25 July 2019

What is Probate, and do I need it?

If you are appointed as an Executor in a Will, you may have to obtain a legal document, called a Probate, which gives you the authority to share out the estate of the person who has died according to the instructions in the will.

What is Probate?

In order to collect in the assets of the estate, a Grant of Probate (or Letters of Administration if there is no Will) may be required. This is a document issued by the court which confirms who the Executors (or Administrators) of the estate are. The Grant of Probate is evidence to the asset organisations that the person or persons named on the Grant have the legal authority to deal with the assets of the estate. Once the Grant is obtained the Executors or Administrators can, for example, close bank accounts, sell or transfer any property and cash in any shares or investment portfolios.

Do I need a Grant?

In some cases, a Grant is not required and a death certificate will suffice to take the deceased’s name off the asset, for example, where assets are held in a joint bank account or where property is held as joint tenants.

Another example where a Grant may not be required is if the estate is quite small. Some organisations may not require a Grant and may simply require completion of a declaration or bereavement form. However, each bank or other individual organisation has it’s own set of rules and, in some circumstances, they may insist that a Grant is obtained before releasing the asset.

Regardless of the size of the estate, as a general rule of thumb, if there is a property, shares or investments in the deceased’s sole name, a Grant is usually required.

Do I need a solicitor to help me with Probate?

Some executors act without a solicitor. However, if the estate is complicated or if there is Inheritance tax to pay, it is best to get legal advice. You should always get legal advice if, for example:

  • the terms of a will are not clear
  • part of the estate is to pass to children under the age of 18
  • the person who died has left money or property in a trust
  • the person who died owned land or property abroad
  • the person who died owned a business
  • anyone is likely to dispute the will

The legal fees can be paid for from the estate. If there are any problems with the way that executors or administrators deal with the estate, for example, if there is unreasonable delay or if the executors or administrators misuse their legal powers, you will need legal advice.

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