Is probate necessary?
Before spending time and, possibly, money on the probate process it’s important to pause and consider the facts – is probate actually necessary?
Assets that are held as ‘joint tenants’ will pass automatically to the survivor(s) when one of the joint tenants dies. Typically these are bank accounts and properties. Care must be taken with houses in particular, because land and building are often owned as ‘tenants in common’. Where this is the case the owner’s share of the property will pass under their Will (or the intestacy rules) rather than to the survivor. In practice this is often the same person, but not always!
Where all of the assets owned by the deceased are held as joint tenants, a grant of probate may not be necessary.
It could also be the case that the value of the assets are such that the bank will release the funds without a grant of probate. Always check this first.
However, there are other reasons why it may be prudent to obtain a grant of probate despite this, so always take advice.
It all starts with the Will (probably…)
Once you’ve determined that you need (or want) to obtain probate, where does one start?
The Will is the foundation upon which probate is built. A typical Will appoints executors, giving them the authority (and imposing a duty on them) to administer the estate.
Legally, the executors need nothing more to enable them to move forwards with the estate administration. However, the various organisations that make up the building blocks of society require more than a Will as proof. The banks, building societies, Land Registry and share registrars (to name a handful) require proof from the court that the executors have that authority.
The proof comes in the form of a ‘grant of probate’ issued by the Probate Registry – this is effectively a court order, validating the authority of the executors and the execution of the Will.
Remember, this article considers the position and process regarding the Probate Registry for England and Wales. There are different rules in Scotland and Northern Ireland.
Can any Will be ‘proved’?
When the executors have obtained the grant of probate, the Will is said to have been ‘proved’ by them.
However, there are statutory requirements regarding the validity of a Will. If these are not met then the Will cannot be proved because it is invalid. Not only can it not be proved, it has no legal effect in law.
The requirements can be found in the Wills act 1837, s 9, one of the oldest pieces of legislation still in regular use today. In broad terms, the Will must be:
- in writing (but not necessarily typed);
- signed by the testator (the person making the Will);
- witnessed by two independent people (not benefitting under the Will).
Regarding the last point, a Will witnessed by a beneficiary is still valid. However, that beneficiary will lose their entitlement under the Will.
There are some other requirements relating to age, mental capacity and intention but we will not discuss those in detail here.
Do the executors have to act?
As we will see in a later article, the role of executor in probate is a burdensome one and so you cannot be compelled to act as executor. An executor can:
- Act and prove the Will. They accept the role and take on the responsibilities, and will be named on the grant of probate;
- Renounce probate. They cut all ties with the estate administration and have no responsibilities. This is usually done by way of a formal document. There may be circumstances where the executor has taken certain steps and can no longer renounce – in effect they are ‘in too deep’. This is called ‘intermeddling’;
- Reserve their power. This is a halfway house – the executor is not acting, but not renouncing. They are stepping aside to let others act, but reserve their right to step back in at a later stage, if required. This is the favoured option for those who do not want to take an active role in the estate administration.
Remember, any decision not to act as an executor usually has no effect on that person’s entitlement as a beneficiary. A possible exception to this might be where a legacy to an executor is conditional on that person acting as executor.
Usually, all executors named in the Will are entitled to act (assuming they are 18). This means that a single executor could not apply for the grant without reference to the other named executor(s). They must all be accounted for.
What if there is no Will?
Research reported by the Financial Times in 2023 revealed that half of adults in the UK do not have a Will. It is not surprising, therefore, that many of us die without one.
Grants of probate are issued to executors. Where there is no Will, the grant will be issued to the ‘administrators’ and is called a ‘grant of letters of administration’.
