The Probate Process: An Overview

What is Probate?

Probate is the legal process of handling a person’s Estate after they pass away. This involves confirming their assets, settling any outstanding debts, and distributing what remains to their beneficiaries. If the person left a Will, probate ensures their wishes are followed. If there is no Will, their Estate is distributed according to the rules of intestacy.

However, probate isn’t always necessary, depending on the type and value of the assets left behind. It may not be needed if the Deceased’s assets are jointly owned and passed automatically to the surviving owner or if the Estate is small and simple.

The probate process can vary in complexity, depending on the size of the Estate, whether there is a valid Will, and whether any disputes arise. If the Deceased had a Will, the appointed Executor typically applies for a grant of probate, which is the legal document confirming their authority to deal with the Estate. Without a Will, an Administrator is appointed to handle the Estate through a process called Letters of Administration.

Who Can Apply for Probate?

If there is a Will, then the person named the Executor or Executrix will apply for probate. An Executor/Executrix is a person chosen by the Deceased to carry out and oversee the wishes stated in the Will.  These are often family members, friends, or trusted professionals such as Solicitors. They have the legal responsibility to manage the Deceased’s Estate administration, pay off any debts, and distribute the remaining assets to the beneficiaries.

If there is no Will, the Deceased’s personal representatives, usually their next of kin, have the right to apply for a Grant of Letters of Administration. The order of priority typically follows:

• Spouse or civil partner
• Children
• Grandchildren
• Parents
• Siblings
• Half-siblings
• Grandparents

There are exceptions to be noted regarding who cannot apply for a Grant of Representation, whether for a Grant of Probate or Letters of Administration. For example, minors and individuals lacking mental capacity cannot apply regardless of their familial status.

The Probate Process

Step 1: Confirm If Probate Is Needed

Not all Estates require probate. You would only need to apply for probate if the person who passed away owned property or had significant financial assets. If the Deceased had only joint assets (such as a house owned jointly with a spouse), these usually pass automatically to the surviving co-owner without probate.

Step 2: Identify the Executor or Administrator

When a person dies leaving a Will, the Executor designated in that Will apply for a legal document called a “Grant of Probate.” If the Deceased did not leave a Will, the closest living relative can apply for “Letters of Administration” and, upon receiving them, is referred to as the Administrator of the Estate.

Step 3: Value the Estate and Report to HMRC

Before applying for probate, the Estate’s value must be determined, including property, savings, investments, personal possessions, and any debts.

If the Estate is worth more than the Inheritance Tax (IHT) threshold (£325,000 as of 2024), an Inheritance Tax return must be submitted to HM Revenue & Customs (HMRC). If tax is due, some or all of it may need to be paid before probate is granted.

Step 4: Apply for Probate or Letters of Administration

Once the Estate is valued and Inheritance Tax (if applicable) is paid, the Executor or Administrator can apply for a Grant of Representation. Applications are made online or via paper forms through the Probate Registry.

Step 5: Gather Assets and Settle Debts

A Grant of Representation gives the Executor or Administrator the legal authority to handle the Deceased’s Estate. This involves collecting assets like bank accounts, property, and investments, paying off any debts (including loans, funeral costs, and taxes) and dealing with any legal claims. Beneficiaries can only receive their share once all debts have been settled.

Step 6: Distribute the Estate to Beneficiaries

After all debts and taxes are settled, the remaining assets are distributed either according to the instructions outlined in the Deceased’s Will or, if no Will exists, according to the legal rules of intestacy.

Step 7: Finalise the Estate and Keep Records

The Executor or Administrator is responsible for maintaining detailed records of all Estate transactions and may be required to provide a formal accounting to both the beneficiaries and the court.

What is Contentious Probate?

Contentious probate happens when there are disputes during the probate process, such as disagreements over a Will, how the Estate is distributed, or the actions of the Executor or Administrator. These disputes and claims against the Estate can be complicated and may need legal help to sort out.

One of the most common reasons for contentious probate is a challenge to the validity of a Will. This can happen if someone believes the Deceased lacked mental capacity when making the Will, was pressured into signing it, or if there are concerns about fraud or improper execution. It is therefore imperative that at the time of creating a Will, you or your loved ones take the time to instruct a Solicitor, to try and circumvent any challenges to the Will before they arise.

Disputes may also arise when a family member or dependant believes they have not been provided for under the Inheritance (Provision for Family and Dependants) Act 1975.

It is recommended to seek the specialist help of a Wills and probate solicitor if disputes surrounding the Will or probate process arise. Our team have experience in contentious probate disputes and can help you explore your rights and options, including alternative dispute resolution (ADR) methods such as negotiation and mediation. If an agreement cannot be reached, we can represent you in court proceedings.

How a Solicitor Can Help with Probate

A probate solicitor can help simplify the legal process of administering an Estate, particularly when dealing with complex assets, inheritance tax, or disputes.

They can provide vital legal guidance, assist with the probate application process and ensure the Estate is administered correctly, including valuing assets, settling debts, providing guidance on paying inheritance tax or capital gains tax, and distributing assets to beneficiaries in accordance with the Will or intestacy laws.

Why choose AFG Law?

The probate process can be extremely challenging when you have lost a loved one. Our team of Will and probate solicitors at AFG Law offer comprehensive support throughout the probate process, making sure all legal and administrative duties are handled properly and efficiently.

If you would like to speak to a member of our team regarding the probate process or any of our legal services, please do not hesitate to get in touch with us today. We can be contacted at PrivateClientDept@afglaw.co.uk or phone us on 01204 377600.

AFG Law have multiple offices with specialist Probate solicitors in Manchester, including Stockport, Bolton and Bury. We can also assist clients with their Will and Probate needs remotely.