When do you need probate?
Along with “When is probate required?” and “Do I need probate?” this is one of the questions that executors ask most often when faced with the legal process of managing a deceased person's estate for the first time. To answer all of these, you need to know whether the person who died owned any property, land or shares. If they didn’t, or if the estate has passed to a surviving spouse or civil partner because the assets were held in joint names, you probably don’t need to apply for probate. In other cases, getting probate gives you the right to administer the deceased’s property, possessions and finances.
How does probate work?
The probate process involves the following steps:
- Check the validity of the Will and verify the beneficiaries’ entitlement to the deceased’s estate.
- Determine the value of the estate by identifying and valuing all the deceased’s assets, as well as all outstanding debts.
- To administer the estate, you must apply for a Grant of Representation from the Probate Registry. Applying for probate will give you legal authority to deal with their financial affairs. This involves filling in a probate application form which can be obtained online from the Government's gov.uk portal which is an excellent source of probate information and probate advice.
- As the deceased’s executor or representative you must swear an oath that the information you supply is true to the best of your knowledge. This can be done at a local probate office or at the office of a commissioner for oaths (many solicitors offer this service).
- Pay any Inheritance Tax due to HMRC.
- Settle any outstanding liabilities by selling some or all of the deceased’s assets if necessary. This is because, in UK law, the rights of creditors outweigh those of beneficiaries. Bear in mind that tax owed by the deceased is considered a debt on the estate. In situations where debts exceed the value of the estate, the estate becomes insolvent.
- Record all payments to and from the estate, showing the remaining balance to be distributed amongst the beneficiaries.
- Distribute the remaining assets and funds according to the terms of the will.
You can apply for probate yourself, or engage a solicitor or another person licensed to provide probate services to supply you with probate help.
How long does probate take?
The probate procedure takes six to nine months to complete on average. The time it takes can vary depending on the size of the estate and how in order their affairs have been left. However, there are occasions when the applying for probate process can take years to complete, for example, when the Will is contested.
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Ways to reduce inheritance tax
Inheritance bills can be reduced through various reliefs, reductions and exemptions. For example:
- No inheritance tax is payable on assets under £325,000.
- If the deceased left their home to their children (including adopted, foster or stepchildren) or grandchildren in their will then the threshold for paying inheritance tax increases to £425,000.
- Assets and property left to a partner are exempt from inheritance tax.
- Gifts made to charity in a will are exempt from inheritance tax.
- Gifts to provide reasonable maintenance for a child under 18 (or someone dependent on the deceased) are exempt from inheritance tax.
- Up to £3,000 per year can be gifted, tax free.
- Gifts of up to £250 each can be given tax free to any individuals.
- Parents can give £5,000 as a wedding gift, and grandparents can give £2,500 without tax liability.
- Gifts are not counted towards the value of the estate if they were given more than seven years before the deceased died.
- If the deceased owned shares in a private company or agricultural land, up to 100% business property relief can apply.
Contested wills and challenged estates
Any dispute is obviously distressing to the family of the deceased. Most Wills are contested if relatives believe they have been unfairly treated, or because insufficient provision has been made for a dependant.
Common reasons for dispute include:
- The will was not property executed.
- The deceased was of insufficient mental capacity to draft their will.
- The will is invalid as it was made under duress.
- There is a dispute involving property.
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