When a person dies, it is necessary by law that all of their personal affairs must be put in order. Below are our thoughts on probate define, as part of our guidance on what commonly happens with a probate challenge.
This is ‘Probate’ and includes ensuring that their estate receives finalisation. The person who finalises the estate is their Executor. However, the executor only has the right to access the testator’s estate once they apply.
In this guide, we will explain what probate is. Especially:
- the grant of probate;
- what the purpose of it is;
- how long the probate process typically takes in the UK and;
- why probate is necessary to deal with the deceased person’s situation.
Probate: Define why it’s necessary
Also known as ‘Confirmation’ in Scotland, probate definition is the legal process of executing a will and settling a testator’s* estate.
It is important to know that the term ‘estate’ does not simply refer to any property the testator owns. It also includes:
- making an inheritance tax return to HMRC and paying the tax due;
- their possessions;
- their cash holdings and; any land they may own, as well as;
- any financial obligations they have, including the repayment of loans, child maintenance and the like.
The purpose of probate is to give the executor the legal right to handle the testator’s estate and to make executive decisions on their behalf. Another term for this type of person is Personal Representatives.
Probate: Define What It Does
Probate allows the personal representative to do any of the following:
- Finalise all bills and close the testator’s accounts;
- Settle debts they did not pay in full yet;
- Sell or transfer property the testator owns;
- Liquidate or gather assets in all their forms;
- Calculate and pay the Inheritance Tax;
- Pay any remaining income tax (if applicable);
- Distribute the estate as the will outlines, or as the government decrees.
Who Can Apply?
The person who serves as the executor of the will is most often the one who applies for Probate. Executors tend to gain their role through declaration in the will.
However, the situation might arise where the Executor dies. Accordingly, an Executor might also not get a declaration in the will. Moreover, there might not be a will in the first place.
In these cases, the following people can apply for probate instead:
- The testator’s surviving spouse. Additionally, this can be done regardless of if the couple is in separation at the time of death.
- Also, the children of the testator can apply;
- Finally, any other close family members.
If you believe the person who applies for probate is not fit to administer the estate, you can contest it. You can also contest a will if you have a valid reason, but this should be done with the advice and aid of specialist solicitors.
You should be aware though of what happens if you contest a will and take it to court without a reasonable chance of winning. Accordingly, there is a good chance you will be wholly liable for the cost of taking such action. Moreover, that includes the costs of the other side and the court costs.
Probate: Define Who Can Apply
The person who has the right to apply for probate^ can either:
- apply online through the government website or;
- hire probate solicitors to do so on their behalf.
If there is no will, the process is similar, but instead of probate, you would instead apply for Letters of Administration. There’s also the matter of an intestate estate, in which the will parties present to the probate court nevertheless earns an invalid declaration.
When you apply, you will need the following information to send in either online or through post as part of the process of administering:
- The original Will;
- The original Death Certificate or Interim Death Certificate;
- Confirmation of an estimate of the estate’s value, critical for estate planning, real estate issues and more.
You will also have to to fill out a few forms. Which forms those consist of in particular will depend on which nation within the UK the testator lives.
For example, suppose the testator lives in England or Wales. In that case, you’ll need to fill out the PA1P application if they have a will. If there is no will, instead it will be the PA1A application.
In Scotland, these forms are officially the C1 and C5 documents.
Once you apply, you will need to send the original documents to the local Probate Registry. You’ll also send along:
- a fee of £215 if the estate’s potential worth is greater than £5,000.
- However, if the estate’s potential worth is under £5000, there is no fee to pay.
Probate: Define when it’s not necessary
Probate isn’t necessary when all of the testator’s assets are in a joint account with their living spouse. Also, probate is not necessary if the estate left behind is nominal, or the testator did not have any assets to speak of.
How we can help with probate
As always, legal matters that occur when applying for probate and executing a will are best done with the help of solicitors.
At The Inheritance Experts, we work with law firms who specialise in handling wills and probate. For probate purposes, this means they can effectively support and assist you through all stages of the process.
*A testator is another way of saying a deceased person for whom the will is made for.
^For example, those who are named by either the executor or a close living relative.