Probate Questions and Answers
Last updated 20th March 2012
Probate : What is a Warning to a Caveat ?
A Caveat prevents a grant of probate being issued, and lasts for some 6 months. If the Executors of the estate object to the Caveat and wish to seek it's removal, then a Warning can be issued against the person who has issued the Caveat. This requires the person who has entered the Caveat to state their interest in the estate as well as a short sentence stating why the caveat has been issued, a legal document called an Appearance. This must be filed within 8 days of receipt of the Warning. If not filed the person filing the Caveat can apply to the Court for the Caveat to be removed.If you need help with a Caveat we have a dedicated team that handle all issues arising from Caveats. Call us now on 0844 740 0948
Will doesn’t appoint an Executor ? what happens then ?
If a will does not name an executor or perhaps the executor who is named does not wish to act, the person or persons who would be entitled to take out the grant as though the person had died without a will are entitled to apply for a grant. The grant which they receive in this case is called letters of administration with the will annexed, but in all respects it is effectively the same as the normal Grant of Probate.
Deed of Renunciation : I don't want to act as an executor
If you do not want to act as an executor you have a number of options. you can delegate the task to a probate solicitor, or alternatively you can be power reserved and let another executor 9 if there is one ) apply for probate. If you neither want to do the work personally nor even have the responsibility of working with a professional you can renounce probate altogether. If you renounce that is an end of the matter as far as you are concerned and you have no further involvement or responsibility. For more on the Duties of an Executor click here
We regularly answer lots of questions through our free Probate helpline if you have a question relating to probate please e-mail us or call us on 0844 740 0948.
Set out below are the most recent questions we have assisted clients with :-
What happens if the Will doesn’t appoint an Executor ?
If a will does not name an executor the person or persons who would be entitled to take out the grant as though the person had died without a will are entitled to apply for a grant. The grant which they receive in this case is called letters of administration with the will annexed, but in all respects it is effectively the same as the normal Grant of Probate
Do you need the original will do apply for probate ?
The original will is always required when applying for probate. If the original will is lost then immediate legal help should be sought. The reason for this is that if the original is lost, the probate registry will require a detailed affidavit setting out the reasons for the loss of the original whilst any blood relative prejudiced by the copy will being admitted to probate must be informed, and their consent sought. This can cause significant areas of dispute if the copy will differs from the way the Intestacy rules would apply. We can help if you have lost the original will and need to make the application. Call our helpline on 0844 740 0948
Contesting a will : time limits
If you are serious about contesting a will, it is always really important to immediately seek legal advice and help. For example, if you wish to submit a claim under the Inheritance Act then the time limit is just 6 months from the date when probate is issued. By contrast there are time limits which operate depending upon the nature of the claim, for example a creditor has 6 years to bring a claim, while if a beneficiary wishes to bring a claim he or she has 12 years. There is no time limit for a claim made if it arises due to fraud.
What does probate mean ?
If you are an Executor or Administrator and have never undertaken the probate process before, it is likely that on contacting a bank or building society to notify them of a death, they will advise you that something known as probate must be obtained. Probate is a legal term given to the process that is followed after someone has died. It ends with the probate registry issuing a legal document called a Grant of probate. If there is no will, it is called a Grant of Letters of Administration. If you need help applying for probate call our probate helpline on 0844 740 0948
What is the Colonial Probate Act ?
The Colonial Probate Act governs those Countries who the UK has reciprocal agreements with relating to the recognition of foreign probate documentation. If a person has died in a Country recognized under the Colonial Probates Act, this means that the foreign grant can be resealed in the UK.We have a dedicated team that handle foreign probate matters and if you need assistance with a reseal application in the UK, call us on 0844 740 0948
How can I Stop probate : I want to challenge a will ?
The starting point in contesting a will, is to prevent probate being issued. To do this a Caveat can be issued against the estate, this prevents the probate registry issuing a Grant of Probate, and therefore allows time for the will to be reviewed and a possible challenge mounted. If you need help issuing a Caveat call us on 0844 740 0948
Probate : Solicitors costs and fees ?
We charge a simple fixed fee payable once all work is completed. We believe this mush easier, and simple to understand than the more traditional method of charging by Solicitors, which involves a hourly rate and a percentage of the estate. Banks by contrast will also charge a fixed percentage of the estate. If you would like a fixed fee quote call us on 0844 740 0948
Wills and Probate : How can obtain a copy of a will ?
Once the probate Registry issue a grant of probate then the will becomes a public document available for review. You can obtain a copy of a will and probate records by clicking here or by contacting the probate registry direct.
