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What is probate?

In England and Wales, probate refers to the legal process of administering the estate of a deceased person. This process involves proving and registering the validity of the deceased’s will (if there is one) with a probate court. Outlined below is a detailed breakdown of what probate involves:

Application for Probate:

  • If the deceased left a will, the executor(s) named in the will apply for a “Grant of Probate.”
  • If there is no will, the next of kin can apply for “Letters of Administration,” and they are then called administrators.

Grant of Probate/Letters of Administration:

  • These documents give the executor or administrator the legal authority to deal with the deceased’s estate. This includes collecting assets, paying debts and taxes, and distributing the remainder to beneficiaries.

Gathering assets:

  • The executor or administrator identifies and gathers all the deceased’s assets. These may include money, property, investments, and personal belongings.

Paying debts and taxes:

  • The executor or administrator is responsible for paying any debts and taxes owed by the estate. These may include Inheritance Tax, if applicable.

Distributing the estate:

  • Once all debts and taxes have been paid, the remaining assets are distributed according to the will or, if there is no will, according to the rules of intestacy.

Accounting:

  • The executor or administrator must keep accurate records of all transactions and may need to provide an account to the beneficiaries and the court.

When probate is needed?

Probate is generally needed if the deceased owned property or significant assets in their sole name.

It may not be necessary for smaller estates or if assets were jointly owned and passed directly to the surviving joint owner.

How much does probate cost?

There are fees associated with applying for probate, which vary depending on the size of the estate. Some of the costs involved in probate may include:

Court fees:

Application for Grant of Probate:

  • Estates over £5,000: As of 2024, the standard fee for applying for a Grant of Probate is £273.
  • Estates under £5,000: No fee is payable.

Solicitor’s fees:

Solicitor’s fees can vary based on the complexity of the estate and the solicitor’s fee structure. There are typically three main ways solicitors may charge for probate services:

  • Fixed Fee: Some solicitors offer a fixed fee for handling probate. This can range from £1,000 to £3,000 or more, depending on the complexity of the estate.
  • Hourly Rate: Solicitors may charge an hourly rate, typically between £150 and £300 per hour. The total cost will depend on the number of hours required to complete the probate process.
  • Percentage of the Estate: Some solicitors charge a percentage of the estate’s value, often between 1% and 5%. For example, for an estate worth £300,000, this could range from £3,000 to £15,000.

Additional Costs:

  • Valuation Fees: There may be fees for valuing assets such as property, shares, or valuable items. Property valuations can cost around £250 to £500, while other valuations might cost less.
  • Inheritance Tax: If the estate is liable for Inheritance Tax, this must be paid. The current rate is 40% on the value of the estate above the nil-rate band (usually £325,000, but this can be higher if unused allowance from a spouse is claimed).
  • Professional Services: If other professional services are needed, such as accountancy or specialist advice for complex estates, these costs can add up.

Contingency for Disputes:

If the probate becomes contentious, legal fees can escalate significantly due to the additional time and complexity involved in resolving disputes.

Timeframe

The probate process can take several months to over a year, depending on the complexity of the estate.

What is contentious probate?

Contentious probate refers to disputes that arise during the administration of a deceased person’s estate. These disputes can involve a variety of issues, such as the validity of the will, the interpretation of its terms, the conduct of the executors, or the rights of the beneficiaries. Contentious probate cases are typically resolved through legal proceedings in court. Some common types of contentious probate disputes include:

Validity of the Will:

  • Lack of Testamentary Capacity: A challenge may be made if there is a question about whether the deceased had the mental capacity to make a valid will.
  • Undue Influence: A will may be contested if there are suspicions that the deceased was coerced or unduly influenced by someone to make or change the will.
  • Improper Execution: Disputes can arise if the will was not properly executed according to legal requirements (e.g., not signed or witnessed correctly).
  • Forgery or Fraud: If there are allegations that the will is a forgery or was made under fraudulent circumstances.

