Grants of Probate
Grants of Probate - six reasons why you might need our help
When a loved one dies, many families obtain a Grant of Probate themselves in order that they can collect in and distribute the deceased's Estate. However, complications can arise which might mean you need an expert's help.
1. There’s no Will.
If the deceased didn’t have a valid Will then a Grant of Letters of Administration is needed as opposed to a Grant of Probate. The deceased’s Estate must be distributed in accordance with the statutory intestacy rules. This can lead to disputes and other problems particularly in more complicated family situations which might mean that professional legal help is needed. Even if there is a Will, there may be doubts as to its validity which can lead to disputes.
2. Only Executors of a Will can obtain Probate
There may be complications if the Executors named in the Will are unable to obtain a Grant of Probate (for example if they are unwell or have already died themselves). It is also important to watch out for the “Chain of Representation”; if the deceased was the last surviving Executor of another Estate, their Executor automatically inherits the deceased’s position as Executor of the other Estate. So an Executor could find themselves having to deal with two Estates, one of which they may not know anything about. At that stage it is important to seek advice to ensure that the Executors can properly deal with both Estates in accordance with their duties.
3. Unexpected Claims against the Estate
Executors might be faced with unexpected claims against the deceased’s Estate under the Inheritance Provision for Family and Dependants Act 1975. This Act allows claims to be made against a person’s Estate where someone believes they have not received adequate inheritance under the Will. Potential claimants have six months to issue court proceedings after a Grant of Probate is granted, so delaying distributing the Estate is often to be recommended. In some cases it is worth delaying any distribution a further three months as, once proceedings have been issued, the Claimant has up to three months within which to serve the Executors notice of those proceedings. Such cases need careful handling so it would be wise of the Executors to get expert advice.
4. The Estate is larger or different than expected
If an estate contains land or property then a Grant of Probate (or Letters of Administration) has to be obtained, even if is a very small piece of land. Most assets of a deceased are frozen until Probate is granted, although some organisations will pay out assets before Probate. This means the issuing of Probate tends to signal the beginning of the administration of an estate rather than the end. If the estate contains assets of which the Executors were not originally aware then they may decide to bring in extra expert help in order to make the administration easier.
5. Tax issues
The estate may be liable to inheritance tax which needs to be assessed and then paid before Probate can be granted. This might be a more complicated process than expected especially if there are various tax reliefs that can be obtained. Obtaining assets to pay the tax before Probate is available to free them up can also be harder than expected.
6. Administration of the Estate needs to be carried out quickly
There is no such thing as the “Executor’s year”. The estate does not have to be administered within twelve months of the death. Sometimes circumstances mean that this is just not possible, depending on the assets, any claims etc. An Executor’s job is to administer the estate as expeditiously as possible, which can mean in less than a year. Some people refer to “Executor's Year” with regard to the payment of legacies. If legacies are not paid within a year of the date of death then interest is payable on those legacies. As most Executors are busy with their own work and families, it is often more efficient to let a Probate expert help administer the Estate to ensure there are as few delays as possible.
We have a team of lawyers who specialise in Wills and Probate matters. If you would like help or advice with any Probate matter, please contact one of our experts in the Wills and Probate department.