Essential Guide to Probate

When a person dies, their estate, which includes property, money, and possessions, usually goes through a legal process called probate.

Probate gives someone the authority to deal with the deceased’s estate, according to the law and any will that exists.

This process is essential for confirming the executor’s rights and distributing assets properly.

In this article, you’ll learn what probate is and what happens to a power of attorney when someone dies. You also get a step-by-step, practical example showing how probate typically works in England and Wales.

What Is Probate?

Probate is the legal process for managing and distributing a person’s estate after they die. The estate can include property, money, possessions, and any other assets.

If there’s a will, probate confirms that the will is valid and gives the executor the authority to carry out the instructions left in the document.

When no valid will exists, probate may still be needed, and the court appoints an administrator to deal with the estate.

Some assets may not require probate, such as joint bank accounts or jointly owned property, as these often pass automatically to the surviving owner.

The key steps involved in probate are:

• Verifying the existence and validity of a will.
• Valuing the deceased’s assets and debts.
• Paying any outstanding debts and taxes.
• Distributing assets to beneficiaries.

Small estates or those with limited assets may not need probate.

The thresholds can vary, and financial institutions may have their own requirements.

Do You Need to Apply for Probate?

Probate isn’t always required after someone dies. Whether it’s needed depends largely on the type and value of assets in the estate.

A grant of probate is usually necessary if the deceased owned property in their sole name or significant assets held solely in their name, such as bank accounts over a certain threshold.

If everything was owned jointly, like a house with a surviving spouse, probate may not be needed, as these assets pass automatically to the co-owner.

You may also be wondering about probate and power of attorney, or more specifically, power of attorney after death. For example, do you need probate if you have power of attorney or does power of attorney end at death? 

The simple answer is that if you have power of attorney and the person dies, this authority ends immediately upon death. This means that the existence of a power of attorney doesn’t remove the need for probate.

As power of attorney can’t be used after death, only the executor, or administrator, if there’s no will, can manage the deceased’s assets through probate.

Below is a summary of situations where probate usually will or won’t be needed.

Reviewing each asset and account type is important, as requirements vary between financial institutions.

Executors should check directly with each organisation to confirm if probate is required.

Who Can Apply for Probate?

When someone dies, the right to apply for probate generally depends on whether there’s a valid will.

If There Is a Will

The executors named in the will are responsible for applying for probate.

These executors have the legal authority to deal with the deceased person's estate.

If There Is no Will

In cases where there’s no will, the situation is different.

The closest living relatives can apply for what is called 'letters of administration.' This usually means a spouse, child, or parent will take on the role.

It's important to note that having power of attorney during the deceased's lifetime does not grant any authority after death. Once the person dies, the power of attorney becomes invalid.

Only those entitled by law can apply for probate or letters of administration.

The following table outlines who can typically apply:

Only one person needs to make the application, but up to four people can apply jointly. Beneficiaries may also apply if they meet the legal requirements.

If there are multiple eligible applicants, they need to agree on who will apply. Disagreements may require legal intervention.

How to Apply for Probate?

The probate process confirms a person's legal authority to deal with a deceased person's assets, also known as their estate.

Applying for probate involves several steps.

Step 1: Confirm Eligibility

Not everyone can apply for probate. Only the executor named in the will, or an administrator if there’s no will, has the right to apply.

If someone had power of attorney while the person was alive, that authority ends upon death and doesn’t give them automatic probate rights.

Step 2: Gather Necessary Documents

Applicants will need key documents such as the original will (if available), the death certificate, and documents proving their relationship to the deceased.

This can include a birth certificate or marriage certificate.

Step 3: Value the Estate

It’s important to obtain an accurate valuation of the estate. This includes property, money, shares, and any debts.

Accurate figures are needed for inheritance tax calculations.

Step 4: Complete the Application

Probate can be applied for online or by post through GOV.UK.

Applicants need to carefully complete the forms, as mistakes can delay the process.

Step 5: Pay Any Inheritance Tax

Any due inheritance tax must be paid, at least in part, before probate is granted.

HMRC guidance should be followed closely.

Below is a table showing the key points to remember when applying for probate.

Can an Application for Probate Be Challenged?

An application for probate can be challenged in certain circumstances.

Any person with a legal interest in the estate, such as a beneficiary, a family member, or someone owed money by the deceased, may raise a challenge.

Common grounds for challenging a probate application include:

• Disputes about the validity of the will
• Concerns over who is entitled to apply for probate
• Claims of undue influence or lack of capacity when the will was made

A caveat can be entered with the Probate Registry to temporarily stop a grant of probate from being issued. This gives time for further investigation or legal steps if there are ongoing disputes.

Does power of attorney override the executor? No, power of attorney doesn’t invalidate the role of an executor. Once the person has died, any power of attorney ends, and the executor named in the will has the legal right to administer the estate. A person with power of attorney before death can’t control the probate process after death.

It’s important for anyone considering a challenge to understand the specific legal basis for their claim.

Legal advice is often recommended before taking steps such as entering a caveat or contesting a will.

How to Deal With an Estate?

Dealing with an estate usually starts by determining if there’s a will.

If there’s a will, those named as executors have the authority to manage the estate. If there’s no will, the closest living relative often applies to handle the process.

The key steps for managing an estate are:

Step 1: Register the Death

The death must be officially registered with the local authorities. This is a legal requirement before proceeding.

Step 2: Locate the Will and Documents

Find the will, if one exists, and gather key financial documents such as bank statements, insurance policies, and information on property and debts.

Step 3: Apply for Probate or Letters of Administration

Executors apply for probate if there’s a will. If not, an administrator (usually a close relative) applies for letters of administration.

This legal authority is needed to deal with assets like bank accounts or property.

Step 4: Value the Estate

Determine the total value of all assets and debts, including property, savings, investments, and liabilities.

This will also clarify if inheritance tax needs to be considered.

Step 5: Settle Debts and Expenses

Outstanding debts and expenses such as utility bills, loans, or funeral costs must be paid from the estate before anything is distributed to beneficiaries.

Step 6: Distribute the Estate

Once all debts are settled and legal authority is confirmed, the remaining assets are distributed according to the will or, if no will exists, under the rules of intestacy.

Key Takeaways

Probate is the legal process of managing and distributing the estate of someone who has died, ensuring that assets are properly handled according to the law and the deceased's will. 

It involves verifying the will, valuing assets, paying any debts and taxes, and then distributing the remaining estate to the beneficiaries. 

Probate is typically necessary if the deceased owned significant assets or property solely in their name, but it may not be required for small estates or jointly owned assets. 

The process can be complex and time-consuming, often taking several months or more, so professional advice is recommended, especially for larger or more complicated estates.