What is Probate?

A Grant of Probate is the legal authority to act for the Estate of the Deceased and administer and/or distribute it in accordance with a Will or the Rules of Intestacy.

I can’t afford the funeral, can I get financial help?

You may be able to apply for a Funeral Payment from the Department of Work and Pensions.

To apply for this benefit call the Bereavement Service Helpline on 0845 606 0265 (08.00 to 18.00 Mon – Fri) or complete a Funeral Payment Claim Form (SF200) and send it to your local Jobcentre Plus.

The benefit is means-tested and it may be necessary to later make a repayment from the proceeds of the Estate.

Funds held by the Deceased in Bank or Building Society accounts can be used to settle the funeral invoice directly.

I cannot find a Will, what should I do?

If you are certain that no Will was ever made, you will need to swear an Oath in front of a Notary or Solicitor; be absolutely sure that no Will exists before doing this. If the Will is subsequently found, the Estate must then be redistributed in accordance with the Will. The Executor may be held personally liable for the error.

If you think that there may be a Will but you are unable to find it, you will need to prove, using a specialist service, that you have searched for it. If the Will is still not found, it will be presumed to have been destroyed and the Estate will be dealt with in accordance with the Rules of Intestacy.

Can I sell the Deceased’s house?

Property owned in the name of the Deceased can be marketed, but not sold, before the Grant of Probate has been received.

The Grant of Probate will not be issued until any due Inheritance Tax has been paid.

The Deceased appointed a Solicitor as an Executor, does the Solicitor have to arrange the Probate?

If a Solicitor was appointed by the Deceased; that Solicitor may expect to administer the Estate. If the Co-Executors and Beneficiaries agree that the Estate should be administered by an alternative firm or by the Co-Executors themselves, then the Solicitor-Executor may agree to renounce his/her appointment, but is not obliged to do so.

Can I transfer the ownership of the property without selling it?

The Executors, or Personal Representatives, of the Estate are able to transfer the ownership of the Deceased’s property in accordance with the Will or with the Rules of Intestacy. The transfer can be arranged with the Land Registry once a Grant of Probate has been obtained.

Where do I get the Probate forms if I want to do it myself?

Probate forms are available from HMRC or The Probate Registry, or they can be downloaded free of charge from easyProbate’s website.

What is an Attorney?

An Attorney is a person who has authority to act for another person under a Power of Attorney. A General Power of Attorney will lapse if the person who gave it loses mental capacity; a Lasting Power of Attorney will not.

Can I remove or change a named Executor?

Whilst the Testator is alive they may change their Will with a Codicil or write a new Will naming an alternative Executor.

After the death of the Testator, an Executor can only be removed if they choose to opt out, or by court intervention.

This applies whether the Executor is an individual, a Solicitor or a Bank.

Is Inheritance Tax payable between husband and wife?

No.

The Deceased had off-shore accounts. Can those be dealt with in the same way?

A Grant of Probate issued by an English or Welsh Probate Registry is valid in England and Wales but not in Scotland.

For other countries, check with the institution that holds the account. You may need to apply for a Grant of Probate in each country where assets are held.

My spouse’s Will was made before the law was changed to reduce Inheritance Tax. Can the Will be changed now that a spouse can inherit tax free?

If your spouse is still alive then it may be advisable for them to change their Will.

If your spouse has died, the Trustees may agree to vary the Will.

There is a Trust in the Will. Will it complicate things?

The existence of a Trust in a Will may cause complications and may require advice. However, this is not necessarily the case and the procedure for dealing with a Trust may be simple.

Will I need to go to court?

The Probate Registry is a division of the High Court. If you process the Probate application yourself you will have to attend a Probate Registry or a local Solicitor’s office to swear an Oath that what you have completed in the forms is the truth.

Do we have to accept the Executor named in the Will?

Yes, unless he/she chooses not to undertake the responsibility. If they do choose to act, this cannot be overridden without court intervention.

As the Executor, can I apply for Probate myself?

Yes, easyProbate’s downloadable forms and guidance will assist you in this.

Executors are legally responsible for the correct distribution of the Estate and the payment of Inheritance Tax.

How long will it take to get Probate?

This will vary depending on the complexity of the Estate. If it is simple and you are highly organised it is possible to get a Grant of Probate within about 6 weeks from your submission of the paperwork.

Can the Will be contested?

Anyone can contest a Will but they need valid grounds to do so.

Successful claims are usually made for one of the following reasons:

– the claimant was dependent upon the Deceased and the Will did not make adequate provision for their future care.

– the Will was invalid because the Testator lacked the mental capacity to make a Will or because the Will was forged or made under duress.

If the Will is proved to be invalid, the court may demand that an earlier Will be used or that the Rules of Intestacy should apply.

Do I need to pay Inheritance Tax before I can sell the property?

Yes, Inheritance Tax must be paid before a Grant of Probate can be issued. A property cannot be sold before the Grant of Probate has been obtained. Inheritance Tax rules are complicated. Guidance can be found on the HMRC website. Conditions apply about when Inheritance Tax needs to be paid and the methods for paying it.

Can I appoint someone else as Executor?

If you are named as an Executor in a Will and are unable to undertake the required responsibilities, you can appoint an Attorney to act on your behalf.

A General Power of Attorney will lapse if you lose the mental capacity to make decisions.

The elderly or those in poor health are advised to appoint a professional to act on their behalf.

I’m the Executor. Who would know if I just took all the money?

Once a Grant of Probate has been obtained, a Will becomes a public document and can be viewed by anyone. A Beneficiary may therefore become aware that they have not received a legacy that was due. Charities use a specialist service and will pursue any legacy due to them that they have not received. Criminal and civil proceedings may result from wrongful distribution of an Estate.

The Estate is insolvent. What does that mean?

An Insolvent Estate is one which contains less by way of value in assets than it does by way of liabilities, i.e. the Deceased owed more money than he/she had in property, bank accounts, etc.

When an Estate is insolvent, the debts must be paid in a strict specified order. An Executor who does not follow this order may be held personally responsible for paying the debts themselves.

I am the Executor can my son/daughter/friend do the work?

Yes, but you will still be responsible in law for the work that is done.