Introduction

The law and procedure relating to probate differs in different parts of the United Kingdom. The information in this section relates to probate in England and Wales. For information on probate in Scotland, please click here (PDF file help). For information on probate in Northern Ireland, please click here (PDF file help).

What is a Grant of Probate?

After a person’s death, all their assets, including their bank and building society accounts, are automatically frozen. This is the case whether or not they left a Will.

If a person left a Will, the people appointed as Executors in the Will must apply to the Probate Registry for a Grant of Probate. This Grant gives them the authority to deal with or “administer” all the property and other assets belonging to the person who has died.

As part of the application, the Executors will need to provide to the Probate Registry a valuation of the deceased’s assets. Probate will not usually be granted until all or some of any Inheritance Tax that is due has been paid.

Only when the Grant of Probate is made, are the assets unfrozen and the Executors can then distribute them in accordance with the deceased’s wishes as set out in their Will.

Is a Grant always Required?

The Executors will not, however, need to apply for Probate if everything the deceased owned was held in joint names with their spouse or civil partner or if their only assets were Bank or Building Society Accounts that contained less than £5,000. The specific Banks or Building Societies may be prepared to pay the money to the person or people entitled to it without seeing the Grant. In this case, the deceased’s estate can be distributed immediately.

Valuation Process

The Executors need to collect details of all the property and all the debts belonging to the deceased.

The property will include any house, car, furniture, savings, life insurance policies, personal possessions, jewellery and anything capable of being valued and of being transferred to one person to another. Account will also need to be taken of certain assets that the deceased gave away during the seven years before they died.

The liabilities may include a mortgage, outstanding bills, etc and will also include the funeral expenses.

For help in valuing the deceased’s estate, please click here (PDF file help).

Unless the deceased’s estate is very simple and Probate is not required, the Executors should consider appointing a Solicitor for the application to the Probate Registry and for help administering the estate.

To find a Solicitor in your area of England and Wales who specialises in Probate work, please click here.

For further information about valuing the estate, please go to www.direct.gov.uk

Valuation of Property

Usually, the most valuable asset in the estate will be the deceased’s house. The open market value can be used in assessing the value of this. If the property is straightforward then the Executors can estimate the value themselves. The best way to do this is look at advertisements for the sale of similar properties in local estate agents and in local newspapers. They should also look the Land Registry website at www.landregistry.gov.uk which will show all the properties in the area that have been recently sold.

However, with the problems in the housing market continuing, the Executors may want to consider instructing a Chartered Surveyor to give a professional probate valuation. The reason for this is to ensure that the house is not overvalued as this will result in an additional and unnecessary inheritance tax liability.  It may be worth the expense as HM Revenue & Customs are more likely to accept a valuation if it is provided by a Chartered Surveyor.

For more information on valuing property for probate purposes, please click here (PDF file help).

To find a Chartered Surveyor in your area, please click here.

Application to the Probate Registry

When the valuation has been completed, the Executors must swear an affidavit or oath before a Solicitor.

In the oath, the Executors must confirm that they are appointed by the Will. They must give the value of the gross and net estate of the deceased and they must swear that they will ensure that the estate will be distributed in accordance to the law and the terms of the Will.

It will also be necessary to submit an Inland Revenue Account setting out all the assets and liabilities in the estate. However, HMRC (HM Revenue & Customs) allows a large number of low value and other estates where no inheritance tax is payable for various reasons to be “excepted estates.” In these cases, a brief return of information about the estate as a whole is all that is required.

If you are in any doubt as to whether you should be filing an Inland Revenue Account, you should contact the Probate and Inheritance Tax helpline on 0845 30 20 900. You can also visit the relevant part of the HMRC web-site at www.hmrc.gov.uk/cto/iht.htm

When the oath has been completed and sworn, the application to the Probate Registry can be made for a Grant of Probate. The Executors can apply in person or instruct a Solicitor to apply on their behalf.

The application may be lodged at either the Principal Registry (in London) or one of the Probate Registries of the High Court (in other cities and main towns).

To find your local Probate Registry please go to www.hmcourts-service.gov.uk

How Long Will it Take?

As each person’s circumstances are different, it is difficult to predict with any certainty how long it will take to firstly obtain the Grant of Probate and to then administer the estate. As a rough guide, it should take six to nine months for an estate that includes property.

The reason why the process is slow is that it is normally not possible to collect the assets (apart from joint accounts which automatically pass to the survivor) or indeed to pay the liabilities of the estate out of the assets until the Grant has been obtained. This is because all official bodies including Banks, Building Societies, Stockbrokers and Estate Agents will want to see sight of the Grant before proceeding with any sales or transfers to the Executors.

Very often, estates which appear on first sight to be simple prove to be complicated. Conversely, a large estate may prove to be straightforward and problem free.

Typical factors which can create problems and complicate the process include:

1. The need to go through and sort out numerous old papers.
   
   
2. Searching for details of lifetime gifts which the deceased may have made.
   
   
3. Difficulty in realising assets or in settling tax or other liabilities.
   
   
4. Difficulty in tracing beneficiaries or in dealing with beneficiaries who are under age.
   
   
5. Foreign property and the need to liaise with foreign lawyers.
   
   
6. Trusts in which the deceased had an interest.
   
   
7. Agricultural or business property, especially Lloyd’s assets which can’t be wound up for at least three years.
   
   
8. Agreeing the values of specific assets with the Inland Revenue.

You should be aware that there may also be an opportunity for tax planning and the use of a Deed of Variation (by which the effect of the Will can be varied in order to reduce tax).

Final Winding Up

Once all the assets have been collected and all the liabilities have been discharged, the net balance of the estate can be ascertained. This balance can then be distributed to the beneficiaries as dictated by the terms of the deceased’s Will.

If the estate or its administration is particularly complex and therefore taking considerable time to sort out, it may be possible for the Executors to make interim distributions to beneficiaries before the final winding up.

When a Solicitor has been employed, they will usually prepare Estate Accounts setting out the full details of the administration of the estate.

The Solicitor’s fee should be calculated in accordance with the Solicitors’ Remuneration Order 1972. This provides that a Solicitor’s remuneration for non-contentious (i.e. non-litigious matters should be fair and reasonable having regard to the circumstances of the case. The most important factor is the time they actually spent. Other factors such as the complexity of the estate, the skill involved and the need for urgency will also be taken into account.

Further Information

For further information on Probate, please go to www.direct.gov.uk

For further information on Inheritance Tax, please go to www.hmrc.gov.uk



Please note that information which we provide through Lasting Post is in outline for information or educational purposes only.  The information is not a substitute for the professional judgment of a Solicitor, Accountant or other professional adviser.  We cannot guarantee that information provided by Lasting Post will meet your individual needs, as this will very much depend on your individual circumstances. You should therefore use the information only as a starting point for your enquiries.