What is Probate and How Does It Work?

 
 

What is Probate?

When a person dies, someone has to deal with their affairs. This is called 'administering the estate' and includes distributing the deceased’s property, money and possessions in-line with the Will.

Prior to distributing a deceased person’s estate it is a legal requirement that it goes through probate, a legal process overseen by a probate court.The probate court decides the legal validity of the deceased person's Will and grants its approval, also known as granting probate.

How Does It Work?

The flow chart below provides an overview of the process for administering the estate.

Process of probate from checking if ther's a will to distributing the estate in-line with the will

Where there is a Will

The person who is responsible for'administering the estate'–will be named in the Will. This person is known as ‘the executor’. There may be one or more than one executor.

The Executor or the solicitor who is assisting the Executor with the administration of the estate will first apply for a ‘grant of representation’, the legal right to deal with the estate. This involves completing an Affidavit and an Inheritance Tax Form.

To complete the Inheritance Tax Form the Executor will need to work out how much the Estate is worth. Depending on its value, there may be Inheritance Tax to pay. It is important that the Inheritance Tax Form is completed quickly and accurately otherwise penalties may be applied by the Inland Revenue.

If there is Inheritance Tax to pay, the Executor will normally have to pay at least some of it before a Grant of Representation is issued. This can be claimed back from the Estate or if there are sufficient funds in the deceased’s bank account then the solicitor can arrange for it to be paid directly by the bank.

Once the Grant of Representation has been issuedthe Executor sends a copy of the Grant to organisations that hold the deceased person’s assets, eg their bank. These assets are then released so they can be transferred into an executorship account. Any property is sold.When the Executor has collected all assets he then distributes them in-line with the deceased person’s wishes, as detailed in the Will.

What if There is No Will?

If someone dies without leaving a Will an ‘administrator’ deals with their affairs and applies for a ‘grant of representation’. An administrator can be the person’s spouse, civil partner,child, parent, sibling or other relatives. There is a priority order to who can apply for the grant.

The law then decides who is entitled to a share of the deceased person’s estate. It is distributed according to certain rules. These are called the rules of intestacy.

Only married or civil partners and some other close relatives can inherit under the rules of intestacy.Cohabiting partners who are not married or in a civil partnership can't inherit under the rules of intestacy.

The rules of intestacy are complex and it is recommended that you speak to a solicitor.

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