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27 September 2022

Probate Special Part 1 – The Probate Process

As part of our fortnightly Private Wealth Planning series Private Client partners Frederick Bjorn and Emma Harris look at roles, responsibilities and actions required for collecting probate after the passing of a loved one, and how the process may differ depending on whether a Will was left behind.

When does an estate require a grant of representation?

After someone dies, the personal representative (“PR”) of an estate (this is the executor if the deceased made a valid Will or the administrator if they did not), may require a grant of representation to be able to collect and distribute the assets of the deceased. The process is slightly different depending upon whether the deceased left a valid Will or whether they died without one, and so were intestate.

Where the deceased left a Will – the role of the executors

Where the deceased left a Will, usually executors will be named within the document and will act as the PRs for the estate administration. The deceased can choose to appoint as many executors as they like but a maximum of four can apply for a grant of representation. Where there is a Will the PRs will be applying for a grant of probate.

Not everyone appointed as an executor will choose to accept the role and act. An executor, once appointed by the Will, has the following choices:

  1. – To accept the appointment and to act;
  2. – To have power reserved and choose not to act initially but leave the door open to taking on the role of executor in the future; or
  3. – Renounce the role of executor by deed. This option tends to be a more permanent and it is harder to change one’s mind following completion of a deed of renunciation.

Executors ought to consider whether they wish to take on the responsibility of acting before any steps in the estate administration. Acting as an executor is a significant responsibility and one which may open the executor up to personal financial penalties, should they make a mistake. Once an executor has begun to act in this capacity, they may be said to have intermeddled in the estate, and once this has happened they can no longer renounce the role.

Where the deceased did not leave a valid Will – the role of administrators

Where the deceased died intestate, the Non Contentious Probate Rules 1987 govern who is entitled to administer the estate and act as administrator. Where the deceased left a spouse, they are the first person entitled to apply for grant and administer the estate. The grant that the PR will be applying for is Letters of Administration.

What is the distinction between a Grant of Probate and a Grant of Letters of Administration?

All grants received from the Courts in relation to the estate of the deceased person are known as grants of representation. A grant of probate and a grant of letters of administration are both types of grant of representation.

Once the Courts have issued the grant of representation in the deceased’s estate, the authority conferred under a grant of probate and a grant of letters of administration is the same.

There is, however, a difference between the powers of an executor and an administrator prior to the grant being issued:

  • Where the deceased made a valid Will and appointed an executor, the executor has authority from the moment of the deceased’s death and their power stems from the Will.  An example of the power an executor can use prior to obtaining a grant of representation is to enter into arrangements such as letting the deceased’s property via an assured short hold tenancy, whereas an administrator could not do so until they had obtained a grant of representation.
  • Where someone dies intestate, technically the would-be administrator has no power until the Court has issued a grant of letters of administration in their favour.

This is one of many reasons why it is preferable for the deceased to have made a Will.

How to obtain a grant of probate or letters of administration

Whether the PR is applying for a grant of probate or letters of administration, the process is largely the same.

First, the PR will need to investigate the value of the assets and liabilities of the deceased’s estate as at the date of death. Thereafter, the PR will need to calculate and pay the Inheritance Tax due on the death of the deceased. It is usually preferable for a PR to instruct a solicitor to prepare the Inheritance Tax reporting forms as there are allowances such as the residence nil rate band which a Solicitor can help the PR claim. A solicitor will also be able to consider whether any of the statutory inheritance tax exemptions are available such as Agricultural Relief and Business Relief.

Once the PR has lodged the Inheritance Tax reporting forms with HM Revenue & Customs and paid the inheritance tax that has fallen due, the PR needs to wait 20 working days from submission of the return before applying for a grant of representation.

Often the application for a grant of representation will need to be made online but there are circumstances which will require a paper application. Again, it is sensible for the PR to seek legal advice on this point to make sure that the grant of representation is applied for in the correct manner and therefore is issued as quickly as possible.

After submitting the application for a grant of representation a grant should be issued to the PR in the following weeks.  There can often be a delay at this point and it is not uncommon to wait two months for a grant to be issued.

What does a grant of representation do?

A grant ‘unlocks’ the assets of the deceased’s estate which will have been frozen on death (and therefore will have been unavailable to the executors and heirs of the deceased’s estate).  The executors will now be able to access the funds and to discharge the deceased’s debts (if any).  They will also be able to pay out any legacies and to transfer and re-register assets into the names of the heirs (or to create the trust established by the deceased’s Will).

The administration following receipt of the grant is often a lengthy process, especially if the deceased’s affairs were complicated.

If you would like to discuss any of the issues raised, please do not hesitate to contact the author or your usual Payne Hicks Beach contact.

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Frederick Bjørn
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Emma Harris
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