Why Would a Will Go to Probate?

In order to be implemented most Wills must go through a process known as probate (some Wills with a value of under £5,000 may be exempt).

Probate entails the executor gathering together all of the deceased’s assets, paying off any debts and then distributing them to the beneficiaries as set out in the Will.

For all but the simplest of Wills, the role of executor can be an onerous one and many people opt for the reassurance of appointing a legal expert as the executor of their Will.

By law an executor must follow a strict procedure as they probate a Will and keep detailed records of their activities. The stages of probate are as follows:

Registering the death

This is not a legal responsibility of the executor but it is advisable to do it as the death must be officially registered for probate to begin. The executor should obtain several copies of the death certificate as they will need one for each organisation that holds the deceased’s assets (banks and building societies, for example).

Obtaining a copy of the Will

This document will guide the executor through the process of distributing assets among the beneficiaries and so it is vital that they obtain a copy of it as soon as possible. In many cases it will be with the solicitor who drew up the Will – Wilson Browne offers a free storage facility for clients to provide peace of mind.

Grant of probate

Obtaining the grant is the first formal stage of the probate process and gives the executor the legal right to administer the estate. For smaller estates (with a value of up to around £5,000) a grant may not be required and so in these cases the executor should check with whoever is holding the deceased’s money (such as a bank or building society) if one is needed.

If a grant of probate is required, the executor will need two things:

• A copy of the death certificate
• An estimate of the estate’s value to establish if inheritance tax is payable. The executor should add together the value of all the deceased’s assets and subtract any liabilities (such as mortgages and loans). HMRC recommends that all items worth more than £500 (including property) should be professionally valued. All proceeds from the estate should be placed in a bespoke bank or building society account set up for that purpose – they must not be deposited in the executor’s personal account.

The grant of probate can be applied for online or by post.

It is advisable to make several copies of the grant when it is received as one will be required for each asset holder.

Paying inheritance tax and other debts

There is currently a tax-free allowance of £325,000 for inheritance tax, with a rate of 40 per cent usually payable on anything above this threshold.

The executor should also pay off any other debts of which they are aware and place a notice in The Gazette to give any other creditors the opportunity to come forward – this helps to protect the executor from being held personally liable for any unpaid debts in the future.

Distributing the estate

When all the estate’s liabilities have been settled the executor can carry out the process of distributing the assets in the way set out in the deceased’s Will. It is very important to keep detailed records – they should set out how much each beneficiary is entitled to receive and when the payment was made.

It is possible for an aggrieved party to launch a court challenge while probate is proceeding. This could be due to claims about the way the Will was originally drawn up or how the probate process has been handled.

Although relatively rare such a challenge can delay the probate process, causing additional stress to the deceased’s family at a time when they are grieving, and significantly reduce the value of the estate.

Many people opt for the reassurance of asking a solicitor to both draw up their Will and act as executor. This can reduce the risk of any delays to the probate process in the following ways:

Legal oversight of the Will

A solicitor will be able to ensure that a Will is drafted using the correct terminology and also verify that the individual was not coerced into making the Will – thereby lessening the prospects of a subsequent challenge.

Expertise during probate

In order to probate a Will an executor may have to handle complex issues including the sale of property and overseas assets. A relative or friend carrying out the role may struggle with such tasks, leading to delays and a legal challenge should they not follow the correct procedure.

A solicitor acting as executor will be able to use their expertise to ensure the process runs smoothly.

Wilson Browne’s solicitors have a wealth of experience in both drafting Wills and putting them through probate. We recognise that these are sensitive and emotive issues and will act at all times with the highest levels of tact and integrity.