If you have been appointed Executor of an Estate it is important to understand what your duties are and how the Probate process works. The Probate process involves a number of steps and the key thing is to be as organised as possible.
Do you want to be Executor?
If you do not want to act as an Executor, e.g. due to ill health, you may relinquish your right by signing a ‘Deed of Renunciation’ and the other named Executor (if there is one) can be the sole Executor. If there is no other Executor named in the Will then the Court can appoint one. An application must therefore be made to the Probate Registry Office in order to do this.
Can I deal with Probate myself or do I need a Solicitor?
In order to deal with the deceased’s Estate you must apply for a Grant of Probate. You can do this yourself by making a personal application or you can appoint a Solicitor or other Legal Representative to assist you. Note that Probate is generally required where the Estate is worth more than £5000.
Through a Solicitor or Lawyer
If you appoint a solicitor to assist you, during your first meeting you should take with you the death certificate, identification documents (for yourself and the deceased) documents relating to the deceased’s assets and liabilities and evidence of funeral expenses. They will go through the probate process with you and will assist you to apply for the Grant of Probate.
The Solicitor will prepare the necessary tax forms and will draft the Oath for Executors which the Executors will need to sign in front of an independent solicitor as their signatures must be witnessed.
If the deceased left assets worth more than £325, 000 and there is Inheritance Tax to pay, a full tax return will need to be completed on form IHT 400. The tax return will include details of all the deceased’s assets and liabilities. The form must be signed by all the Executors.
If the deceased’s Estate is less than £325, 000 (the current IHT threshold), in most cases, a short tax return form called IHT 205 can be completed and can be sent directly to the Probate Registry Office without having to be submitted to HM Revenue and Customs.
If you are applying for Probate without legal representation, you need to contact your local Probate Registry office directly and arrange an appointment to attend their offices to submit a personal application.
What documents do I need?
You will need to have the original death certificate to hand. You will also need to have details and documentation relating to the deceased’s assets, e.g. bank statements, share certificates, policy documents and title deeds (if a property was owned). You will also need evidence of any liabilities/debts owed by the deceased, e.g. loans, credit cards and mortgages. You will also need confirmation of funeral expenses and details of any lifetime gifts made by the deceased.
Any IHT due on the Estate must be paid within 6 months of the date of death. Grant of Probate will not be issued until IHT is paid. Note that IHT can be paid in instalments where land or property is involved and payments can be made annually over 10 years, however, once the land or property is sold the entire balance must be paid.
How long does it take to get Probate?
It is difficult to say exactly how long it takes for Probate to be granted since it will depend on a number of factors, such as the size of the Estate, the availability of the Executors ( e.g. if they are based abroad it will take longer getting all the paperwork checked and signed). Click here for information on time scales when applying for Probate.
What happens after Probate is granted?
Once the Grant of Probate is received the Executors have the authority to deal with the deceased’s Estate and distribute the assets in accordance with the terms of the Will. Note if there was no Will the Estate is distributed in accordance with the strict Intestacy rules.
Litigation claims involving probate have become increasingly common over the years. People are contesting or disputing Wills due to various reasons such as the following:
- The Will has been drafted negligently and not in accordance with the deceased’s wishes
- The deceased lacked capacity when signing the Will
- A family member or dependent has been left out of a Will (in which case, if successful, the Estate may be redistributed)
- Disagreement over the appointed Trustees or Executors
The Solicitor and Executors should be on the look out for any potential claims or disputes. It is therefore important to take thorough instructions from the outset in relation to the deceased’s circumstances including their domestic set up.