How to Apply for a Grant of Probate

It is always difficult when a loved one dies, and if you are named as the executor of their will, there are many practical things that you will need to manage. One of the most important responsibilities is applying for a grant of probate. This legal document gives you the authority to distribute the deceased’s estate according to the wishes set out in their will.

In this guide, the expert wills and probate solicitors at Clough & Willis will walk you through every step of the probate process, explain when probate is required, and answer many common questions about estate administration.

Is a Grant of Probate Always Needed?

The need for probate depends on the size and nature of the estate. Applying for a grant of probate is required when the deceased’s estate includes property solely in their name, large bank balances, or significant investments. However, not all estates need probate, particularly when:

• Jointly owned assets pass automatically to the surviving owner. For example, if a couple jointly owned their home or held a joint bank account, those assets typically pass to the survivor without the need for probate.
• Low-value estates below certain thresholds (usually between £5,000-£50,000, depending on the bank or financial institution), may not require probate. In these cases, individual banks or asset holders may release funds after receiving a death certificate and appropriate documentation.

It’s also worth noting that probate is generally not required if the estate consists of only cash and personal possessions. However, whenever there is uncertainty, it’s advisable to consult a probate solicitor to clarify the estate's requirements. Errors in determining the need for probate can lead to unnecessary delays or complications later.

What Is a Grant of Probate?

A grant of probate is a legal document issued by the Probate Registry, which gives the executor the authority to handle the deceased’s estate. In simple terms, it is the formal approval by the court that confirms the executor’s legal standing to manage the estate.

This includes accessing bank accounts, selling property, and distributing the deceased’s assets to the named beneficiaries.

Without this document, financial institutions and asset holders will not release funds or allow the executor to sell or transfer property.

If the deceased did not leave a will, the process is slightly different. Instead of a grant of probate, the court will issue letters of administration to the next of kin, allowing them to act as administrators of the estate. Although the functions are similar, the administrator's role is governed by the rules of intestacy, meaning the estate is distributed according to legal guidelines, rather than the deceased's personal wishes.

The Role of the Executor

Being named as an executor is a significant responsibility. An executor is tasked with ensuring that the deceased’s wishes, as outlined in their will, are carried out properly. The executor's role includes:

1. Valuing the estate: Before probate can be granted, the executor must calculate the value of the deceased’s estate, which includes all assets and liabilities at the time of death. This helps the executor to settle taxes, debts, and other obligations.
2. Calculating Inheritance Tax (IHT): If applicable, the executor must calculate and pay any Inheritance Tax due on the estate. Calculating the tax liability is a critical step that must be completed before probate is granted.
3. Applying for a Grant of Probate: The next step in managing the estate is to apply for the Grant of Probate. Without this grant, the executor cannot access assets or begin the distribution process.
4. Settling debts: The executor is legally obligated to pay any outstanding debts, including funeral costs, mortgages, and loans, before distributing assets to the beneficiaries.
5. Distributing the estate: Once all debts and taxes are settled, the executor is responsible for distributing the remaining assets to the beneficiaries named in the will.

The executor's duties can be time-consuming and complex, especially if disputes arise among beneficiaries or if the estate involves complex assets like foreign property or shares in private companies. In such cases, working with a probate solicitor can help ensure that the estate is administered smoothly and in compliance with legal requirements.

Calculating the Value of the Estate

Before you can apply for probate, you must calculate the value of the deceased's estate. This process involves determining the total worth of the estate, including all assets and liabilities. Assets typically include:

• Property: This often makes up the largest part of an estate’s value. Executors should obtain formal valuations from estate agents or a RICS (Royal Institution of Chartered Surveyors) valuer. Getting multiple valuations can provide more accuracy.
• Bank accounts and savings: Executors must contact the deceased’s bank and other financial institutions with which they held accounts to obtain up-to-date balances. This may require sending the death certificate and proof of the executor's authority.
• Investments and pensions: Any investments, shares, or pension funds must be accounted for, as they form part of the estate. Contact investment companies or pension providers for valuations.
• Personal possessions: High-value items such as jewellery, artwork, and vehicles should be professionally valued.

Liabilities, such as outstanding mortgages, loans, or credit card debts, must then be subtracted from the value of the estate to determine the net value. It is important to be thorough, as mistakes in the valuation process can cause delays or inaccuracies in tax calculations.

Inheritance Tax Explained

Inheritance Tax is a key consideration when applying for probate. The current tax-free threshold for IHT is £325,000. If the value of the estate exceeds this amount, tax must be paid at 40% of the value that exceeds the threshold. The executor must submit an IHT400 form to HMRC and pay the tax due.

