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When is probate required?

View profile for Kevin Horn
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Following the death of a loved one, even with what seems to be the simplest of estates, you may need to apply for a Grant of Representation, which will be either a Grant of Probate if there is a Will or a Grant of Letters of Administration if there isn’t, because without that you may not have the legal authority to realise and distribute that loved one’s assets. Kevin Horn, Private Client Partner, explains here why probate may be required, what is involved and how we can support you through this emotional and often confusing time.

What is probate?

Probate is the name given to the process which gives the Executor(s) named in the Will of the person who has passed away this legal authority.  If there is no Will there are no appointed Executors so the process is slightly different. In this case the law prescribes who is entitled to apply to deal with the administration of the estate, and there is a strict order of priority. Any surviving spouse ranks highest in priority followed by children, parents, siblings and extended family members.

The individual who agrees to accept responsibility applies for the Grant of Letter of Administration. In the event that there is any disagreement as to who should be appointed as Administrator, the Court would determine that issue. The same applies if there are disagreements between the Executors as to which of them should accept their appointment and indeed the Court can determine whether the Executors named in the Will should be replaced.

The term Personal Representative applies to both Executors and Administrators. 

There are several factors that will determine whether a Grant of Representation is needed:

  1. Size of estate – If the value of the whole estate (i.e. the property, bank accounts, assets etc.) is worth less than £5,000, it is unlikely you will need to apply for a Grant. 
  2. Bank accounts – If the money in the deceased’s account(s) amounts to less than £25,000 most of the major banks and building societies will release the funds without a Grant. 
  3. The nature of the deceased’s ownership of assets  – If the deceased held property in their sole name (so not jointly with another person) a Grant will be needed before the Personal Representatives can deal with it, i.e. transfer or sell it. If any bank accounts and/or property were held in the joint names of the deceased and someone else, if the basis on which the assets were held was a joint tenancy, the money in the accounts will pass to the surviving co-owner by right of survivorship as will ownership of the property but if the basis of co-ownership was a tenancy in common the right of survivorship does not apply and a Grant will almost certainly be needed before ownership can pass to the other.
  4. The nature of the assets – National Savings and Investments do not apply the same value threshold as the banks and building societies. Where the deceased held Premium Bonds with a value in excess of £5,000 it is likely that a Grant will be needed for them to be cashed in.

The presence or absence of a Will does not determine whether or not a Grant is needed, but whether or not there is a Will determines whether a Grant of Probate or a Grant of Letters of Administration will be required. 

How do I apply for a Grant of Representation?

Whether you are applying for a Grant of Probate or a Grant of Letters of Administration you first have to value the assets of the estate, which will require you to write to all of the financial institutions asking for the value of all assets held at the date of death. The house needs to be valued as do the contents as well as all personal effects (including jewellery). The value placed on the estate should include monies owed to it and by it so you may need to place what are called statutory notices. You will also have to work out how much Inheritance Tax is due; if there is tax to pay you have to pay it before the Grant can be applied for. If there isn’t, you complete and file the Inheritance Tax forms when you apply for the Grant.

What happens after I obtain a Grant of Probate or Letters of Administration?

Once the Grant has been issued, you can then administer the estate.  If there is a Will, the Personal Representatives have to follow what the Will says. If there is no Will, the distribution of the estate’s assets is determined by the intestacy rules.  If you have been named in the Grant as Personal Representative, it will be your responsibility to manage this appropriately. Income or Capital Gains tax might have to be paid before the beneficiaries are accounted to, and you may be faced with a claim against the estate by a disappointed beneficiary.

“Even where a Grant of Representation may not be required, we would recommend that appropriate advice is sought in every case because if the Personal Representatives get things wrong they can find themselves in trouble with HMRC and/or the beneficiaries to whom they are accountable” concludes Kevin.  “Managing the administration process following the passing of a loved one will be particularly distressing at a time when you are grieving. Since the size of the estate, whether or not there was a valid Will and working out who the beneficiaries are will complicate a process which might not be an entirely straightforward  one, it’s important that you receive the right advice pertinent to your own circumstances.”

Should you, as a Personal Representative,  be facing the task of applying for probate and the subsequent administration of the estate, Kevin and his colleagues in the Private Client team can offer you a free 30 minute appointment so that you can properly understand the steps involved and be aware of any potential complications that may arise.  To book your appointment today, or to find out more about how we can support you and your family, call us today on 01329 222075 or email privateclientenquiries@warnergoodman.co.uk.  

Alternatively, you may find the following resources useful: