Legal Articles – Probate
Probate is the granting of legal authority to the person named in a Will as the executor of the deceased individual’s estate. This legal authority means that the executor can begin to divide up and allocate the estate and the possessions of the deceased amongst the living, according to the wishes formally expressed in the Deceased’s Will.
Like any legal process, probate has at its heart the obtainment of legal documents that confer some sense of new legal standing upon the individual that possess them. The documentation that will be sought in the process of probate will depend upon whether or not the deceased has left behind a valid Will. If the deceased has failed to leave behind a Will, or it has subsequently been judged to be invalid, the executor (in this case called the administrator) will have to apply for a grant of the Letters if Administration. If there is a valid Will the executor will apply for a Grant of Probate.
Only the executor of a Will can apply for the Grant of Probate. The executor will be unable to perform any of their duties that come with that title unless they obtain this important piece of documentation. The Grant of Probate can be applied for as soon as the deceased individual in question has passed away. Firstly, the executor must determine whether or not inheritance tax is likely to be owed upon the estate. Inheritance tax will be owed on the estate if the value is over £325,000.
After the executor has completed the relevant tax forms (PA1 and IHT205 if the tax is not owed, PA1 and IHT400 if it is), they will be invited to attend an interview. After this the executor must apply to the Probate Registry for a Grant of Probate.
The process of applying for a Grant of Letters of Administration is slightly different. Because there is no Will a close relative, spouse, child or parent will have the legal right to become the administrator of the estate. Again this administrator will first need to determine whether Inheritance Tax will be due in the estate and then apply for the grant to the Probate Registry. The Grant of Letters of Administration will act as proof to banks and other such organisations that the administrator has the legal right to access and allocate the funds and possessions of the deceased.
The next part of the probate process is the actual act of dividing up and allocating the deceased’s estate among the living. Obviously there is much more potential for disputes to arise if this part of the process is being done without a Will specifically laying out the wishes of the deceased. In these situations it will be advisable to call upon the experience and knowledge of a trained solicitor.