A basic guide to probate

What is probate?

If a person dies then someone must deal with their estate collecting the money, paying their debts and distributing the assets. If a person dies with a will then the person responsible for dealing with the probate is known as an executor whereas if a person dies intestate (without a will) then the person who deals with the deceased estate is known as the administrator.

Probate simply means the documents which are given to the executor or administrator that authorises them to do this.

Grant of probate

The documents that are issued entitling a person to act to close the deceased estate are know as the Grant Probate and an executor or administrator must apply to the Probate Registry for them

Before probate can be granted the Probate Registry all assets and debts must be calculated and Inheritance Tax calculated if any must be paid. If inheritance tax is due on the estate then it must be paid within 6 months, using a solicitor will usually ensure this timeline is met.

Sometimes a grant of probate is not needed cases vary from situation to situation and the simplest examples are:-

  • where the deceased's estate is below £10,000, and doesn't contain any land, property or shares
  • where the whole of the estate is held in joint names and passes automatically to the surviving joint owner.

Distributing the estate with a will?

Where there is a will the estate can be distributed as per the instructions of the deceased. However it will be the responsibility of the executor or administrator to track down any beneficiaries who cannot be traced which can be a lengthy process.

But how will the estate be distributed if the deceased died without a will?

  1. If the deceased is married or in a civil partnership?

    If the deceased is married or has a civil partnership then the majority will be given to them however if the estate is over a certain value then the estate will be divided up between the following:

    • children (or if none, grandchildren) will get an equal share
    • if there are no children or grandchildren, surviving parents will get a share
    • if there are no children, grandchildren or surviving parents, any brothers and sisters will get a share (or their children if they died while the deceased was still alive)
    • if the deceased has none of the above, the husband, wife or registered civil partner will get everything

  2. If the deceased has no spouse or civil partner or they are deceased?

    The estate will be distributed as follows:

    • to surviving children in equal shares (or to their children if they died while the deceased was still alive)
    • if there are no children, to parents (equally, if both alive)
    • if there are no surviving parents, to brothers and sisters or to their children if they died while the deceased was still alive
    • if none of the above then to grandparents (equally if more than one)
    • if there are no grandparents to aunts and uncles (or their children if they died while the deceased was still alive)
    • to the Crown if there are none of the above (through the Crown Solicitor's Office

What may appear above as a rather complicated process can be made much simpler with the aid of solicitors with experience in dealing with estates of the deceased aiding executors and family members at what can often be a difficult time. At The Legal Practice Solicitors we have vast experience of dealing with probate not only simple closing of the deceased's estate but also where there is contested probate.