Probate: What to Expect
Probate is the process by which a deceased person’s affairs are wound up and their assets passed on to their beneficiaries. Clients often arrive at our offices grieving a recent loss and uncertain of what to expect from the probate process. One of the most rewarding aspects of Private Client practice is helping to organise and order a deceased person’s affairs, enabling their loved ones to move forward without the worry that something important may have been overlooked or dealt with incorrectly.
Many clients in the initial stages of the probate process have two questions: “What happens next?”, and “How long will it take? This brief outline will help you to know what you should expect, whether you have been appointed as the executor under a Will or you are a beneficiary of a recently deceased person.
- Power of Attorney ends
Any person appointed to act under a power of attorney for the deceased must now stop. The power dies with the donor. It is now the personal representative – that is the executor (if there is a Will) or the main beneficiary (if there is no Will) – who has legal standing to manage the assets of the deceased.
- Assets will be frozen
All banks etc must be informed of the death (it is a criminal offence to take money from a bank account after someone has died). Joint accounts may continue to be operated by the surviving joint owner, however.
There is often concern about how the immediate costs of bereavement will be met if the account is frozen. Most banks will release funds to pay for the funeral. On production of the funeral director’s invoice, the bank will settle the cost directly with the funeral director, provided of course there is enough in the account. Other expenses will arise, and will have to be met by the family, but can be repaid as soon as the assets are unfrozen.
- The estate must be valued
The personal representative arranges for the estate to be valued as at the date of death. Banks and fund managers can provide date of death valuations. A professional valuer can provide an open market valuation for the house and its contents. Where an estate is taxable it is essential that everything is professionally valued and even in non-taxable estates a sensible valuation should be sought to ensure the paperwork is completed accurately. Date of death valuations may form the basis of future capital gains tax calculations and it is often easier to obtain a date of death valuation at the time than many years ahead.
The personal representative must also discover the extent of any liabilities. The balance at the date of death of outstanding mortgages, credit card bills, utilities bills etc should all be obtained. It is prudent to advertise for creditors, in case there are any debts of which the personal representative is unaware. Without such an advertisement, if the estate is distributed and a creditor subsequently comes forward, the personal representative may be personally liable for the debt.
Depending on how ordered the affairs of the deceased person were, this process may be time-consuming. If you are involved in a probate, you can help to cut down the time it takes by providing comprehensive and timely information when requested by your solicitor. Probate practitioners are used to sifting out the important information from the jumble of paperwork that is often recovered from the home of a recently deceased person, and it can save time and money in the long-run if you entrust your legal advisor with the documentation from the outset.
- Protect the assets
The house and its contents must be kept insured, but the insurers will need to be informed if it is now standing empty. Death notices in the papers can be a source of information to potential burglars, and so it is particularly important to secure the property. If possible, regularly visit it and try to maintain a sense of occupancy, to deter any would-be thieves. Anything valuable can be removed to a safer location provided the personal representative does not lose control of its whereabouts.
- A Grant of Probate may be needed
In order to “unfreeze” the assets, it may be necessary to obtain a Grant of Probate from the Court. Exceptions to this include:
- Jointly held assets which automatically pass to the surviving joint owner;
- Accounts with low value – at the discretion of the bank, accounts with small balances (typically under £50,000 though it varies) may be closed and funds released to the personal representative; and
- Personal possessions, which pass to the executor on death, and can be distributed in accordance with the Will prior to a Grant being obtained provided there is no question of the Will being disputed.
- Inheritance Tax
Before applying for Probate, the personal representative must ascertain whether inheritance tax is payable. At least some of Inheritance Tax must be paid by the end of the sixth month after the date of death though there are different rules relating to tax on property, and interest is charged for late payment. Again, banks will release funds for this purpose and pay tax direct to HMRC whilst the bank account is still frozen.
Even if no tax is payable, some estates are still required to submit an inheritance tax return, primarily if the estate is over £3,000,000 or if the personal representatives wish to claim certain reliefs and exemptions.
HMRC take 20 working days to process the inheritance tax return, and you may not apply for the Grant until this time has passed.
- Obtaining the Grant
Once the estate’s value is known and Inheritance Tax accounted for, you may apply for the Grant of Probate (or Letters of Administration if there is no Will). This proves the status of the personal representative, so that they will then be permitted to deal with the assets.
At the time of writing, the Court’s timescale for issuing the Grant is 16 weeks.
- Administering the Estate
Taking into account the time it may take to fully ascertain the value of the estate, HMRC’s 20 day processing window and the Court’s 16 week timescale for the Grant, it is not usual for the Grant of Probate to be received around 9 months after the date of death. In complex estates, or in estates where the deceased had not kept clear records of their assets, it can take longer to reach the stage of being ready to administer the assets.
Once Probate is obtained the accounts can be unfrozen and liabilities paid.
Any specific gifts made in the Will, if not already distributed can now be given to the named beneficiaries, as can any cash legacies.
The tax affairs of the deceased will need to be closed off, and any tax that the estate owes on income and gains arising during the administration must be accounted for.
At this point, the remainder of the estate can be distributed to the residuary beneficiaries.
Expect the process, from start to finish, to take at least a year and if matters are complex, involving overseas assets for example, even longer.
Taylor Walton has experienced probate practitioners who can guide you through the probate process, and undertake much of the work involved, to ensure an orderly and comprehensive approach to one of life’s less enjoyable tasks. To get in contact with our team, fill in a contact form online.
Disclaimer: General Information Provided Only
Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.
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