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What is Probate?

When a friend of family member passes away, people often discuss whether an estate will ‘need to go to probate’, although many people are unclear exactly what this means.

A Grant of Probate (or Letters of Administration if a person dies without a Will) authorises the Executor (or Administrator if there is no Will) to deal with the assets of the person who has died, for example, by closing or transferring bank accounts or collecting in money due to the estate, like pension payments. This in turn allows the Executor to settle any liabilities, taxes and legal expenses and then ultimately to distribute the estate to the beneficiaries.

Is Probate always needed?

If all the assets of the person who has passed away were held jointly, for example with a spouse, then Probate will probably not be needed, because those accounts remain the property of the surviving joint owner who can deal with the funds without needed the Grant of Probate to give them authority.

If the person who has passed away has only a few assets of low value, then it is also possible that Probate will not be required. Some institutions, including banks, will sometimes allow the Executor to close the accounts without Probate, if the account contains less than a certain figure (which varies by institution).

However, if the assets are more valuable, then it is usually the case that Probate is required.

How do you obtain the Grant of Probate?

The Executors are responsible for obtaining valuations of all the assets and liabilities of the deceased person as at the date on which they passed away. This usually covers everything, including bank accounts, pensions/wages, property, personal items, life insurance policies, stocks & shares and other investments, as well as money owed such as credit cards, mortgages or utility bills.

This information is then entered into Inheritance Tax forms, which indicate whether inheritance tax is due or not and this is filed with HM Revenue & Customs for complex estates, or simply with the Probate Registry for simple estates, together with the oath or statement which Executors must swear to confirm that they are declaring everything they are aware of and that they will carry out the instructions in the Will (if there is one).

The Probate Registry will then process the paperwork and produce the Grant of Probate, which the Executors can then show to the institutions to prove that they have the authority to deal with the deceased person’s affairs.

If you have any questions or queries about probate or about whether it is or is not required in a matter, then please contact Elizabeth Mitchell who would be happy to discuss things further with you.