Probate FAQ

 

What is Probate?

Probate is the legal recognition, through a court order, of the validity of a Will. It confirms the authority of the executor to manage the deceased’s estate and dispose of property as the Will set out.

How long does Probate take?

After swearing the oath, you will receive the grant of Probate within 10 working days.

Where do I find a copy of the Will?

If the will is not found in the deceased person’s property (for example in a filing cabinet), it may be held by his or her solicitor, bank, a company which stores wills or the London Probate Department.

How do I know the Will is valid?

The Probate Registry office will tell you if the Will is valid or not, and why. There are lots of reasons why a Will can be invalid, for example if it is not witnessed and signed properly, if the testator did not have testamentary capacity (they were not of sound mind when the will was made).

I am named as an executor – what do I need to do?

You will need to find out if the death has been registered and if a death certificate has been issued. The probate forms need to be filled out, inheritance tax calculated and the paperwork as described above gathered. You should also check on the deceased’s property to ensure it is being taken care of and secured. The property needs to be valued and all interested parties need to be contacted – for example banks who the deceased had accounts with. Inheritance tax needs to be paid. Once Probate is granted, contact all interested parties to inform them you are authorised to deal with the deceased’s property. You need to find out if the deceased owned any debts or owed any tax (HM Revenue & Customs can tell you this). You will need to apply for a Clearance Certificate which will certify that any inheritance tax owed has been paid. Find out whether anyone has made a claim under the Inheritance (Provision for Family and Dependants) Act 1975, as this may affect the dispositions of property to beneficiaries. You can then distribute the property from the estate and its residue. R185 forms need to be given to residual beneficiaries. When all of the estate dispositions have settled, you can close the deceased’s accounts.

What happens to debts owed by the deceased?

Find out whether debts were joint (for example, if the deceased was a joint tenant in a property with his or her spouse) or in the deceased’s sole name. Liability for joint debt may pass to the other debtor. You need to inform any creditors of the deceased’s death. The deceased may have had any insurance which will cover debts. You can protect yourself from a surprise creditor by advertising for creditors before applying for Probate. The debts must be listed on the application. When Probate is granted, you need to organise paying any debts before you can distribute the remainder of the estate among the beneficiaries. Secured debts such as a mortgage must be paid first, followed by funeral costs, then unsecured debts such as credit cards and bills. The beneficiaries of the estate will receive what is left after debts have been paid. If the value of the estate is not sufficient to cover the debts, the estate is insolvent.

When do I need to pay inheritance tax?

Inheritance tax needs to be paid within 6 months of the deceased’s death. You can be charged interest on a late payment. You need to pay some of the inheritance tax bill before Probate will be granted. You will be told if there is more to pay afterwards.

Who can contest a Will?

A will might be contested by someone who seeks a declaration that the will is invalid and that the rule of intestacy should apply, or someone who was “maintained by the deceased” (i.e. financially dependent on him or her) and this was not provided for in the will, or someone who was promised something by the deceased while he or she was alive and the will did not provide for this, or someone who believes the deceased did not have testamentary capacity when making the will, or someone who believes the deceased was under undue influence when he or she made the will. There is no requirement that the person contesting is a family member.

As an executor, can I be sued?

Yes. As an executor you are liable to any beneficiaries who do not benefit from the will as a result of your mistakes, any creditors who are not repaid as a result of your mistakes (unless the estate is insolvent), fines or interest charged to the estate by HM Revenue & Customs, funeral expenses (if the value of the estate does not cover them), taxes charged as a result of your mistakes and making incorrect dispositions to beneficiaries which cause loss to them and others. Liability is extensive so it can be useful to obtain executor liability insurance or legal advice.