Resealing Probate : what does this mean ?
Sometimes a Deceased will have died outside the UK but still have assets that need collecting in the UK. If probate has been undertaken, abroad, then in certain circumstances, the foreign probate maybe, resealed by the probate registry in the UK. Whether this is possible, will depend upon whether the Country the deceased died is part of the Countries recognized by the UK under the Colonial Probate Acts. Example countries include, South Africa, Australia,New Zealand, Canada. If probate has been issued abroad and the Country is not part of the Colonial Probate Acts, and there is no will in the UK, the application can be very complex and immediate legal assistance should be sought as the probate registry may well require what is known as an affidavit of foreign law. We have a dedicated team that regularly handle Probate Abroad, if you need help and assistance please e-mail us email@example.com
The Deceased owned a property do I need probate to sell the property ?
If the Deceased owned a property in their sole name name then Probate will definitely be required. The reason for this is the that the Buyers will require evidence that the Seller ( the Executor ) had the authority to sell the property. Even if the property is not to be sold then the Land Registry will still require the Grant of probate or Grant of Letters of Administration to transfer the property.
Probate Costs and Fees
How much will probate cost is a common question. We offer a simple easy to understand fixed fee service for probate, in this way you know exactly the costs that will be charged at the conclusion of the case. We do charges fees upfront and our costs are paid from the estate assets. By contrast alot of banks will charge a fixed percentage of the value of the estate often as much as 3-4%, we don't believe this is fair as often it does reflect the amount of work required to administer the estate. Other ways of charging by Solicitors relate to an hourly rate and a fixed percentage of the estate ( normally 05.% to 1.5% ) the feedback from our clients is that they much prefer our fixed fee service.
Do I need probate ?
Whether probate is required depends upon the value of the Deceased persons assets. If someone had assets over £15,000, then the bank or building society will always require a grant of probate or grant of letters of administration, as the grant provides the authority for the Executor or Administrator to collect the Deceased persons assets. Probate would also be required if the Deceased person left a property.Sometimes probate isn't always required this typically arises when the value of the deceased persons assets is very small or when the majority of the assets are held jointly which means that the assets will be pass to the survivor
Contesting a Will : what can I do if I am unhappy with a will ?
If you have been left out of a will and believe that you ought to have been left a 'reasonable financial provision' you can make a claim under what is known as the Inheritance Act 1975. To do so you must fall within one of the categories of persons entitled to make a claim. Such persons include, the husband, wife of civil partner of the person who has died, a Partner who lived with the Deceased for at least two years before the death, a child of the deceased. There are very strict time limits to bringing such claims ( 6 Months from the date of the grant of probate ) and therefore immediate legal help should be sought. Other grounds to contest a will relate to execution of the will ( how it was signed and dated ), maybe the deceased failed to deliver a promise or the Deceased lacked capacity. Given the complexities of persuing such claims immediate legal help and assistance should be sought. We have dedicated contested probate team that can advise you of the steps to be taken the helpline number is 0844 740 0948.
Probate : Does an Inheritance tax return have to be filed in every case ?
An Inheritance Tax return must be filed in every case, without a IHT return being filed the Probate Registry will reject the application. Typically, if the estate is below the IHT threshold of £325,000 an IHT form 205 must be filed while if any tax is due or the estate is in excess of £325,000 then an IHT form 400 must be filed with the Inland Revenue who will then provide a receipt in the form of IHT 421, which the probate registry will need
Contested Probate: How Can I stop probate being issued ?
A Caveat can be issued to prevent probate being issued. Once in place a Caveat lasts for a period of some six months, after which it can be renewed for a further six months. The Executor or Administrator of an estate can issue what is known as a Warning to the person that has entered the Caveat. A reply to a warning ( known as as an Appearance ), must be served within 8 days of receipt of the warning. We have a dedicated team that regularly handle contested probate cases and regularly advise upon the use of Caveats, for further help call us on 0844 740 0948.
Probate and Inheritance tax : I am applying for probate and there is Inheritance Tax to pay, does this have to be paid before the Grant of probate ?
All inheritance tax must be paid before the grant of probate is issued by the Probate Registry. When the grant of probate is applied for the Probate Registry will require a sealed IHT form 421. This confirms the payment of Inheritance tax. Inheritance tax on property can be paid in installments while inheritance tax on cash assets must be paid immediately
Probate Problems : Do I need the original will to apply for probate ?
