There are few things in this world more heartbreaking and sobering than the death of a loved one, so the last thing you’ll want to have to deal with through your grief is legal mumbo jumbo. Unfortunately, however, where property is concerned, a death of a close friend or family member will invariably lead to some legal turmoil, unless you know what you’re doing! Here we’ll attempt to steer you through the often confusing world of Probate law, and make the process as painless as possible, whilst keeping things simple and easy to follow.
What is probate?
In the most basic terms possible, “Probate” essentially refers to the process of administering the estate of someone who has recently died, but there is obviously far more to it than that. If the deceased has a written Will in place, then the process is obviously simplified a great deal, though it will still need to be processed by the court. The process will also be expedited if the deceased has named an executor (literally meaning “the person who executes the Will”) of their estate, which means somebody they trusted enough to take stock and deal with their estate after they had passed away. If this executor has been named, it’s she or he who will generally lead the probate process and will share out the estate, deal with any ensuing complications and carry out any final wishes mentioned in the Will. Assets not covered by a Will, which might include life insurance, jointly owned properties or assets owned through a living trust, will generally not be subject to the probate process. Please note that it is possible to name more than one executor and if there has been no executor named, either a blood relative or someone who stands to benefit from the Will should take the mantle of Will Administrator.
Unless you are well read and versed in the law (and if you were then chances are you wouldn’t be reading this very article) then the executor of the estate will probably need to hire a solicitor to help with the probate process. This might end up costing as much as 5% of the value of the estate, depending on the solicitor in question. The speed with which the process will be completed will depend on ease specific case, though you should be aware that it can take as long as six months or even longer if there are disputes or if there are a lot of assets and potential heirs to sort through. It’s also important to understand that all probate records are public documents, which means that, in many cases, anyone who wants to learn of your family’s finances can do so with relative ease.
How does the process of probate work?
Is there a Will?
First, you’ll need to actually find the Will itself, which could be easier said than done. It’s perfectly possible that your loved one could have written a Will without your knowledge, in which case you’ll need to do a little bit of detective work. First, check through their paperwork and personal belongings if you have access to them, and if you can’t find it there, then their bank or solicitors might have access to a copy. Failing this, they might have left a copy with a dedicated storage service, or with the Principal Registry of the Family Division, which you can call at 020 7947 7022. Note that you’ll need to provide a proof of death in order to retrieve the Will from the registry, and also proof that you are the executor of the estate. If you can’t supply this proof then you’ll need to write to the record keeper at the principal registry. Please be aware that if the deceased did not have much money in their account or owned a total sum of assets less than £5,000, their bank or building society might be willing to release the funds without a grant.
If there is a Will
If there is a valid Will and you have been named as the executor (or one of the executors) then you’ll simply need to apply for a grant of probate, which you can do through your local Probate Registry office and by filling out application form PA1. The process will generally take between 3 and 5 weeks if there are no complications such as potential inheritance tax payments or if you’ve made a mistake on the form. Any inheritance tax owed on the estate will have to be paid through HMRC.
If there is no Will
It’s estimated that only 30% of people actually have a living Will, which means it’s actually rather common for people in the UK to die without one. You won’t be able to obtain a grant or probate without a Will, but you will be able to obtain a letter of administration that will make it possible for you to access all of the deceased’s assets, such as their bank and building society accounts. If you can’t obtain either a probate grant or a letter of administration, then this will leave you in what is known as “intestate,” which means the estate of the deceased will be distributed according to intestacy rules. In this case we strongly recommend you seek out a solicitor for advice.
How does a probate house sale work?
Nobody wants to be stuck with the heartache of selling the property of a deceased loved one, of course, but unfortunately it’s something many of us will have to do in our lives. Here we’ll outline the processes involved in selling a home you have inherited from a deceased loved one.
Do I need probate to sell the property?
The first thing you’ll want to do is check the title deeds of the home, as they should state who the house belongs to in the event of the death of the principal home owner or owners. If, for example, your husband, wife or partner has passed away and the home is a joint ownership, probate is not necessary.
Sale by joint tenants or tenants in common
If the property in question was being held by joint tenants then in the event of the death of one tenant, ownership of the property will automatically transfer to the other tenant without the need for probate. All that would be required is a copy of the death certificate. In the case of tenants in common it’s a little more complicated, and will depend on the percentage of the home owned by each tenant and what they have stated in their Will.
Death of a sole owner
If the sole owner of the home has died and there are no surviving listed owners then you’ll need to obtain a probate or letters of administration before you can sell the property as the executor. Ownership might pass to the personal representatives immediately on death, however anyone buying from an executor will want proof they are entitled to it, so will require a copy of the probate or letters of administration sealed by the Probate Office.
The process of selling a probate house
If you want the process to move smoothly, then you might want to consider running the sale whilst you are applying for your probate grant as both processes will take around the same period of time (around 6 weeks on average). Of course, you won’t be able to actually sell the house until the grant has been obtained, but if you wait until after the home has been sold until you start the probate application process you might lose the sale because of an understandably frustrated buyer. Remember that you might also have to pay inheritance tax, which could further delay the process. As far as an estate agent is concerned, it shouldn’t really matter to them whether you have a probate grant or letters of administration.
If all else fails, you can call the official UK government Probate and Inheritance Tax helpline on 0300 1231072, but hopefully we’ve been able to give you enough here that you’ll be able to get by without any further help beyond that of your solicitors. Either way, good luck. We hope we’ve been able to help make this painful and often upsetting process a little easier to bear.