How Does Probate Work?

What is Probate?

When someone has passed away, there is a series of steps that must be taken with regards to their property, in order gain the right to distribute the estate according to their wishes as set out in their will – or if there is no will, the rules of intestacy. Probate is the process by which a deceased person’s will is declared valid, and executors of the will are given the right to wind up the person’s affairs and distribute their property according to the provisions in the will.

The role of the executor in probate

Wills have executors, individuals appointed with the responsibility to deal with the property in the will according to its provisions. This will involve paying off all of the person’s debts and transferring property or money to the beneficiaries named in the will. Executors are appointed specifically by name in the will document. In order to gain the right to distribute the property, for example, by gaining access to bank accounts, the executors must first apply for a grant of representation.

Steps to Applying for a Grant of Representation

Firstly, if it has not already been done, the executors must register the death and acquire the death certificate. Secondly, often with the help of a solicitor, the executor must complete a probate application form: “form PA1”.

Inheritance Tax Form

The executors will then complete the inheritance tax form. There is no inheritance tax to pay on an estate that is left entirely to a spouse or civil partner. Also, if the estate is worth less than £325,000, there will not be inheritance tax to pay. The standard rate of inheritance tax is 40%, payable on anything over the £325,000 threshold. (The first £325,000 will not be subject to inheritance tax).

It is vital to fill out the inheritance tax form, even if the executor does not think there is inheritance tax to pay.  Moreover, it is important for the executors to complete the inheritance tax form carefully because there are financial penalties for submitting a form with incorrect information.

Sending The Application: Things to Include

Next, the application must be sent to the Probate Registry. The application for a grant of representation should include:

• An official copy of the deceased person’s death certificate
• The PA1 Probate Application Form
• The Inheritance Tax Form (as explained above)
• A £215 application fee
• The original will, as well as 3 photocopies and any codicils (official documents that update the will)

Swearing an Oath

Finally, once the application has been processed, the executors of the will are sent an oath that the information they have provided is correct. The executor will then arrange an appointment at the local Probate Office to swear the oath. This is the final step to applying for a grant of representation.

The Position if there is no Will

When someone dies without a will, an administrator will be appointed carry out the distribution of their property. If you are the next of kin of the deceased person, such as their spouse or child, you can apply for a grant of representation to act as administrator. The administrator will oversee the distribution of property according to the intestacy rules. The intestacy rules outline the order of who will inherit from a deceased person who did not leave a will.

Challenging a Will

If you have concerns about the validity of a will, and are considering raising a will dispute, it is advisable to challenge the will before probate is granted to the executors. To raise your concerns, it is necessary to enter a caveat at the Probate Registry. In order to enter a caveat, you must complete the PA8A Form and submit a £20 fee to the Probate Registry. If there is a caveat on the will, probate will not be granted until your will dispute is resolved. Therefore, it is important to act quickly and enter the caveat as soon as possible to prevent the estate from being distributed based on the provisions of a will that you believe to be invalid.

If you are concerned about a will and need advice about how to act fast before probate is granted and the deceased’s property is distributed, get in touch with us at Willclaim solicitors. We are experts in handling will disputes, and can usually act on a no win no fee basis. Call us on 020 3322 5103, or complete our free claim assessment request.