The original will is always required by the probate registry. If the original cannot be located, the the Probate Registry will require an affidavit setting out how the circumstances as to how the original will has been lost. In addition, the the Probate Registry will also want to know who is prejudiced by the copy will, in otherwords who would inherit under the Intestacy Rules. Unless their consent is forthcoming then it is unlikely the Probate Registry will admit the copy will. For this reason, disputes can be common whenever the original will cannot be located.
We have a dedicated team that regularly handle probate problem cases, and have acted in numerous copy will cases. Please call our helpline for further assistance on 0844 740 0948.
Probate : Executor Duties : I am one of two Executors but live abroad can I still apply for the grant of probate ?
If you live abroad you can still apply for a grant of probate, however this will obviously cause practical difficulties in you attending Court if a person application is made. If a Solicitor is instructed, the lawyer could still send you all the relevant paperwork to sign, which can be signed before a Notary Public abroad. Alternatively, you could appoint a friend or Solicitor to apply on your behalf under a power of attorney. A third option would be to allow the other Executor to apply on their own with you either renouncing probate, or alternatively agreeing to power reserved. This means that you could re-enter the probate process at a later date should you wish.
Contested Probate: What is a Caveat ?
A Caveat is a procedure used to prevent the issue of a grant of probate. A Caveat is issued by the Probate Registry and remains in place for a period of 6 months. It is frequently used in contested probate probate disputes. The Caveat can be renewed every 6 months. If an Executor wishes to remove the Caveat, the first procedural step is to issue a Warning to the Caveator ( the person entering the Caveat ) the Caveator then has a period of some 8 days to enter what is known as an `Appearance` to the warning.
We have a dedicated team that handle contested probate cases and can advise on all Caveat procedures. Please call our Probate Helpline on 0844 740 0948 for help.
Probate abroad : How can I obtain a grant of Probate in the UK if the Deceased died abroad ?
We regularly encounter situations whereby someone dies abroad but leaves UK assets. Typically, a grant of probate will be required by the bank or building society to release the UK held assets. If the Deceased left a will, probate can be obtained using the UK will. Typically, the probate registry will want to ensure that the will definitely covers the UK assets. Alternatively, it maybe possible to have the foreign grant of probate resealed in the UK, if the Country forms part of the Colonial Probates Act. If the foreign grant of probate cannot be resealed, then a formal application must be made by the person entrusted with the administration of the Country were the Deceased was domiciled. This can be a very complex area, and expert legal help should be undertaken. We have a dedicated team that deal with foreign probate cases in the UK, please call us on our Probate Helpline on 0844 740 0948
I am the next of kin of the Deceased and cannot find a will what happens to the estate ?
It is important that steps are taken to locate any will. Typically, a copy will have been kept with the Deceased's papers, or alternatively stored with a local solicitor while the Principal Probate Registry does offer a storage facility. If no will can be found then the Deceased's affairs will be subject to the Intestacy Rules. These are a series of rules that set out the order of entitlement to inherit a Deceased persons estate. Details of the Intestacy Rules can be found be clicking here.
I am a Executor and now want to sell the house of the Deceased do I need probate ?
As an Executor you have a duty to collect in and deal with the Deceased's assets. Given this you can put the property on the market, however you will not be able to sell the property as the purchaser's will require evidence of your legal entitlement to sell the property, only the grant of probate will show this.
We have a specialist team that deal with probate property issues and can help you obtain probate quickly if you are involved in a house sale. Call our team on 0844 740 0948
What does Probate Cost ?
Most Solicitors have traditionally charged their Probate Fees based upon a fixed hourly rate and a percentage of the estate value. Understandably, the feedback from our clients is that they don't like paying hourly rates or a percentage, as this doesn't provide them with any certainty as to what the final probate fees charged will be. Equally, most banks charge a fixed percentage too, often around 3-4%.
So how do you charge clients ? we charge a simple, straightforward fixed fee. As specialist probate solicitors, we are able to determine the likely level of fees charged straightaway at the beginning of the case. We believe charging a fixed fee is much more easy to understand and more transparent. Other costs that must also be paid include the Court fees that will be charged by the Probate Registry. A personal application fee is £90, while if a solicitor is used to obtain the grant the fee is £40.Why choose us ? click here
How long does Probate take ?
The length of time probate takes ultimately depends upon the size of the estate. Typically, the starting point is to value the Deceased's assets and liabilities. Thereafter, the inheritance tax returns can be completed and the application to the probate registry made. Once the grant is issued the various assets can then be collected, and the estate distributed. Those cases were the Estate is under the inheritance tax threshold are often much quicker to conclude and typically can take anything between 2-3 months. For estates involving inheritance tax we typically find the probate can take upto 5 months. These figures represent a guide only.