What is probate?

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Access Legal's expert probate solicitors can help you if you've suffered a bereavement and been named an executor, if your loved one died without leaving a will and you're not sure what to do next, or if you're just uncertain about things like inheritance tax.

Although probate is a frequently used term, like so many bits of legal jargon it seems designed to confuse rather than inform.

When a person dies, someone has to deal with their affairs (also known as "administering the estate") and the procedures and rules for doing so are subject to specific legal requirements.

This entire process is called probate - the steps undertaken to verify or 'prove' that a will is legally valid and the person nominated or selected to oversee the estate administration has the right to distribute the deceased person's assets and manage their affairs as per the deceased's wishes.

I want to know

How long does Probate take?

It can be a lengthy process, taking up to a year, perhaps longer if things are not straightforward. Many different organisations could be involved, such as banks, building societies, insurance companies and HM Revenue & Customs, as well as individuals who might claim against the deceased's estate.

If there is more than one personal representative they must work together to decide matters between them. Disagreements can cause expensive delays.

More about Inheritance Tax

Personal representatives are also responsible for finding out if inheritance tax is due as a result of a person's death. If it is, the personal representative has to make sure that it is paid. Whether inheritance tax needs to be paid depends on how much the property and belongings of the dead person are worth, the value of any gifts that they gave before they died, who they gave these gifts to and, in some cases, the value of certain trusts, pensions and insurance policies.

You can find out more by looking up the HM Revenue & Customs website at www.hmrc.gov.uk or by contacting us at Access Legal.

Probate where there is a will

If the person who has died leaves a will, it will usually name one or more executors. These are the people who they wanted to administer their estate. Executors can include relatives or, in some cases, the deceased's solicitor.

If you are nominated as an executor you may need to apply for a grant of probate. This is an official document which the executors need to show that they have the legal right to administer the estate. It is issued by a section of the court known as the probate registry.

If executors have not been appointed, or do not want to act, you may need to apply for something called letters of administration. Probate will normally be required if the person who has died left more than £5,000, had stocks or shares, owned a house or land or had certain insurance policies.

Where there isn't a will

If the person who died didn't make a will (known as dying intestate) the process is more complicated. Someone still needs to sort out their affairs, but they will be called an 'administrator' rather than an executor and will usually be a close relative of the person who has died.

An application for a grant of letters of administration (a document issued by the court that allows them to administer the estate) will need to be made. Both executors and administrators can also be referred to as 'personal representatives'.

What are the responsibilities of personal representatives?

Personal representatives (whether executors or administrators) have a duty to ensure that the estate is administered correctly. If there is a will, they must make sure that the wishes of the person who died are followed as set out in the will. If there is no will, they must follow the rules of intestacy.

Contact Access Legal and we'll be happy to explain these in more detail.

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At Access Legal we offer sympathetic advice that can help you with the legal requirements and responsibilities following a death whether there is a will or not.

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