Interpretation of the Will:

  • Ambiguities in the language of the will can lead to disputes over how the terms should be interpreted and applied.

Claims Against the Estate:

  • Inheritance (Provision for Family and Dependants) Act 1975: Claims can be made by certain family members or dependants who believe they were not reasonably provided for in the will.
  • Disputed Beneficiaries: Disagreements over who is entitled to inherit under the will or intestacy laws.

Executor/Administrator Disputes:

  • Challenges to the conduct of executors or administrators, including accusations of mismanagement, breach of duty, or failure to act in the best interests of the estate and beneficiaries.
  • Disputes over the appointment or removal of executors or administrators.

Rectification and Construction:

  • Applications to the court to rectify a will that contains clerical errors or does not reflect the deceased’s true intentions.
  • Requests for the court to interpret unclear or conflicting terms within the will.

 

When are probate solicitors required?

Probate solicitors provide invaluable assistance with probate matters. They help to navigate the complex legal and administrative processes involved in the administration of a deceased person’s estate. Outlined below are several ways in which a solicitor can help:

Legal advice and guidance:

A solicitor can provide an initial consultation to explain the probate process. They can help to identify the steps that need to be taken, and assess the complexity of the estate.

They can also explain the legal requirements and obligations of executors and administrators, helping to ensure compliance with the law.

Probate applications:

Probate solicitors can help prepare the necessary legal documents for applying for a Grant of Probate or Letters of Administration.

They can file the application with the Probate Registry on behalf of the executor or administrator.

Identifying and valuing assets:

A solicitor can assist in identifying all the assets and liabilities of the deceased. These may include bank accounts, property, investments, and personal belongings.

They can arrange for the valuation of assets, which is necessary for probate and inheritance tax purposes.

Inheritance tax:

Probate solicitors can calculate any inheritance tax that may be due and advise on ways to mitigate tax liabilities.

They can prepare and submit the required inheritance tax returns to HM Revenue and Customs (HMRC).

Paying debts and distributing the estate:

A solicitor can help ensure that all debts, bills, and taxes are paid before the estate is distributed. They can assist in distributing the remaining assets to the beneficiaries in accordance with the will or intestacy rules.

Handling disputes:

If there are disputes regarding the will, beneficiaries, or executors, a solicitor can provide representation and help resolve the issues through negotiation, mediation, or court proceedings.

Executor and administrator support:

A solicitor can advise executors on their duties and responsibilities, helping to avoid any potential legal pitfalls.

For complex estates involving trusts, foreign assets, or business interests, a solicitor can provide specialised advice and support.

Drafting and reviewing wills:

Probate solicitors can help in drafting a will to ensure it is legally valid and clearly expresses the testator’s wishes around probate and estate administration.

They can review existing wills to ensure they are up-to-date and reflect current intentions and circumstances.

Record keeping and reporting:

Solicitors help in maintaining accurate records of all transactions, which can be crucial for transparency and accountability.

They can prepare final estate accounts to provide to the beneficiaries and the court, if required.

Peace of mind:

Due to the complexity of trusts and estates, practitioners, such as solicitors can be an invaluable asset. The process can be time consuming and stressful. Engaging a solicitor provides peace of mind, knowing that the probate process is being handled professionally and efficiently, reducing the stress and burden on the bereaved family.

How can Expert Family Law assist?

Expert Family Law have a panel of probate solicitors and law firms who can provide assistance on your case.

Probate solicitors offer comprehensive support throughout the probate process, ensuring that all legal and administrative tasks are carried out correctly and efficiently. Their expertise helps to navigate potential challenges and complexities, providing reassurance and clarity during a difficult time.

Please note, we are not a firm of solicitors. If you contact us, we may pass your case onto a solicitor from our panel. Our panel firms pay fees to contribute to the upkeep of our website.

Each solicitor we work with is authorised and regulated by the Solicitors Regulation Authority (SRA).

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