What is probate?
Probate refers to the right to administer the estate of someone who has died.
There are two types of representation for a person who has died. If there is a will, there will be an executor of that will who may need to apply for a grant of probate which is issued by the probate registry. If there is no will someone, usually a close relative, must apply for a 'grant of letters of administration' which will appoint him as an administrator. Both grants of representation are often referred to as grants of probate.
Once granted, the personal representatives being the executor or administrator can administer the estate.
The Grant of Representation
A grant of representation may not be required if the deceased's assets are valued at, generally, less than £5,000 or if they owned all their assets jointly with someone else – a spouse for example. In such a case, the assets would automatically pass to the joint owner.
In practice these exemptions are subject to the internal policies of many institutions: recently banks have required a grant in order to transfer assets in all cases. This is an internal matter for the institutions themselves and it may be worth approaching them ahead of time before incurring the expenses of obtaining a grant.
Duties of Executors and Administrators
Whether an executor or an administrator, the personal representative's duty is to ensure that the estate is administered according to the law and, if applicable, the will. If there is no will the representative is required to follow the rules of intestacy.
The duties placed upon a personal representative are fairly onerous as they are personally liable for any errors in distribution of the estate so the help of an experienced solicitor is essential.
Practical Requirements
The representative is required to collate details of the deceased's assets and liabilities as of the date of death. Additionally, the representative must also determine whether inheritance tax is due on the estate - many assets transfer without being subject to tax.
The distribution of assets cannot be completed until all claims against the assets have been notified. Individuals have six months from the date of grant of probate to make a claim.Once the notification deadline has passed, it is the representative's responsibility to pay the debts and any taxes owed, prior to distributing remaining assets from the estate.
Once the debts and any taxes have been paid, any property has been transferred or sold and investments cashed, a set of estate accounts should be prepared. The representative signs them, and once the beneficiaries have approved them, the accounts are sent to the probate court for their approval. Once approved, the distribution of the estate to the beneficiaries can proceed, and the estate is closed.
Timeline
In total the closing of a straightforward estate may require a year to complete. In the case of highly disorganized personal affairs, complicated estates or disputes; the process may take much longer.
Getting Help
If you need help preparing a will or if you have been appointed as a personal representative and need assistance, the advice of an experienced solicitor is essential, contact p.flaherty@osmondandosmond.co.uk or will@osmondandosmond.co.uk or by telephone on 0207 583 3434.
In most cases, we can arrange a free initial consultation.
