Obtaining probate means making a probate application to the Probate Registry for a grant of representation, which will be a grant of probate or a grant of letters of administration depending on whether the deceased left a Will or not.
Who can apply for probate?
You can make a probate application if you are an Executor in a Will or, if there is no Will, if you are a close relative of the deceased, or by a solicitor or professional probate company on your behalf.
Before the probate application is made
Before obtaining probate, the size and complexity of the estate needs to be assessed, and you will need to work out whether there is any inheritance tax to pay.
To do this, you will need to collect details of your assets and liabilities. This may just involve bank and building society accounts but it could be more complex if the deceased had any investments, properties or other valuable personal possessions.
Before applying for probate, you will also need to obtain details of any cash gifts the deceased made in the seven years before they died as there may be inheritance tax to pay in respect of these.
The probate application requires the value of the assets to be calculated as at the date of death.
Making the probate application
There are now two ways to apply for probate of a Will, on paper or online.
An application for representation if there was no Will has to be made on paper.
For paper applications you should follow the steps below.
Complete the relevant probate application form:
You can contact the Probate and Inheritance Tax helpline to get help filling in the form.
Then complete the relevant inheritance tax form:
Send the Form PA1 and Form IHT205 to your local Probate Registry (if Form IHT400 has been used it should be sent directly to HMRC) together with:
the original Will and any codicils (and three copies)
an official copy of the death certificate
the application fee of £215 - a cheque made payable to HM Courts and Tribunals Service (there is no fee if the estate is under £5,000).
Swear an oath to confirm that the details given are correct (this can be done at your local Probate Registry or at a local solicitor's office).
In some straightforward situations you can apply for probate online. Up to four people can apply for probate online, as long as the testator regarded themselves as resident in England and Wales. You will need:
to complete the relevant IHT forms
to provide
the original Will, including up to four codicils, and two copies (if the Will has more than 4 codicils you will not be able to apply online);
an official copy of the death certificate;
to make a statement of truth (rather than swear an oath);
to pay the probate application fee, which you can do online.
Obtaining probate and inheritance tax
Before probate is granted, any inheritance tax due must be paid, and this must be within six months after the end of the month of death.
If one of the bank accounts in the deceased's sole name has enough money, it may be possible to arrange for the funds to be transferred directly to HMRC using Form IHT423.
If the main asset of the estate is property or shares, you can pay the inheritance tax in instalments and only a tenth of the total is required to be paid before obtaining probate. This is because Executors may find it difficult to sell the property quickly.
You should also be aware, however, that interest will be due on the unpaid instalments. Certain unlisted company shares also qualify for the instalment concession.
What if you cannot find the funds to pay the inheritance tax in time?
It is not normally possible for Executors to use the assets of the deceased to pay IHT without first getting a grant of probate, and the grant of probate will not be issued until the inheritance tax is paid.
This can cause some problems but it is usually possible to arrange for a bank or building society to release funds directly to HMRC to pay inheritance tax.
If there are not sufficient liquid funds in the estate to pay IHT (for example, the value of the estate is in shares or property), then you may have to arrange a short-term loan. In this situation they may want to elect to pay the inheritance tax by instalments, wherever possible, to reduce the borrowing.
Paying debts before a grant of probate is obtained
It is best practice for you to wait and pay any debts of the estate until after a grant of probate has been obtained and your authority to deal with your estate has been confirmed. However, if there are sufficient liquid assets that you can access, you are able to settle debts before you get a grant if necessary.
If there is no Will, none of the debts will be able to be settled until you have obtained a grant of letters of administration. Until then, you do not have authority to deal with the estate.
What to do once you have the grant of probate or letters of administration
Once you have received the grant, there are a number of steps you will need to take in order to finalise the administration of your estate:
Register the grant of probate with all banks, building societies, company registrars
Close the accounts and collect all the assets of the estate
Pay the debts and expenses of the estate
Advertise for creditors, to protect themselves against any further debts
Tell the Inheritance Tax Office if there are any adjustments to the figures
Make sure HMRC agrees that the income and capital gains tax affairs of the deceased are finalised, and that any tax arising in the estate after death has been paid
If you are sure no one will make any claim against the estate, and that you are protected against debtors, pay the legacies. Where property is to be transferred to beneficiaries rather than sold, make the transfers.
Draw up accounts to show all the financial transactions in the estate and how it has been distributed. Copy these to the residuary beneficiaries.
Transfer the final balance, after debts, expenses and legacies, to the residuary beneficiaries. If the residuary beneficiary has a lasting power of attorney because they lack the mental capacity to give a valid receipt, their share can instead be transferred to their attorney.
Keep the grant and all the relevant papers safely, in case any queries are raised in future.
This is only a very brief overview of what is required to administer an estate, and many things can make the process more complicated. In anything other than a straightforward administration you should consider appointing a professional to work on your behalf.