Probate Explained

A grant of probate can be obtained when the deceased has left behind a valid will and the executors are appointed by the will. Up to 4 executors can apply for a grant of probate. The will provides the executives with the legal authority to deal with the estate, which is confirmed by the grant of probate. This grant is used as evidence of the executor's authority to act on behalf of the estate. This could be for example to access the deceased’s bank accounts, to sell or transfer shares, to legally sell property owned in the testator’s name etc.

 

Letters of Administration with Will Annexed

An application for letters of administration with the will annexed is made when issues arise surrounding the appointment of executors within the will. This grant is commonly required when the appointment of the executor was not drafted correctly within the will, or the will is valid, but either: the testator did not appoint an executor, the executor died before the deceased, they renounced their role or perhaps they are unable or unwilling to act (e.g., due to mental incapacity). This is also required when the estate is partially intestate, meaning that the residue estate has not been effectively disposed of by the will. An example of this is when the beneficiary passes away before the testator and the testator has left them a gift in their will.

 

Order of Entitlement

The Non-Contentious Probate Rule 20 outlines the order of entitlement to a grant in this situation: -

• Executor (this only applies when part of the residue estate is intestate);
• Trustee of the residuary estate;
• Any other residual beneficiary, or anyone entitled to a share in the undisposed residue (where there is a partial intestacy);
• Personal representatives of anyone in the above section other than a life tenant of the residue;
• Any other beneficiary or a creditor; or a
• Personal representatives of anyone in the above section other than a life tenant.

 

Renunciation

Anyone entitled to apply for a grant can renounce at any time. The right to renounce is not lost by intermeddling in the estate.

Letters of Administration

Letters of administration are required when the deceased dies intestate, or when there is a will but the gifts have failed. This grant gives the personal representatives the legal authority to administer the estate following the statutory rules of intestacy. The personal representative can only act on this once the grant has been approved. Between the date of death and the approval of the grant, this authority is vested in a Public Trustee.

 

Before a grant can be obtained, any inheritance tax which may be due must be paid first. This means that personal representatives may need to access and sell some of the assets within the estate to cover costs. Solutions to this may include borrowing money from the beneficiaries or a bank

 

In exceptional cases, HMRC may allow the grant to be obtained on credit if the personal representatives can show that it is impossible to pay the tax ahead of the assets being released to them. Inheritance tax on particular assets is permissible to be paid in instalments. Tax on these assets will not be charged for the first six months from the end of the month in which the deceased died.

 

Normally, a solicitor will be instructed to deal with the pre-grant procedure concerning probate. A probate solicitor will need to acquire a lot of information as part of the process. Further to this, additional work will need to be conducted such as registering the death, valuing any assets and verifying the validity of the will.

 

This is a list of the information which you should gather and provide to your solicitor (if you have one) to ensure the smooth running of the process from the outset: -

• Full personal details of the deceased, family, dependants, personal representatives and beneficiaries;
• Details of all assets and liabilities;
• Details of all lifetime gifts in the seven years before the testator’s death;
• The death certificate;
• The original will (and any codicils);
• Details of any insurance policies in place;
• To disclose any immediate financial needs of any family members; and
• Details of any funds that can be accessed without a grant, such as pension lump sum benefits, life assurance policies within a trust and jointly owned bank accounts.

 

How we can help

Lestons currently second such work to a third-party independent specialist, please note we make no commission from these referrals but do need clients to open a case so that we can prepare a brief for them. To gain our assistance you need to open a case, this is done by taking advantage of our free consultation service, activated by the link at the top of the page, should you wish to start a case the caseworker will send you the suitable payment link.

Please note your caseworker can only give generic advice, their role is to prepare your details for handling by our legal team and to act as your point of contact, they will also issue you with your Password and PIN, these will be needed to log onto your client dashboard. From your dashboard you will be able to manage and view every aspect of your case, upload documents, images, files etc.