How long does probate take? And other frequently asked questions

1. What is probate?

Probate is the process of administering a person’s estate after they have died. Where the individual left a Will, the Grant of Probate confirms that the Will is valid and gives the people named as the Executors, the authority to deal with the deceased’s estate. This includes, collecting in the deceased’s assets, paying any liabilities, and distributing the estate to the beneficiaries.

If the deceased did not leave a Will, then the document issued by the court is called the Grant of Letters of Administration, and those dealing with the estate are called Administrators. The individual’s estate will be distributed according to the intestacy rules. We explore intestacy in more detail in our article here.

The term Personal Representative is used to describe both Executors and Administrators.

Whilst Probate relates to the process when a Will has been left, it can be incorrectly referred to as the generic procedure for obtaining either form of Grant.

3. Are there any time limits I should be aware of?

There are several time limits to keep in mind:

• Inheritance Tax – If there is inheritance tax to pay, then this should be paid (or arrangements made) by the end of the sixth month after the person’s death. If the necessary tax is paid after that date, then interest will start to accrue on the sum owed.
• Inheritance Tax Account (IHT400) – Although the tax is due earlier, the deadline to report to HMRC on the value of the estate is 12 months from the date of death. Otherwise, a penalty could be issued by HMRC for late filing. Sometimes you will have to report an estate and submit the tax forms, even when there is no tax to pay.
• Claims against the estate – Under the Inheritance (Provision for Family and Dependants) Act 1975, potential claimants against the estate generally have 6 months from the date of the issuing of the Grant to make a claim. The claimants have a 4-month window within which to serve their claim. Therefore, it is possible that the Personal Representatives may receive a claim under the Act, 10 months after the Grant has been issued and it is often advisable to withhold distributing the estate until after that date has passed.
• Trust Registration Service (TRS) – Where an estate administration continues beyond 2 years from the date of death, or in certain circumstances where property is held jointly or the estate is “varied”, then it may need to be registered with TRS depending on the wording of the Will. Estates over certain threshold values set by HMRC also need to be registered as “complex” estates.

There are no strict deadlines for applying for the Grant or for dealing with the administration of the estate; however, Personal Representatives are expected to act in a timely manner and delays may cause asset and tax issues or complaints from the beneficiaries. Therefore, it is best to deal with the estate as promptly and efficiently as possible.

5. Do I need to use a Solicitor?

There is no legal requirement to use a Solicitor. However, many Personal Representatives choose to do so in order to make sure the estate is administered efficiently and correctly.

The assistance of a Solicitor can be particularly helpful where the estate is large or complex, for instance, there are multiple assets, inheritance tax considerations, potential disputes, or foreign elements to the estate. Even where an estate appears straightforward, we are often asked to assist with specific aspects of the process, such as preparing the probate application.

If you report incorrectly to HMRC or underpay the tax, distribute to the wrong people, or make other mistakes which could be seen as negligent, it is not an acceptable excuse to say that you are not familiar with the rules or process. You are under an obligation to seek professional assistance to ensure things are done correctly and the costs of doing so are a legitimate deduction from the estate.

As you will have gathered from the above, every estate is different and the requirements will depend on the facts of each case. We are happy to provide support tailored to your needs, whether that involves helping at key stages or carrying out the full estate administration on your behalf. If you would like assistance in relation to an estate, please get in touch with one of our team.