However, there are several reliefs and exemptions available, such as:

• Spousal transfers: Assets passed between spouses or civil partners are exempt from Inheritance Tax, regardless of the amount.
• Residence nil-rate band: This allows an additional £175,000 exemption when a home is left to children or direct descendants.
• Charitable donations: If 10% or more of the estate is left to charity, the IHT rate is reduced from 40% to 36%.

Executors must calculate and pay any IHT before probate is granted. In cases where the estate includes property, IHT can be paid in instalments over ten years, though interest may apply.

Common Challenges in Probate

Even with careful planning, the probate process can face several challenges. Common issues include:

• Will disputes: If beneficiaries disagree with the contents of the will, this can delay probate and potentially lead to legal proceedings. Disputes may arise if someone feels unfairly excluded from the will or if there are concerns about the will’s validity. While these do not have any legal bearing, they can result in delays.
• Difficulty locating beneficiaries: Executors are responsible for making reasonable efforts to locate all beneficiaries named in the will. This can be challenging if beneficiaries have moved abroad or changed their contact details.
• Foreign assets: If the deceased owned property or investments abroad, the executor may need to go through additional legal processes in those countries. This can complicate the probate process and extend the time needed to administer the estate.

It is often beneficial to work with a probate solicitor to navigate these challenges more effectively. This can help to ensure that the estate is administered smoothly and according to legal requirements.

Applying for Probate

Step 1: Calculate the Estate's Value

The first step in the probate process is to determine the value of the estate. This is necessary to calculate any Inheritance Tax due and to submit accurate figures to the Probate Registry. The estate’s value will determine whether you need to pay IHT and how the probate process will proceed.

Step 2: Complete the Necessary Forms

Depending on whether there is a will, you will need to complete the following forms:

• PA1P: For estates with a valid will.
• PA1A: If there is no will, this form must be submitted to apply for letters of administration.

Additionally, estates over £325,000 require the completion of the IHT400 form to assess and pay Inheritance Tax.

Step 3: Submit the Probate Application

You can apply for probate online or via a paper application. Online applications typically take 16 weeks, while paper applications can take up to 6 months. The Probate Registry will issue the grant once the application is processed.

Step 4: Pay the Probate Application Fee

For estates valued over £5,000, there is a probate application fee of £273. Smaller estates may be exempt from this fee.

What Happens After Probate Is Granted?

Once probate is granted, the executor can begin to administer the estate. This includes:

• Collecting assets: The executor can access bank accounts, investments, and sell any property.
• Paying debts: Before any assets are distributed, the executor must ensure that all outstanding debts, such as loans, credit cards, and taxes, are paid.
• Distributing the estate: After debts are paid, the executor distributes the remaining assets according to the terms of the will.

If any assets, such as property, need to be sold, the executor will oversee the sale and ensure the proceeds are distributed correctly.

What if There Is No Will?

If the deceased did not leave a will, the estate is subject to the rules of intestacy, which determine how the estate is distributed. In such cases, the closest family members, such as a spouse or children, will inherit. If there are no close relatives, the estate may pass to more distant family members.

In such cases, the closest relatives can apply for letters of administration, which gives them the legal authority to manage the estate. However, they cannot decide how to distribute the estate - this must be done according to the rules set out in the Intestacy Act.

Without a will, the estate may be more complex to administer, particularly if there are multiple potential heirs or if the deceased owned significant assets. In some cases, disputes can arise, especially if family members feel that the intestacy rules do not fairly distribute the estate. Executors or administrators dealing with intestate estates often benefit from legal advice to ensure they understand the rules and avoid disputes.

Why Use a Probate Solicitor?

While it is possible to apply for probate without legal assistance, many executors choose to work with a probate solicitor to ensure the process is handled correctly.

Here are some of the main benefits:

• Expert guidance: Our probate solicitors understand the complexities of estate law and can provide clear, step-by-step advice throughout the process.
• Handling disputes: If there are disputes over the will or disagreements between beneficiaries, Clough & Willis’ team can help to mediate and resolve issues.
• Avoiding mistakes: Errors in the probate application can lead to significant delays. Your solicitor will ensure that all necessary documents are correctly submitted.
• Complex estates: Large or complicated estates, particularly those involving property, investments, or foreign assets, can be challenging to administer. A solicitor from our wills and probate team can help you to meet all legal requirements and distribute the estate according to the law.

How Clough & Willis Can Help

At Clough & Willis, we provide expert probate services to help executors and families manage the estate administration process smoothly. Whether you are applying for a grant of probate, dealing with complex tax issues, or facing disputes, our experienced solicitors can guide you through every step. Our goal is to alleviate the burden from executors while ensuring that the estate is administered in accordance with the deceased’s wishes and the law.

If you need assistance with probate or estate administration, contact our team of experienced solicitors at Clough & Willis. We offer expert guidance and support to help you navigate the process efficiently and effectively. Call us today on  0800 083 0815, or fill in our online enquiry form to request a call back.