Wednesday, 16 May 2018

The Probate process

The Probate process

In the third blog of our “Dying Matters” Series, we look at the Probate Process.  To read the other blog entries, click here

Having gathered all the relevant information about the deceased’s financial affairs, the personal representative(s) (the “PR’s”) in the estate (who are either the executors if there is a will or person(s) entitled to administer the estate under the rules of intestacy if no will) may need to apply for a Grant of Representation in order to deal with the assets in the estate.

A Grant of Representation (“a Grant”) is the legal term for either a Grant of Probate, which applies if there is a will, or Letter of Administration, if there isn’t a will. It is a legal document issued by a Court called the Probate Registry setting out who is legally entitled to deal with the estate.

It is worth noting that a Grant is not always required in order to deal with the administration of an estate. Sometime assets can be dealt with (for example a bank account closed) without the need to produce the Grant. Also, in some cases, assets will pass automatically to joint owners as soon as a death certificate is produced.

If a Grant is required then there are two options for the PR’s. They can either;

  1. make an application to the Probate Registry directly; or
  2. instruct a solicitor to make the application on their behalf.

If a personal application is made, an initial application form must be obtained from the Probate Registry (or online) and filled in and submitted by the PR. If a solicitor is obtaining a Grant this step is not required as the solicitor will prepare the necessary legal document and submit it directly to the Probate Registry on behalf of the PR.

With either option, part of the process will involve submitting an Inheritance Tax (“IHT”) return (even if there is no tax payable). The procedure involved in this will be vary depending on whether the estate is more complex or there is IHT to pay.

If IHT is payable then usually arrangements must be made for payment of the same before a Grant will be issued by the Probate Registry. Often a bank where the deceased held funds will make payment directly to HMRC without sight of a Grant, provided it is for payment of IHT. The process can be more complicated if there are no cash assets available, but in some circumstances HMRC offer an option to pay by instalments.

In terms of timescales, if no IHT is payable, then the application process will generally take one to two months. If tax is payable it is likely to take a while longer, depending on the complexity of the estate.

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