Probate Questions and Answers Provided by Laurelo

March 12, 2024

We would like to thank our friends at Laurelo for compiling the following Q&A. Laurelo provide an award winning probate administration service. For more, information please go to https://laurelo.co.uk/

What is probate?

Probate occurs after someone has died in England and Wales and is the process of ensuring that the deceased person’s Will is valid and confirming who is legally entitled to administer the estate. The process is about ‘proving’ legal and financial processes with the courts and other government departments. It is a court order that will grant the executor the ability to legally deal with the property, possessions and liabilities of a person’s affairs (known as their estate).

When do you need probate?

Probate is triggered by the wealth owned solely by the person who has died. If they own a property in their sole name then probate will always be required in order to transfer or sell the asset. Financial accounts can request probate from £5,000.

What is a role of an executor?

An executor is the person/s named in a Will who is legally responsible for administering the deceased’s financial affairs. They are responsible for carrying out the distribution and wishes laid out in the Will. They are required to follow strict government processes in accordance with the courts and HMRC.

Who can be an executor?

An executor can be anyone you know but most commonly it will be a spouse, adult child, further relative or friend. You are also allowed to appoint a professional in the event you do not feel comfortable in nominating someone you know to carry out the responsibility.

How long does probate take to be granted?

Currently the courts are taking an average of up to 16 weeks (as of February 2024) to grant and approve probate. There are administration duties before the application goes into court and also there are post grant administration duties to be carried out in line with the strict rules. Please note there are multiple reasons why applications can take longer than this average.

What happens if someone dies without a Will?

This process is known as ‘intestate’ and follows a very similar process to probate but there is not an executor and the administration duties and liability fall to the next of kin strictly chosen by the courts beneficiary list. The person is known as the ‘personal representative’ and instead of obtaining probate you will be obtaining ‘letters of administration’.

What are the rules of intestacy ?

These are the laws that decide how someone’s estate will be distributed if they die without a Will. The rules follow a beneficiary flow chart set by the probate courts starting with spouse and then children and moving through blood relations. The rules do not recognise unmarried partners. The rules can be quite complex and the entire inheritance may be distributed between multiple people.

How long does an application take for letters of administration?

Depending on the application type then the application can go to a different court, and these applications can take up to 9 months to be signed off and granted. Please note there are multiple reasons why applications can take longer than this average. If they do meet certain criteria, then they will be under the standard rules of ‘up to 16 weeks’.

Am I an executor if I am applying for letters of administration?

No you will classed as the ‘personal representative’ but your duties will be very similar to the executor.

Can you apply for probate yourself ?

Yes you are legally allowed to apply for probate and complete the administration yourself but with the huge caveat of you are also legally liable for the accuracy of the process. Ethical advice is always to explore options before committing.

Do I need to have a professional act for me?

No, but there are many ethical firms out there who will discuss all the choices with you so you can make a clear and concise decision.

Do I have to pay Inheritance Tax (IHT)?

Every person currently receives an allowance on death which the estate does not have to pay inheritance tax. This is currently set (Feb 2024) at £325,000. This is known as the Nil rate band.

What other tax free allowances can the estate claim?

It is possible to claim a maximum of £1,000,000 tax free allowance on an estate (without the use of trusts) by meeting certain criteria. The most common allowance is the pre deceased’s spouses’ allowances where if they died and their entire estate went to the surviving spouse the estate can claim this. There is also a property allowance known as the residential nil rate band and this can be claimed if the beneficiaries are the children of the deceased, and the home was the main residential property of the deceased.

What rate is inheritance tax?

Currently this is set at 40%. This is only paid on any amount over the tax free allowance that the estate has successfully claimed.

When does inheritance tax need to be paid?

Inheritance tax is paid by the executor on behalf of the estate. The tax must be paid within 6 months from the date of death. Interest and or penalties can be applied if this deadline is missed.

Can I put the property on the market before I obtain probate?

Yes you can, the executor is able to put the property on the market but cannot sell the property until probate is granted so it is important that any prospective viewers are clearly aware of this otherwise it could end up losing the sale. Communication and transparency are key here.

Do I need to declare any gifts given by the deceased?

Yes you do, there is a 7 year ruling that means if you die within 7 years of gifting an asset to an individual, there may be a tax liability. If a person has made any gifts in the last 7 years before their death, then these need to be calculated and included in the value if the estate and declared to HMRC as part of the administration process.

How much can I gift without it impacting HMRC / inheritance tax?

There is no Inheritance tax liability for gifts given to spouses / civil partners. There is also no inheritance tax liability for gifts given to charities or political parties. You can give away a total of £3,000 worth of gifts each year without them being added to the value of your estate on death, this is known as your annual exemption. There are other allowances that are applicable on birthdays / weddings / Christmas etc which are available on the government website.

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