in administering the estate from the estate itself. In some situations, obtaining legal advice is very important such as a multi-jurisdictional estate, where the estate is very large, where the will sets up a trust.

The starting point is to check whether there is a charging clause in the will specifically authorising use of and payment for legal and/or other professional fees.

If there is no charging clause, use of lawyers or others will usually be an allowable expense.

To avoid potential conflict, it is advisable, if significant fees are anticipated, to seek approval from beneficiaries in advance to avoid disputes. Fees incurred should be :-

• With prior agreement of any co-executors – if more than 1 executor is appointed, they all should agree on the payment of professional fees.

• Reasonable and Proper - the fees must be deemed reasonable and incurred in good faith for the benefit of the estate.

• With no possible conflict of interest - the executor must avoid personal gain or conflict of interest in incurring the fees.

• Documented - the executor should maintain clear records of all legal expenses and their justification.

Probate issues where a property is the main asset

In the majority of cases, a property is the main asset. Generally speaking, executors or administrators should obtain a number of independent valuations and consider all the available options.

 In most cases the beneficiaries will want the property sold as soon as possible. However, if the will is silent as to specific instructions,  a prudent executor may consider market conditions, beneficiary preferences, and any specific instructions in the Will regarding the property's future.

Probate application legal advice

Navigating probate, especially with property involved, can be complex. It's recommended for the executor to seek professional guidance from solicitors and property valuation experts to ensure all legal requirements are met, taxes are accurately calculated, and the best course of action is taken for the benefit of the estate and all beneficiaries.