Call Us Today 01509 674444
Probate - do I need it ?
What is probate?
The term ‘probate’ refers to the Grant of Probate, which is a legal document that Executors may need to obtain when administering the estate of someone who has passed away. This process is referred to as ‘Confirmation’ in Scotland.
What is a Grant of Probate?
A Grant of Probate provides the Executor with the legal authority to carry out estate administration, which includes dealing with all of the deceased’s assets, legal affairs, debts, and more. Therefore, probate is one part of the wider estate administration process; the term is commonly misused by many to refer to the entire process of dealing with the estate of someone who has passed away. Whilst probate isn’t always required, an estate must always be administered.
​
When is probate required?
Whether or not probate is required does not depend on whether there’s a Will or not. Probate is usually required if the deceased owned assets or property in their sole name. In this case, a Grant of Probate is often needed in order to sell or transfer the property and release funds to the beneficiaries of the estate. However, if assets were held jointly, they will automatically pass to the surviving joint owner. Additionally, a Grant of Probate may not be required if:
1. Property is owned as beneficial joint tenants – it will automatically pass to the living owner through survivorship.
2. The estate is solely made up of cash and personal possessions.
3. The estate value is low – most banks will release funds of a low amount without probate.
​
How much money does an estate need to have before probate is required?
This depends entirely on the financial institution that the deceased held money with.
The probate threshold is independent to the bank or building society, and it is subject to change by each individual institution.
Typically, the probate threshold will vary from £5,000 to £50,000, although some banks will decide on a case-by-case basis. It is best practice to check whether you need probate to access funds with the relevant financial institution at the time.
The Probate Process
Who has to deal with Probate
When the deceased has left a Will, they should have appointed an Executor to administer the estate, including obtaining probate (if required). There may be more than one Executor administering the same estate, but only one needs to apply for the Grant.
​How much does a Probate Solicitor cost?
Probate Solicitors’ fees are sometimes calculated from a percentage of the estate, generally between 1-5% plus VAT and the probate fee. Other Solicitors may charge an hourly rate, meaning that you only pay for the work that is completed. This can be more difficult to predict, as unexpected delays could mean your fee increases. Some may charge a fixed fee that varies depending on the estate’s size and complexity.
​
Can a beneficiary be an Executor?
Yes, the Executor of a Will can be a beneficiary of the estate; it’s very common for the lead Executor to be the main beneficiary, but they should expect a complicated legal process that may require a lot of time and extensive paperwork. There are a lot of risks and responsibilities.
​
Personal Liability
As the Executor or Administrator dealing with the estate, you are financially and legally responsible for any errors that are made, regardless of whether they are entirely innocent or not. Your duties include:
-
Locating all assets and liabilities, a lot of this may be hidden in online accounts (passwords can be a nightmare)
-
Obtaining up to date values to complete Tax forms accurately without omissions
-
Correctly Interpreting the Will. A Will is a legally binding document full of Jargon
-
Inform property insurance providers. All properties that were solely owned by the deceased must be insured in the name of the executors of the estate.
-
The Executor(s) are legally responsible for the money, property and possessions of the estate, its not unusual for beneficiaries to help themselves! This is illegal before Probate is granted.
-
It is very common for an Executor to be a Trustee. As a Trustee there are additional responsibilities
-
Where the will specifies setting up of a trust, it is the executors responsibility to set up the Trust
-
The Executor(s) must ensure ensure the Inheritance Tax is paid within six months or interest will be charged
​
Can I get help at a more reasonable cost?
Yes, we have some excellent partners who can take on the whole process and relieve you of responsibility without the the usual high cost. For more information contact us or click on the link to Kings Court Trust.
​