What is Probate?
When somebody dies who has made a will, their executor administers the estate and distributes it to the persons or charities set out in their will (the beneficiaries).
If someone dies without a will, the law sets out who administers the estate (the administrator), who is a beneficiary, and what each beneficiary inherits.
Probate is the name normally used for this legal process of administering the estate.
A grant of representation (a grant of probate if the deceased left a will or a grant of letters of administration where the deceased did not make a will), is a court order given to the executor or administrator by the Probate Registry to enable them to deal with certain assets of the estate – for example, to sell a property.
This can be a little confusing as lawyers tend to use the word ‘probate’ for both the court order and the process of estate administration.
The confusion can be greater as there are very different timescales involved. If you hear someone say, “When dad died, probate only took three months”, that person is likely to be referring to the time it took to obtain a grant of probate for a simple estate.
On the other hand, if a friend says to you “Mum’s lawyer told me that probate is going to take 12 to 18 months”, that’s usually a reference to the length of time it will take to complete the estate administration.
When we talk of probate as meaning estate administration, there are six basic stages:
- Gathering paper and electronic documentation about the deceased’s assets and debts
- Valuing all assets and debts. This may involve a surveyor’s valuation of property and an auctioneer’s valuation of possessions but also confirmation from banks and financial institutions of date of death balances for accounts and investments, amounts owed on loans and credit cards, and so on.
- Calculating inheritance tax, paying inheritance tax, and applying for a grant of representation.
- Collecting in all assets and paying all debts and estate administration costs. This may involve selling property or possessions.
- Distributing the estate according to the will. This involves:
(a) transferring any assets left specifically to a beneficiary – e.g. “I give my car to my brother John”; and
(b) paying any gifts of money set out in the will (which should be done within 12 months of death, otherwise interest is payable to the recipient from the rest of the estate); and then
(c) distributing the rest of the estate to the ‘residuary beneficiaries’ set out in the will – e.g. “50% to my son Simon and 50% to my daughter Jess”.
If there is no will, the estate would instead be distributed in accordance with the intestacy rules.
- Drawing up estate accounts to show the residuary beneficiaries the extent of the estate and how it was distributed.
Probate can be complex and it can be risky. Executors and administrators can be personally liable for losses, even where they do not inherit anything from the estate.
Early professional advice is key to prevent problems.
If you are the executor or administrator of an estate, you can find a local Accredited Lifetime Lawyer who can provide advice and guidance on probate and estate administration using the Lifetime Lawyers ‘Find a Lawyer’ search tool here: https://lifetimelawyers.org.uk/Public/Radius-Search/Find-a-Lawyer