What is Probate?
Upon the death of a testator (i.e. someone who
has made a Will) it is necessary for the executors appointed by
the Will to make an application to the Probate Registry (a part
of the High Court) for a Grant of Probate. The Probate application
must be supported by an Oath sworn by the executors exhibiting the
Will. The Oath recites personal details of the deceased, incorporates
undertakings on the part of executors that they will administer
the deceased’s estate according to law and contains a statement
of the value of the deceased’s estate. In order to prepare
an Oath solicitors need to obtain valuations of all of the deceased’s
assets and liabilities.
If the deceased’s estate exceeds £240,000
(@ June 2004) solicitors must also prepare a complicated Account
which has to be submitted to and agreed by the Capital Taxes Office
of the Inland Revenue before an application can be made to the Probate
Registry for a Grant of Probate.
If an estate exceeds the Inheritance Tax Threshold
of £263,000 (@February 2004) solicitors have to calculate the amount
of Inheritance Tax payable reflecting any allowances and exemptions
available. Inheritance Tax on real property (land) is payable by
instalments whereas Inheritance Tax payable in respect of personal
property (stocks and shares, money invested with banks and building
societies, proceeds of the insurance policies if due to the estate,
jewellery and household contents) has to be paid at the time an
Account is sent to the Inland Revenue. Solicitors may therefore
have to negotiate with banks and building societies prior to an
application for a Grant of Probate being submitted for an advance
against the deceased’s assets to enable Inheritance Tax to
be paid. Only when the Capital Taxes Office has confirmed that the
amount of Inheritance Tax paid is correct can solicitors proceed
to apply for a Grant of Probate. Depending upon the size and complexity
of a person’s estate dealings with the Capital Taxes Office
can be fraught and lengthy.
Once an application for a Grant of Probate has
been submitted to the Probate Registry it usually takes two to three
weeks to obtain a Grant.
If a person dies intestate (i.e. without having
made a Will) the process is similar to that above for a Grant of
Probate except an application is made for a Grant of Letters of
Administration. In such circumstances the law states who is entitled
to apply for a Grant.
The issue of a Grant of Probate is evidence of
the right of executors appointed by a Will to realise and dispose
of assets belonging to the deceased. The overriding responsibility
of executors is to ensure that the terms of a deceased’s Will
are scrupulously observed. Only when all assets have been realised/disposed
of and, debts of the deceased have been paid (including funeral
expenses and Inheritance Tax) may executors proceed to distribute
the (net) estate amongst beneficiaries named in the deceased’s
Will. Estate Accounts have to be prepared and approved before any
distributions are made. Executors may be responsible for investing
monies on behalf of infant beneficiaries having first taken independent
expert financial advice.
If you need advice regarding the affairs of a deceased
person you should in the first instance contact Margaret Riley
at Norcliffe & Co or e-mail margaret@norcliffe-law.co.uk.
She will arrange for you to come in see her to discuss matters at
which time she will provide you with details of our charging rates
and fees charged by the High Court for obtaining a Grant whether
that be a Grant of Probate or a Grant of Letters of Administration
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