What is Probate? by Richard Dale, Legal Executive

25th March 2023

I am writing on the subject of probate, by which we mean the process involved in confirming who can deal with succession to a deceased person’s estate.

Consideration of such matters, and getting ahead of them by planning the succession to your assets with a Will, and / or modifying how property is co-owned so as to limit the need of a Will, are things which many put off doing. 

However, they would likely benefit, as would those they want to support, by investing some time and thought into ensuring that their plans come to fruition; that they are not derailed, for example, by an inheritance tax (IHT) bill that went unconsidered or co-owners of property succeeding to its ownership when the deceased had intended to gift their interest to others.  
 
If someone has left a Will their executors, the persons they have appointed to see to the application of their Will, may need to obtain a Grant of Probate. This Grant amounts to confirmation of the validity of a Will and of the executor’s authority to deal with the estate, e.g. so that banks and purchasers know they can deal with them, and correspondingly the executors have responsibility for the estate, a duty to pay all debts/taxes and ultimately to distribute the estate.  

If there is no Will the deceased is said to have died intestate, and the intestacy rules then set out who can deal with the estate and benefit from it; normally the closest surviving family member(s). For instance, a spouse/civil partner would be the first person entitled to seek the Grant but under the rules they may not necessarily be the only beneficiary. 

If the deceased owned a house or flat in their sole name, or co-owned a property as a tenant-in-common (so that their share therein could pass under their Will or the intestacy rules) a Grant would be needed. 
In the alternative, if the deceased co-owned property as a joint tenant (ignore the use of tenant here which does not mean what you would usually attribute to it) then the ownership of the property would pass automatically to the surviving owners; the succession would not be controlled by the deceased’s Will or the intestacy rules.

It might also be necessary to obtain a Grant to deal with bank accounts and investments but what must be done will be specific to each organisation, as each of them applies their own rules; they might require sight of a Grant or they might accept use of what some call their ‘small estates procedure’. As a rule of thumb, the larger the holding with the bank the more likely it is that they will want to see the Grant.   
 
Obtaining a Grant requires an application to Court. Prior to making that application you need to confirm the assets held by the estate, both so that they can be secured and so that their value can be checked; primarily so that it can be seen if IHT accounts must be delivered and IHT paid to HM Revenue & Customs, if, that is, the available exemptions and reliefs from IHT are not sufficient to avoid a tax bill. Alternatively, the IHT regulations were altered from the beginning of 2022 with the result that some estates where no tax bill arises no longer need to deliver an IHT Return. 

Once the estate has been valued and the IHT position attended to, the Grant application follows. For simple estates involving a Will that application will be made online, for the rest it is still a paper process. As a result of ‘modernisation’ of the Courts the length of time it takes to get a Grant has been varying. At the time of writing, it is safer to assume it will take some 16 weeks from application to receipt of a Grant. It can be less and it can unfortunately be more. 

Richard Dale is a Legal Executive at Allan Jay Paine Solicitors in Palmers Green. The firm specialises in conveyancing and property matters, as well as private client work, with an emphasis on personal customer service. Richard advises on Wills, succession planning, probate and the administration of estates. Please send your questions to Richard by email: richard@allanjaypaine.co.uk