What Is Probate and When Is It Needed?
Probate is a legal document that gives authority to distribute a deceased person’s estate according to the instructions in their Will.
Probate is not always needed, only in certain circumstances depending on the assets involved and their worth. This post will go through what probate is and when exactly you need to apply for a grant of probate.
What is Probate?
Probate is the legal authority to manage someone’s assets (their “estate”) after their death.
A grant of probate must be applied for before you are able to distribute any assets that are listed in someone’s Will to the named beneficiaries.
What Is a Grant of Probate?
A grant of probate is a legal document that is required to handle the deceased’s estate.
An executor of a Will usually applies for a grant of probate, which gives them the authority to deal with the estate. Once they have been granted probate, they can use the deceased’s funds to distribute their possessions as per the terms of the Will.
You often need the grant of probate to access bank accounts and settle debts. Although there is no time limit on applying for the grant of probate, it is strongly advised that you apply as soon as you can as it can take some time to process.
When Do You Need Probate?
You do not always need to apply for probate. In order to establish whether probate is needed, you should calculate the total amount of assets that a person has in their sole name and in joint names.
When someone leaves a Will, the probate procedure accomplishes two tasks: it confirms the validity of the Will, and it allows the executor to handle the deceased’s estate by paying debts and distributing assets to the beneficiaries.
When Might a Grant of Probate Not Be Needed?
A grant of probate is often not required in the following circumstances:
- Where the deceased only owned joint assets. The assets are likely to pass to the other owner.
- Where the deceased owned property as joint tenants. The property will pass to the other party.
- Where the deceased owned property as tenants in common.
- Assets held in a trust are not technically held by the deceased.
- Assets of lower value: The Administration of Estates (Small Payments) Act 1965 (as amended) states that a grant of probate isn’t required for assets below the value of £5,000.
The amount of money that financial organisations, including banks, building societies, share registrars, and investment firms, will release without a grant of probate varies depending on the financial institution.
If there is any disagreement regarding who is entitled to the money, a financial institution may reserve the right to ask for a grant of probate.
- Where the deceased only owned personal possessions.
- Insolvent estates where the liabilities are greater than the assets.
Why Do You Need Probate?
If it is found that probate is required, for instance, the estate is worth more than £5000 and the deceased owned property and other assets, then probate is necessary to be able to handle the estate and distribute the assets to the beneficiaries.
For example, if the deceased owned property, probate is needed to be able to sell that property. If the deceased held a large amount of savings in a bank, probate is needed to retrieve that money.
How Long Does Probate Take?
Every estate is different and the length of time it takes will vary depending on the complexity of the circumstances. Typically, it can take 9-12 months to settle an estate but it can take longer especially if there is a property to sell or there are complex income, inheritance, or Capital Gains tax issues to resolve.
The government says that after submitting your original paperwork, you should often receive the grant of probate within eight weeks.
Expect the procedure to take anywhere from a month to three months on average, but be ready for it to take longer.
Unless there are issues with the Will or it is being contested, having a Will typically has little bearing on the speed of probate.
Other elements can influence how quickly or slowly the procedure goes, such as having a large number of beneficiaries, hiring unqualified executors, or owning assets that are difficult to appraise.
How Do You Get a Grant of Probate?
The executors that are named on the Will must submit the original last Will and testament of the deceased and any codicils to the Will to the Probate Registry, which will examine it for errors before issuing a grant of probate. This could involve modifications or tampering indications. The Probate Registry verifies that the Will was written correctly and in conformity with the requirements outlined in the Wills Act 1837.
The Probate Registry will issue a grant of probate once it is determined that the Will is legitimate and that any inheritance tax (IHT) owed has been paid to HM Revenue and Customs.
Information about the deceased and their personal representatives is included in the grant. Along with the Will and any codicils, the grant of probate is a public record. Anyone who wants to verify the information in a grant can apply for a copy or contact the Probate Registry.
At Ackroyd Legal, no matter the situation, we have the skills and expertise to help you reach a favourable solution. If you would like further information on how we can help you with probate, please do not hesitate to contact us today on 020 3058 3363 or email enquiries.sa@ackroydlegal.com
