Claire Fendley, paralegal in our private client team, offers an introduction to the process involved when executors need to apply for a grant of probate and deal with the assets of the estate.
Put simply, probate is the legal right to deal with someone’s property, money, and possessions (referred to as their ‘estate’) when they die.
An executor of that person’s estate may be required to obtain a Grant of Probate before they can access funds held in the bank or sell a property.
Only certain people can apply for probate and exactly who can apply depends on whether or not there is a will.
How is probate granted?
A Grant of Probate can also be called a Grant of Representation and is an official sealed document from the court confirming an individual has the authority to act on behalf of the estate.
The person responsible for dealing with the deceased’s estate is an executor or, in cases where an individual has not made a will, an administrator.
In most cases an executor would be a family member or friend of the deceased. It is also possible for a professional, such as a solicitor, to be appointed as executor. The executor or administrator is required to gather all the information needed to apply to the court to obtain a Grant of Representation. In more complex estates the executor may also need to liaise with HM Revenue and Customs before they can apply for the Grant of Probate.
There are various types of Grants of Representation depending on the circumstances of the estate:
- Grant of Probate – where there is a will and the executors named are applying
- Grant of Letters of Administration – where the deceased did not make a will and died intestate
- Grant of Probate with the will annexed – where the deceased executed a will, but the executors have died or are not willing to act.
When is a Grant of Representation required?
It is not always necessary to obtain a Grant of Representation when someone dies. The deceased may have left a small amount of money in a bank account or hold all assets jointly with a family member.
A Grant of Representation will usually be required if the deceased was the owner of a property, owned shares, or held in his/her sole name a bank account with a balance of more than £10,000.
Different organisations will have their own rules on whether probate is required. The banks, building societies and mortgage companies used by the person who died will be able to tell you if this is the case.
Do I need a solicitor to help me deal with an estate?
Appointing a professional is useful if you are dealing with a complex estate as they can advise you on ways to mitigate inheritance tax. Individuals may also wish to instruct a professional if they do not have the time to administer the estate.
A complex estate may be one that involves significant property and shares or where there are assets abroad, for example.
Once the Grant of Representation has be issued by the court, the executor or administrator is authorised to collect in the assets from banks, buildings societies and other relevant financial institutions. They can also sell or transfer any property or shares forming part of the estate.
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