Dealing with the death of a loved one is an emotional and daunting experience, and this can be exacerbated if you are responsible for dealing with their affairs and potentially applying for probate.
This is a process which many people experience for the first time during a challenging period in their lives.
Our Wills, Trusts and Probate Lawyers answer some common questions we receive from our clients and clarify various misconceptions about the probate process to help make matters a little easier.
What is probate?
Probate is the formal authority given by the Probate Registry to a person dealing with the estate of someone who has died.
Probate is a collective term covering a ‘Grant of Probate’, a ‘Grant of Letters of Administration’ and a ‘Grant of Letters of Administration with Will Annexed’.
Which of these types of probate needs to be applied for depends on such things as whether the deceased left a Will and whether the executors named in the Will are making the application themselves.
Do I still need to apply for probate even if there is a Will?
Yes, a probate application is often required even if the deceased left a Will.
Whether or not probate is required is more dependent on the type and value of the assets involved in the estate, rather than whether there is a Will.
For example, probate is almost always required if the deceased owned a property, and some banks may refuse to pay out monies from a deceased’s accounts if they hold funds above a certain threshold (e.g. £30,000, but this will vary from bank to bank).
How long does probate take?
Before an application for probate is made, there is an information-gathering stage in which all the estate's assets and liabilities must be ascertained.
Once this has been done, any inheritance tax must be paid to HMRC before the probate application can be made.
Once the Probate Registry receives the application, it aims to issue probate within 12 weeks.
This timescale may be faster in more straightforward cases (e.g., where the executors of a Will are making an online application) and slower in others (e.g., where a postal application is required).
What is the difference between executors, trustees and administrators?
The terms ‘executors’ and ‘trustees’ are often used interchangeably and can become confused with each other.
Indeed, a person can appoint the same people to fulfil the roles of executors and trustees in their Will.
When a person dies, leaving a Will, their executors will be tasked with dealing with the practicalities of administering the estate.
Amongst other things, the executors will need to collect in the assets, pay any debts, make sure any property is both insured and secured, and make the probate application.
Once the estate is collected in and fully accounted for, the responsibility passes to the trustees.
The trustees will need to hold the remaining ‘pot’ of monies/assets for the beneficiaries named in the Will.
This may only be for a very short period of time if the deceased makes outright gifts in their Will, or it may cover a longer period if, for example, the deceased included a trust in their Will.
Administrators are the people who deal with a person’s estate if they die without a Will, or if the executors of the Will are not willing or able to administer the estate themselves.
Unlike executors, who can point to the terms of a deceased’s Will to show that they are authorised to act in that capacity, administrators must wait until they have applied for and been granted probate before they fully take on their role.
Will I inherit the debts of a person who has died?
The short answer is no.
If a person dies owing debts, those debts will be paid out of the person’s estate.
The executors or administrators will be responsible for arranging the payment of debts from the deceased’s estate. Still, neither they nor the deceased's family will take on the debts in a personal capacity.
Exceptions to this include if someone took out a joint loan with the deceased or provided a guarantee to repay any debts owed by the deceased.
Do all a person’s assets need to go through probate?
No, they do not.
Even if probate is required to handle certain assets, this does not mean that all a person’s assets need to wait for probate before they can be dealt with.
For example, the deceased’s personal belongings, such as their car, can be sold or transferred into another person’s name before probate is granted.
Also, any assets the deceased owned in joint names with another person will pass to the surviving joint owner, provided that the ownership is as ‘joint tenants’ rather than ‘tenants in common’.
You should take legal advice before dealing with any joint assets if you are unsure of the ownership.
Life policies may also be paid out independently, as well as pensions (until April 2027, following the proposed changes in the Autumn 2024 Budget).
Contact Our Probate Lawyers
If you need further assistance with administering an estate, please contact our specialist STEP-qualified Wills, Trusts and Probate team on: