Probate- Guides

Law-Answers.com's help desk on Wills & Probate 

This provides many useful link to help deal with the probate process. The death of a family member or close friend is a challenging time and often we are not prepared for the practical steps required that follow the event.

On this page there are some further useful links to guides on what practical and legal steps are needed following a death. 

See also the LawDocs4All Death & Funerals Guide.

An overview of probate: Guide

"Technically, probate is a legal document that appoints executors (named in the last will and testament) and grants them legal power to administer the estate of the deceased. Probate is the process that proves that the will is valid. Without it, executors rely on the validity of the will to authorise their actions. If the will was invalid, the executors would be acting without power, and could be pursued for damages by creditors or beneficiaries.

But more generally, probate is also used to mean the process of administration. To carry out probate work is to administer the estate."  Netlawman.co.uk

Obtaining the forms you need to apply for probate: Guide

"Obtaining a grant of probate is only necessary if the value of the estate exceeds £5,000.

But obtaining a grant might be beneficial if you have to deal with banks, building societies, pension fund managers and insurance companies, as these institutions sometimes impose their own rules as to when a grant is required to transfer assets to you. The Principal Probate Registry or any district office provides the forms required to apply for a grant of probate. They should be requested as soon after the will has been found as possible so that the executors can complete them as the inventory process progresses." Netlawman.co.uk

How to carry out an inventory of an estate as part of the probate process: Guide

"When you apply for a grant of probate, you need to pay inheritance tax (see Inheritance Tax Guide below) due on the estate at the same time. Until you know the value of the estate, you can’t calculate how much tax is due. So one of the main tasks for the executors is to produce a list of all the property, possessions and debts of the deceased at the time of his or her death, and a valuation for each.

Most executors start by making an inventory of physical possessions in the home of the deceased. If family still live in the property, this obviously needs to be done sensitively. It also needs to be done thoroughly and ideally before people with access to the property remove items which they think they were given.

Even if an asset has no obvious value and has been left to a beneficiary, it should be recorded on the inventory. Additionally, the value of the deceased’s share of jointly held assets should be recorded. So if a car was jointly owned, the half ownership and the half value should be listed. That applies for assets passed by survivorship, such as homes owned in a joint tenancy." Netlawman.co.uk

Applying for a grant of probate: Guide

"Before applying for probate, you need to complete a number of forms. These include the actual probate application form, but also forms that determine whether inheritance tax is due on the estate. You can obtain the forms from either the Principal Probate Registry or any district office. Return them by post to the Principal Probate Registry." Netlawman.co.uk

Role and responsibilities of executors of a will: Guide

"An executor is a person responsible for the administration of the estate of someone who has died. Estate is simply a word that means the assets and debts of the deceased. Very generally, administering the estate is the process of identifying the contents of the estate, collecting them together and then distributing them as closely as possible in line with the deceased’s wishes in his or her will.

The job of an executor is very much one of creating and managing paperwork. It requires writing to, and chasing up various parties, and meticulous record keeping." Netlawman.co.uk

Choosing executors, trustees and guardians: Guide

"Your will gives legal rights and powers to the named executors. These rights and powers qualify them to assemble the necessary papers to the government probate registry (part of the Justice Ministry) that they may manage your estate by calling in all the assets, paying the debts and distributing the rest in accordance with your will.

When probate has been granted, the executors can start to collect the assets which comprise your estate. The document issued is circulated to each debtor, creditor, authority and other affected organisation with a request for the appropriate action. The executors then decide what to do with each asset. This is usually a matter of 'keep or sell'.

Executors also have to understand your exact wishes, make sure they are in accordance with the law, and carry them out. Their obligation is limited to doing what you ask in your will. They take no account in law of anything else." Netlawman.co.uk

Assessing whether inheritance tax is due: Guide

"The executors need to determine whether the estate qualifies as “excepted”, “exempt” or neither. If neither, tax will be payable.

It is the value of the ‘gross’ estate that is important for calculating inheritance tax payable. The gross estate can include the value of gifts made and income received from trusts during the lifetime of the deceased, if those gifts or that income would be chargeable to inheritance tax.

An excepted estate is one where the gross estate value for inheritance tax does not exceed the excepted estates limit set by HMRC (currently linked to the IHT threshold). An exempt and excepted estate is one where:

• the gross value of the estate is less than £1,000,000 in total; and where
• the value of the estate is less than the excepted estates limit after deducting the value of the part of the estate that is passed to the deceased’s spouse or civil partner (who must be domiciled in the UK) or to a charity.

In other words, if the value of an estate is greater than the excepted estates limit, it may still not qualify for inheritance tax if the majority of the value is passed to a husband or wife or to a charity." Netlawman.co.uk

Distributing an estate and the rules on intestacy: Guide

"If someone dies without having made a will, or if their will is invalid (for example, the signature was not witnessed correctly), then they are termed “intestate”. There are rules as to who can administer the estate of someone who has died intestate, and to whom it is distributed.

In short, the estate is distributed in an order that prioritises the closest family members first, and the Crown last. But the rules are complicated.

The debts of the estate are paid first, using assets (including cash) that form the residuary estate (i.e. not using gifts specifically left to an individual or group). If the value of the residuary estate is less than the debts (i.e.  the remainder after specific gifts have been set aside is not enough), then gifts of cash are reduced proportionately to meet the debt. If these are still not sufficient, specific items left as legacies will need to be sold to raise the required amount." Netlawman.co.uk

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