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 lawyer?

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

Option 1: 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 a solicitor to obtain the grant of probate and wind up the estate on their behalf, liaising with them as necessary.

The advantage of doing this is that it takes the burden of paperwork off the representatives .  The disadvantage is the cost, which can be considerable.

Option 3: A combination

The representatives could instruct us to help them apply for the grant, and to help them with other particular aspects they feel unable to carry out on their own – though we should sat we do not normally deal with tax aspects, except advising regarding inheritance tax liability.

The advantage here is that the representatives have access to a source of help in unfamiliar circumstances, but keep tight control over the cost – the best of both worlds!

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 (or other lawyer) 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 lawyer.

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

Apart from cost, one of the common problems when using a lawyer to do all of the work is the apparent lack of communication. Lawyers should do their 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 your lawyer for a while, we encourage you to phone or call in to see how things are going.

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

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