Probate is the complete process of administering the estate of a deceased person. It will differ from estate to estate, but in general, it will include organising their money, possessions and assets and distributing them as inheritance after any debts and taxes have been paid.
If a will is in place, the name of the person or people who will administer the estate will be named. This person is known as the executor of the will and it will be their responsibility to organise probate.
Gaining probate allows the executor to access funds and other assets to help them distribute them according to the wishes of the deceased as set out in their will. Different financial organisations have different thresholds for when probate will be required, ranging from £10,000 to £50,000.
There’s often some confusion about probate, what it involves and when it’s required. Here we’ll clarify some of the questions people have about probate, and how long it might take.
Do you need to go through probate if there is a will?
Probate will usually be required if the deceased person’s estate is worth more than £10,000, even if there is a will. If there is a will and the deceased person has assets of less than £10,000 then no probate will be required.
However, if most of the assets in the estate are jointly owned such as savings, property and bank accounts,, then probate may not be necessary. These will automatically pass to the surviving co-owner. The surviving co-owner, usually the spouse, will only need the death certificate in order to access these assets.
However, if the assets were owned as tenants in common or if there are other solely owned assets within the estates, such as ISAs and other investments, then you may still need to apply for probate.
What is the procedure of probate of a will?
Because every estate is different, the exact probate process for each individual can vary considerably, depending on the instructions left in the will. The assets, beneficiaries, and creditors of the estate will all be a factor in determining the length of the process.
However, there is a basic process that most executors will need to complete.
Firstly, the full details of the estate’s assets and debts will need to be gathered. This should include details such as property, savings, any outstanding debts or other liabilities, business interests and investments.
You will then need to apply for the Grant of Probate. This is permission to administer the estate and distribute any assets according to the wishes of the deceased person as set out in their will.
An inheritance tax return will need to be completed and any tax due as a result will then need to be paid.
You will then receive a Grant of Probate, allowing you to access accounts and other investments. You will then need to repay any of the deceased’s outstanding debts, prior to distributing what’s left according to the instructions that are set out in the will.
Extra complications can occur if there are any disputes between the executor, beneficiaries, creditors or HMRC.
The probate process takes about a year for most estates. The time it takes will depend on the size and the complexity of the estate. Probate for simpler estates can all be tied up in a much shorter period of time than complex, large value, estates.
International probate can be even more complicated and takes anywhere between six months and two years. It can take time to receive the necessary paperwork and permission in order to sell foreign assets, and businesses can take time to sell or divide.
Sometimes disputes can arise during the probate process between the executor, creditors, HMRC or beneficiaries. These disputes can all create delays when it comes to administering the estate.
Homemade and DIY wills are more likely to create problems than wills that have been drafted by a solicitor. This might be because the will has been poorly drawn up or might even be completely invalid, with the wishes expressed within unclear.
A potential lengthy delay is the process of selling the property. This can be unpredictable, although the fact there is no upward chain can help reduce the risk of the sale being held up. During this process, utility bills and maintenance costs will still need to be paid on the property.
Sometimes the beneficiaries might be missing or difficult to locate. If they can’t be easily identified or located the inquiries will need to be made and searches will need to be carried out.
If you encounter any problems during the probate process then our team of experienced probate specialists are on hand to provide expert advice. We can help resolve any disputes or even take over your executor duties to help free up your time and speed up the process.
The death of an executor isn’t unheard of and if the administrator dies during probate, someone else will need to be appointed in their place. The responsibility for this will fall to the person who is named as the executor of the recently deceased executor.
Why would a will go to probate?
Most estates will need to go through probate, regardless of whether or not there is a will. The determining factor in whether or not probate is required is the type and value of the assets in the will.
The Grant of Probate is the document that allows for the executor to take up ownership of the assets from the deceased, allowing them to then carry out the instructions outlined in the will. Estates of a very low value, or when all the assets are held in common, will not require a Grant of Probate.
If the deceased owned assets in their own right above £10,000, then it’s likely you will need a Grant of Probate. If, for instance, the deceased held £50,000 in a bank or building society account, then the financial institution in question will need to be provided with a Grant of Probate before it will release any capital to the executors.
If, however, the deceased only held a few thousand pounds in an account with the same institution, then they are unlikely to need to see a Grant of Probate. Each bank and building society has its own limits of the amount that they are willing to give to executors before they see a Grant of Probate, but in most cases, it will be around £10,000-£15,000.
Other factors that might require a Grant of Probate, even when most of the assets are jointly held with a spouse, include stocks and shares held in a single name or property that is held in common. If the deceased was the sole owner of the property that they shared with their beneficiary, then a Grant of Probate will be required before it can be transferred to their ownership.
The rules regarding probate can be confusing, which is why many people will entrust the process to an experienced probate solicitor to carry out probate as efficiently and effectively as possible.
Is a will enough to avoid probate?
A will on its own is not enough to determine whether or not probate is required. What determines the need for probate is the assets that the deceased held, their value and whether or not they were held solely or in joint names.
For this reason, a good place to begin when determining whether or not you require a Grant of Probate is to make a detailed list of all the assets that the deceased owned. You’ll then need to find out whether those assets were held in the deceased’s sole name, in joint names or with someone else.
When assets are held as Joint Tenants with someone who is still alive, the asset will then automatically pass to the co-owner under the Right of Survivorship. If this is the case for all of the deceased’s assets, then a Grant of Probate will not be required.
If, however, assets are held as Tenants in Common, they are not passed to the surviving tenant by the Survivorship rules. Instead, these will pass on to whoever is entitled to inherit under the deceased’s will. Depending on their value and who is inheriting them probate may be required.
If the assets of the deceased all fall under the Probate threshold then it’s likely that probate won’t be needed. This is known as a ‘small estate’ and every bank and financial institution will have its own limit for what constitutes a small estate. Generally speaking, if the estate is less than £10,000 – £15,000 then a Grant of Probate will not usually be required.
Does a will speed up probate?
The probate process needs to follow a number of steps. This means that although when a will is in place the process can be speeded up to some degree, the differences are rarely that great. It takes between 9 to 12 months in England Wales to obtain the Grant of Probate and then complete the estate administration process regardless of whether or not there is a will.
Despite a will being unlikely to make the process significantly faster, the presence of a will can make things more clear-cut. There will be a range of information at hand that can speed up the process while reducing the potential for disputes. Loved ones and beneficiaries will know who the executor is and that the person was selected for this role by the deceased. The executor will also know the names of the beneficiaries and what the deceased wanted them to inherit.
However, that doesn’t mean that the existence of a will removes the risk of delays occurring. The relatives of the deceased may not be able to locate either the original will or later versions. It can be harder to locate if the company that drafted the will has since closed down. If someone has been excluded from the will, they may be able to make a claim under the Inheritance (Provision for Family and Dependents) Act.
If the will has not been properly drafted this may cause uncertainty around the deceased’s wishes. A poorly drafted will might even be found to be invalid. This can significantly delay the probate process.
Professional probate advice from Mark Reynolds Solicitors
Taking care of probate can be stressful and complicated, particularly if you are grieving. At Mark Reynolds Solicitors, our experienced probate services understand the process of dealing with the estate of a friend or family member can be a daunting process. Our team can take care of as much or as little of the process as you wish, providing support and advice along the way.