Probate is the process of dealing with someone’s money, possessions and final wishes after they die. If the person who has died left a Will, he or she may have specified who should carry out the probate process.
Who can carry out probate?
If the deceased left a Will, they may have specified the designated executor or executors – these people are expected to “execute” the Will, which means they will share out the estate as specified and deal with any related complications, as well as carry out any other final wishes specified in the Will. However, you are not legally required to act as executor, even if you are the only executor named in the Will.
If there is no executor named, or there is no Will, someone must become the administrator of the estate – this will be someone who would benefit from the Will, or a blood relative if no Will exists.
The administrator largely performs the same tasks that an executor would, although they often have no Will to act upon.
Do they have a Will?
It is estimated that only 30% of people have a Will, so it is quite possible that the deceased died without one, leaving them what is known as intestate. However, they may well have created one without your knowledge. You should check their paperwork to see if they have a copy of this anywhere.
If there is no Will to be found among their personal belongings, they may have kept a copy with their solicitor, or their bank. Alternatively, they may have left a copy with a dedicated Will storage service, or with the Principal Registry of the Family Division. You can call the Principal Registry at 020 7947 7022, or write to them at:
The Principal Registry of the Family Division
Record Keeper's Department
First Avenue House
42-49 High Holborn
In order to retrieve the Will from the Principal Registry, you will need to provide proof of death (such as the death certificate), and you will most likely need proof that you are a named executor. You should also provide a certificate of deposit for the Will, but if you are unable to find this, you will need to write to the Record Keeper at the Principal Registry.
A non-executor can apply to withdraw the Will if no executor is named, but you would need permission from a District Judge before they will let you have the Will. Contact the Principal Registry for more on this.
Whether there is a Will or not will affect what kind of Grant of Representation you will need in order to continue the probate process.
Obtaining the Grant of Representation
To execute a Will, you will usually need to obtain the Grant of Probate or Letters of Administration. The Grant of Representation refers to the grant that you must obtain to carry out probate. The kind of grant that you need will depend on your circumstances, which is outlined as follows:
- If you are named executor in the Will – Grant of Probate
- If you are the administrator with no Will – Letters of Administration
- If you are the administrator of a Will – Letters of Administration (with Will)
The Grant of Representation will make it possible for you to access all of the deceased’s assets, such as their bank and building society accounts. Doing so without the Grant of Representation would be very difficult, if not impossible. However, the Grant of Representation may not be needed if:
- The deceased did not have much money in their accounts – a bank or building society may be willing to release the funds without a grant, or;
- Their properties, bank or building society accounts and insurance policies were joint-owned by a surviving spouse or civil partner.
In the event of joint-owned accounts, the bank or building society may be willing to transfer sole ownership to the surviving civil partner or spouse if you present them with the death certificate. However, if they had any sole accounts, you will most likely need the Grant of Representation.
You can obtain the Grant of Probate or Letters of Administration by contacting your local Probate Registry. You can do this by filling out and returning Probate Application form PA1.
Ideally, this process will take 3-5 weeks. However, if there are other complications – if there is inheritance tax to pay, or you make a mistake in filling out a form, for instance – obtaining the Grant could take a lot longer.
You will also need to contact HMRC to pay any inheritance tax due on the estate.
What to do if there is no Will
As mentioned above, a blood relative will need to become an administrator of the estate if there is no Will, as without one, the deceased’s estate will become intestate, meaning that it must be distributed according to the strict rules of intestacy.
How long does probate take?
This will depend on how complex the estate is – if there are multiple different assets, such as multiple properties, shares, and accounts, it is likely to take longer than if they had owned a single bank account and very few other assets.
It will also depend on how much time you and the other representatives can dedicate – if you are able to take extended leave from work to deal with probate, for example, you will probably be able to take care of it more quickly.
On average, probate takes between six to nine months to complete and can take up to eighty working hours. However, other complications can cause the process to take considerably longer, such as if the Will is contested, or the testator (the person whose estate is the subject of the Will) did not keep clear records of all their assets. It is not unheard of for the process to take several years to wrap up.
Useful legal documents
We offer a number of legal documents which could help you with probate, including:
- Probate letter to bank or building society - if you are named as the executor of an estate, you can use this document to enquire about the deceased's financial position and request future payments to be cancelled.
- Renunciation of probate - this document can be used if you have been named as an executor and granted probate but you wish to hand over the responsibility to someone else.
Get legal help with Wills and Probate
If you are looking for help with Wills, Probate, or any other legal matters, you should take a look at our Everyday Legal service. For a low monthly fee, you and your family can have access to a range of services, including access to a 24/7 legal advice line.
Everyday Legal also offers a Will drafting service and cover for legal fees related to Contested Probate.