What is probate? There comes a point in most people’s lives when, unfortunately, we lose somebody that is close to our hearts.
Not only does this spark significant grief, it also leaves ongoing financial implications, particularly where the deceased family member or acquaintance had been living alone in a property.
This is where probate becomes necessary. Ultimately, probate is the process of sorting out a deceased person’s property, money and estate. It is also known in Scotland as ‘confirmation’.
Normally when an individual draws up a will, it will include one or more named executor. When the individual dies, the executor of the will become responsible for all estate administration.
It does not have to be a close family member chosen as the executor of a well, however, it should be considered that the executor of the will is in charge of organising probate and should be a person you can trust.
The executor of the will can choose to hire a solicitor or opt for DIY probate. The main advantage of hiring a solicitor is the amount of time saved, however, it is a far more expensive option than dealing with probate yourself.
Who can be an executor of a will?
The executor of a will is chosen by the owner of the will and is, essentially, their person of choice to deal with their finances once they have passed away.
The owner of the will very often choose their spouse or close family member to be the executor of their will, however, you can choose anyone over the age of 18 to be the executor of your will. There is no rule that the will executor cannot be a beneficiary of the will, although they won’t be able to be a legal witness.
There can be up to four will executors appointed in your will, however, you’ll need to consider the practicality of the executors working together. In many cases it is best to appoint one or two executors to avoid the situation getting too complicated. Two executors are usually preferable in case one of your executors dies before you, you can also specify substitute executors if you’d like to.
After all, the executor of the will could have important, and difficult, decisions to make, such as when to sell their deceased family members property. They must also ensure the right amount of Inheritance Tax, Capital Gains Tax and Income Tax is paid, otherwise they may be prosecuted for tax avoidance. Therefore, it is important to choose an executor that you trust and who is capable of dealing with legal paperwork and other issues.
You should also ask for their permission and think about whether a load of paperwork, on top of dealing with your death, would be too much for them to handle. Executors can choose not to take up the role, however, once agreed, the executor has key responsibilities under the law.
What is probate process
As mentioned above, the probate process is often complicated and very time consuming, and begins when a person’s death has been registered.
Take a look at following probate timeline to give you an idea of how the probate process works:
The executor of the will should fill out a PA1 Probate Application Form and the IHT205 Inheritance Tax Form to the probate registry to apply for a grant of probate.
The executor of the will should also swear an oath at the solicitor’s office or probate registry, this is usually booked 4 weeks in advance and costs between £5 and £7.
If no further clarification is needed, the executor should receive probate within 10 business days.
Once granted probate, the executor of the will is allowed access to the total value of the deceased family member’s property, estate and finances, and finds out if they should pay inheritance tax from it.
Inheritance Tax is 40% on estates worth more than £325,000.
It is the executor’s responsibility to pay the inheritance tax due from the deceased. Inheritance tax must be paid within six months after the affected person has died. It is, however, recommended to contact the HMRC to find out if the deceased is owed tax or didn’t pay enough income tax before their death.
The final step in probate is to share out the estate. The executor will gather assets, pay off any unpaid debt accumulated by the deceased and distribute the property, finances and assets left, according to the directions of the will and essentially the wishes of the deceased.
This often involves selling the inherited property of the deceased so that assets are freed and can be distributed as the deceased person intended.
In addition, the executor may need to think about whether the deceased person’s assets will go towards paying for their funeral. The funeral, however, is not the responsibility of the executor under the law.
Who can help?
As mentioned before, you can hire a solicitor to help you through probate. Although this can be costly, it can help reduce the stress and time spent on probate by the executor (bearing in mind the executor is likely to be working in their own profession and looking after a family, pursuing hobbies etc.).
Sometimes the owner of the will may have chosen a professional to be executor alongside a family member for practicality and ease. This way the family member can deal with other family members and the solicitor can take care of the legal paperwork and probate matters.