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Frequently Asked Questions about Probate
The following are some of the most common questions we hear from clients about the probate process. The answers given are intended for general information purposes only and should not be taken as legal advice. For specific legal advice on any aspect of probate, please get in touch with your local Devonalds office.
Questions about the probate process
What is probate?
Probate is the legal process involved in dealing with the estate of someone who has died. It involves various steps, including gaining control of the estate, paying any Inheritance Tax (IHT) due on the estate and distributing the assets in the estate according to the Will (or the rules of intestacy where there is no Will).
The person in charge of probate is known as the Executor (where there was a Will) or the Administrator (where there was no Will).
What is the process for probate?
Typically, probate will involve the following main stages:
- Applying for Grant of Probate/Letters of Administration to gain control of the estate.
- Having the estate valued.
- Paying any Inheritance Tax (IHT) due on the estate to HMRC.
- Selling any assets from the estate that need to be disposed of, including property.
- Paying any debts owed by the deceased e.g. energy bills and loans.
- Preparing estate accounts to show any money that has been spent from the account, paid in taxes etc. and the remaining balance.
- Distribution of the remaining assets from the estate to the beneficiaries named in the Will (or as determined according to the rules of intestacy if there was no Will).
How much does probate cost?
This will depend on the circumstances, including what assets are included in the estate and any specific issues that need to be resolved. We may be able to offer some services, such as applying for grant of probate, on a fixed fee basis, while other matters will be charged according to the relevant hourly rate.
For more information about our probate fees, please take a look at our pricing guide.
Do I need to use a solicitor for probate?
There is no legal requirement to use a solicitor for probate, however, it is usually recommended to do so for a number of reasons, including:
- A solicitor has the skills and experience to ensure every detail is accounted for and nothing is overlooked, giving you peace of mind.
- The solicitor will normally be legally liable for any mistakes, protecting you from legal consequences in the event someone challenges the way probate has been handled.
- Solicitors have professional indemnity insurance, so if any mistakes are made, any compensation they are required to pay will be covered.
- A solicitor can make sure probate stays on track, helping to avoid any unnecessary errors or delays that could hold things up.
- A solicitor can take charge of what can be a complicated and intimidating process at what is likely to be an already difficult time, making your life easier and allowing you to focus on grieving and supporting your loved ones.
Do you need probate for a small estate?
If the estate is worth less than £5,000 or the deceased has left their entire estate for their spouse or civil partner, you may not need to go through probate. However, you should always check this with an experienced probate lawyer before moving forward to avoid any potential legal complications.
Questions about probate timescales
How long does probate take?
In many cases, probate can be completed in around 6-9 months, but it can take significantly longer depending on the circumstances. Various factors will affect how long probate takes, including how complicated the estate is, whether there is any property that needs to be sold and any other specific issues that need to be dealt with.
Is there a time limit for probate?
There is no time limit for completing the probate process, however, there is one key time limit to consider, which is that any Inheritance Tax (IHT) due on the estate must be paid within 6 months of the date of death.
If you are concerned that probate is taking too long because the Executor or Administrator is not carrying out their duties properly, you may be able to apply to have them replaced. However, the circumstances under which you can do this are limited, so it is important to take legal advice at the earliest opportunity.
How long does grant of probate take once the forms are submitted?
It usually takes up to 10 days for probate applications to be processed by the Probate Registry once the relevant forms have been received. However, if any issues are raised or there are more complex matters to deal with, it can take longer for probate to be granted.
How long does it take to get an inheritance?
This will depend on the situation, but typically you should receive an inheritance within around 6-9 months, unless there are any problems or complex issues that need to be resolved.
Questions about administering estates
What are my duties as an Executor?
The Executor is responsible for the entire probate process, including:
- Obtaining grant of probate
- Collecting the assets included in the estate
- Having the entire estate valued
- Paying any Inheritance Tax (IHT) due on the estate
- Paying any debts outstanding on the estate
- Distributing the assets from the estate to the beneficiaries named in the Will
How do I apply for a grant of probate?
To apply for probate, you must first have the estate valued and report this value to HMRC. You will then need to pay any Inheritance Tax due on the estate.
Once this is done you can apply for probate either online or through the post. As part of your application you will need to include:
- The original Will
- 2 copies of the Will
- The original death certificate
You will also have to pay an application fee if the estate is valued at more than £5,000.
What do I do about probate if the deceased has not left a Will?
If the deceased did not leave a Will, they are said to have ‘died intestate’. You will need to apply for Letters of Administration to obtain control of their estate and carry out probate.
Probate when someone has died intestate is broadly the same as when there is a Will, except that who can inherit is defined by the law, rather than any wishes of the deceased that they failed to place into a Will.
Generally, the law favours surviving spouses and civil partners of the deceased, followed by children, grandchildren and other descendants. Where there is no spouse, civil partner, children or other direct descendants, other relatives such as parents and siblings may be able to inherit.
What shall I do if the beneficiary of items in a Will has died?
This will depend on the circumstances. In many cases, if a beneficiary of a Will dies before the person who created the Will (the testator), or a beneficiary dies during probate, their share of the inheritance will be split amongst the other beneficiaries. However, this is not always the case, so if you find yourself dealing with this situation, it is essential to discuss this with an experienced probate solicitor.
Questions about probate disputes
Can you contest probate?
Yes, depending on the circumstances. There are three main reasons you might be able to challenge probate, these being where you believe one of the following:
- The Will does not genuinely reflect the deceased’s wishes e.g. because the Will was not executed properly, was made when the deceased was not of sound mind or is a forgery.
- The Executor or Administrator is not handling probate correctly.
- That the Will did not make reasonable provision for your needs (i.e. making an Inheritance Act claim).
Whether your claim has a realistic prospect of succeeding can be complicated to determine, so we recommend speaking to our team as soon as possible, especially as it is usually easier to challenge probate before probate has been granted.
How can I stop a grant of probate?
You can temporarily prevent probate being granted by ‘entering a Caveat’ at your local probate registry. This involves submitting a form and paying a small fee. Probate can then not be granted for the next 6 months or until the Caveat is withdrawn.
You can extend a Caveat by another 6 months at any time, allowing you to effectively delay probate indefinitely if required.
What do I do if someone challenges a Will?
If you are acting as the Executor or Administrator or an estate, or you are a named beneficiary of an estate, you cannot ignore a legal challenge to the Will. You should take specialist legal advice as soon as possible, so you can minimise the risk of any harm to your interests or those of your loved ones.
Most Will disputes can be resolved out-of-court through negotiation, mediation and other types of alternative dispute resolution, so please get in touch to discuss your options.
Get in touch with our probate solicitors in Bridgend, Rhondda Cynon Taff and the surrounding area
If you need any help with any part of the probate process, contact your local Devonalds office at Tylorstown, Tonypandy, Talbot Green, Treorchy, Pontypridd or Bridgend to talk to one of our expert South Wales probate solicitors today.