What Should You Know About Probate?

When someone dies leaving a valid will, it is common for an application to be made for probate. This process is essential in the administration of an estate, involves several steps and considerations.

Mark Stubberfield, Head of Wills, Trusts & Probate answers some frequently asked questions exploring into why a will goes to probate, whether it is necessary and much more.

Q: Why Does a Will Go to Probate?

A: When a person passes away with a valid will, an application for probate is typically made. The Probate Registry issues a grant of representation, commonly known as a grant of probate. This document names the executor(s) appointed in the will and grants them the authority to manage the deceased’s estate. During this stage, the will is “proved”, providing the executors with legal protection to follow the will’s instructions and distribute the estate accordingly.

A will remains a confidential document even after the death of the testator, and only the executors are entitled to see it. However, once an application for probate is made, the will becomes a public document, allowing anyone to request a copy.

The grant of probate is crucial as it authorises the executors to handle the estate. In cases where no will exists, an application for Letters of Administration may be necessary. This serves a similar purpose to a grant of probate but applies when there is no will.

Q: Does Every Death Require Probate?

A: There is no legal requirement for all estates to undergo probate, regardless of whether a will exists. The necessity for probate largely depends on the assets within the estate. Many asset holders, such as banks, may allow the transfer or cashing in of assets without seeing a grant of probate if the value is below a certain threshold, often around £50,000. This is also applicable to shareholdings and investments, though the requirements can vary by financial institution.

Jointly owned assets typically pass automatically to the surviving owner, negating the need for prob ate. For property owned as joint tenants, no grant of probate is needed to remove the deceased from the account. However, for property owned as tenants in common or solely by the deceased, a grant of probate is usually required to facilitate a sale or transfer.

Even when probate isn’t legally necessary, applying for it can be beneficial to prevent potential claims against the estate. Under the Inheritance (Provision for Family and Dependants) Act 1975, certain family members or dependants can make a claim if they believe they have not been adequately provided for. These claims must be made within six months of the grant of representation being issued. Obtaining probate can thus protect executors from late claims, as distributing the estate without it could make them personally liable for any successful claims made after the estate has been settled.

Q: How do we deal with probate disputes?

A: Probate disputes are becoming increasingly common, often involving family members who feel unfairly treated by the will. Each claim is unique and dependent on various factors including the personal circumstances of the claimant and their relationship with the deceased. These disputes can be complex, time-consuming, and costly to resolve, especially if they proceed to court. Contrary to popular belief, legal fees do not automatically come from the estate; each party generally pays their own legal costs.

In disputes, one party may seek to prevent the estate’s administration by applying for a caveat, which blocks the grant of probate. This can complicate matters, especially if there are estate debts or a significant inheritance tax bill that requires property sales to settle. Delays in paying inheritance tax can lead to interest chargers, currently at a rate of 7.75%.

Q: How do you handle overseas assets in probate?

A: Dealing with oversea assets adds another layer of complexity. Foreign financial institutions may not accept a UK grant of probate or for the original grant to be “resealed.” The process varies by jurisdiction and asset type, and complications can arise if there are separate wills for assets held in different countries.

Q: Are there any challenges in obtaining probate?

A: Applying for probate does not require professional advice, but significant delays at the Probate Registry can complicate matters. The introduction of an online application system before the Covid-19 pandemic led to a centralisation of services, which has experienced numerous issues and backlogs. Current wait times for probate applications can be up to 16 weeks, with paper applications taking as long as 24 weeks. Non-standard applications face further delays due to additional checks.

These delays can significantly impact families, delaying property sales, reducing asset values due to market fluctuations, and incurring interest on unpaid inheritance tax.

Probate is a crucial but complex process in the administration of an estate. Understanding why probate is necessary, when it is required, how to handle disputes, manage oversea assets, and navigate the application process can help executors and beneficiaries manage their responsibilities effectively. Despite the challenges, being well-informed and prepared can mitigate many of the difficulties associated with probate.

For more information on the above, please contact Mark Stubberfield by clicking the 'contact us' button or call mark on 01732 758545 at our Brighton Office.