What is “probate”?

“Probate” is the catch-all term used by lawyers for the work involved in winding up the estate and affairs of someone who has died. It covers not only the obtaining of the grant of representation (see below) but also the non-legal work of collecting in money due to the estate, paying any tax and debts and distributing the net estate to the beneficiaries.

There are various types of grant of representation -

• probate, which, strictly, only applies where there is a Will and the named executors are applying
• letters of administration, where there is no Will and the rules of intestacy apply
• letters of administration with the Will annexed, where there is a Will but no executor
• etc

In the note below, we refer to all these generically as “the (or a) grant”, and the person(s) making the application as “the representatives”.

What is involved?

It may be that no grant is needed: if the estate is small enough and a clear Will is left, it is often possible to collect in money by completing the paperwork required by banks and other institutions to indemnify them against liability for paying out without a grant. Any debts can then be cleared and the remaining money distributed. This will normally only apply for very small estates (up to £15,000) or where any property is jointly owned and automatically passes to a surviving joint owner. We can help you decide whether a particular estate needs a grant or not.

Do I need to use a solicitor?

In a word, “No” – but you may want to.  If a grant is needed, then there are three alternative courses of action:

Option1: Personal application

The representatives can make a personal application for the grant. The probate registry will send a personal application pack on request. Making a personal application involves completing the various forms, giving details of the deceased person’s assets and liabilities and making the application for the grant of . Those forms would then need to be returned to the relevant probate registry and the representatives would be called to a meeting (normally at that probate registry) for an interview. Assuming all is in order, the grant (and some official copies) would be issued and can be used to prove the legal authority to deal with the deceased person’s assets.

Option 2: Solicitor handling all the work

The representatives could instruct us to obtain the grant of probate and wind up the estate on their behalf, liaising with hem as necessary. If so, then most of this work would be carried out by a specialist lawyer who acts as our consultant handling probate work, and who works from home. For this work, we would charge at £180 per hour plus VAT and out of pocket expenses (such as the probate application fee of £50.00). Without details of the various assets involved, it is impossible to predict how much work and therefore cost might be involved.

As a rule of thumb, we reckon the “average” estate (if there is such a thing) involves about 15 hours’ work up to the grant of probate, and usually a little less from that point to the conclusion.  A good starting budget is, therefore £6,000 + VAT and disbursements (probate fee of £50, creditors’ advertisement of about £200, etc); if it is a “small estate” (below the IHT threshold) then £3,000 + VAT etc would be the starting point.

However, once we have had a chance to see what is likely to be involved, we will revise that estimate – upwards or downwards, as appropriate – but it will still be an estimate, not a fixed fee. We will not significantly exceed the estimate without warning and explaining why

Factors likely to increase the work and therefore the fees include –
1  Several executors
2  Specific and/or pecuniary legacies
3  Several residuary beneficiaries
4   Trusts or minority interests
5   Chargeable lifetime gifts
6   Foreign assets

Any associated conveyancing or other additional work will be handled as normal, when our normal rates will apply

The advantages of doing this are that they take the burden of paperwork off the representatives and they avoid the need for personal attendance at the probate registry for an interview – instead there would be an “executors’ oath”, prepared by us, to be sworn in the presence of any local solicitor.

Option 3: A combination

The representatives could instruct us to apply for the grant, but not deal with the other aspects, except if advice was needed in particular circumstances. For this, the representatives would need to give us all the information needed for the application (we can let you have a suitable form to use), we can prepare the oath for swearing and submit it, once sworn, with the Will, etc, to the Probate Registry. We would deal with any technical points they raise, liaising with the representatives as necessary, and send you the grant of probate (with official copies) once issued. Our fee for dealing with this would be £500 + VAT; you would also need to pay the Probate Registry’s fees.

Conclusion: Which is right for you?

If a grant is required, the decision as to whether or not to deal with it personally or instruct a solicitor will often depend on how much work is likely to be involved and on the representatives’ existing commitments – if things are likely to be straightforward, much of the work can be done personally, rather than incur the cost of using a solicitor.

Even if you are doing the work personally, if a problem crops up, you can seek legal advice on that particular problem.

One of the common problems when using a solicitor to do all of the work is the apparent lack of communication. We at Nelsons do our best to minimise this, but inevitably things can take time, especially when waiting to hear from the tax man or from big financial institutions. If you feel you have not heard from us for a while, we encourage you to phone or call in to see how things are going – but we will try to beat you to it!

If you would like to talk about particular circumstances and the best way forward, please contact us.