Not just anyone can apply to act as an administrator – there are rules as to who can apply. The statutory order is found in Rule 22, The Non-Contentious Probate Rules 1987. In summary, the order of priority in relation to the person who died is:
- Spouse or civil partner;
- Children and further ‘issue’ (a direct descendant);
- Parents;
- Siblings of the ‘whole blood’ (brothers and sisters who have the same parents as the deceased);
- Siblings of the ‘half blood’ (brother and sisters who have one parent in common with the deceased – usually called ‘half-brother’ or ‘half-sister’);
- Grandparents;
- Aunts and uncles of the ‘whole blood’ (a full brother or sister of the deceased’s parent); and
- Aunts and uncles of the ‘half blood’ (a half brother or sister of the deceased’s parent).
Nobody can apply for the grant if there are people alive in the category above, unless those people have been ‘cleared off’ (usually because they don’t want to act and renounce).
Unlike executors, applications can be made on a ‘first-come-first-served’ basis. This means that, where there are multiple people in the same category (perhaps several children of the deceased) then one can apply without reference to the others. Nevertheless, this doesn’t prevent up to four from the same category applying. In fact, where there is a minor beneficiary, it will be necessary for at least two administrators to apply.
What about a ‘grant of letters of administration with Will annexed’?
Occasionally there is a Will, but the appointed executors have died before the testator, or are unwilling to act. In rare cases (usually in homemade Wills), there is simply no appointment of executor at all.
The failure of any valid appointment of executor (or acceptance of the role) does not affect the validity of the Will itself.
However, it does mean that a different set of rules will be needed to establish who is entitled to act as administrator. This time, we turn to Rule 20, The Non-Contentious Probate Rules 1987. In short, it is the residuary beneficiaries who are first entitled to act.
Again, applications can be made on a ‘first-come-first-served’ basis.
Missing Wills
Wills can go ‘AWOL’ for a number of reasons. Often, it is simply that the testator intentionally destroyed the Will – they ‘revoked’ it. Typically this is done when a new Will is prepared (an act which, by itself, would also revoke an earlier Will).
However, things do go missing and occasionally the Will has been mislaid and cannot be found. This does not mean that the Will is invalid, but it does present some practical difficulties.
Assuming that there is a copy of the missing Will, this can potentially be proved at the Probate Registry. There will be additional hurdles to overcome and the executors or administrators) will need to provided additional evidence to reinforce their claim that the Will is valid (rather than deliberately destroyed).
What next?
There are many other practical steps that will probably need to happen following the passing away of a loved one. These include registering the death, securing the house, organising insurance and much, much more. We will cover those practical steps in more detail in a later article.
So, the Will (or a copy) has been identified, or it has been established that there is no Will.
In order to apply for the grant of probate, it will be necessary to value the assets in the estate. The need for this is to establish whether or not inheritance tax needs to be paid. The Probate Registry will not issue a grant of probate unless the inheritance tax has been paid (or at least reported) OR they are satisfied that no inheritance tax is due.
For many assets, this valuation process will be a fairly straightforward exercise. For example, a high-street bank will usually provide ‘date of death’ or ‘probate’ balances for each account.
Other assets can be more problematic, such as leaseholds, private company shares, farms or partnership interests. The Valuation Office Agency has some useful commentary on these inheritance tax valuation principles.
Inheritance tax (IHT)
Many books have been written on the subject of IHT, considering every tiny detail of this unpopular tax. We will consider the core principles of IHT in another article.
For the moment, here are the headlines:
- IHT is charged on our assets, as valued immediately before we died;
- Almost all of the tax law relating to inheritance tax can be found in a single piece of legislation – the Inheritance Tax Act 1984;
- For those individuals who are domiciled in the UK, their worldwide assets will be brought into account. However, note the potential changes to this as announced at the Spring Budget 2024;
- We usually each have a ‘nil rate band’ to set against the value of our assets. This is currently £325,000 and means that the first £325,000 of our assets is charged at 0%. For spouses and civil partners, this can usually be doubled-up on the second death;
- A further residence nil rate band can apply where we leave our house to our direct descendants (currently £175,000). Again, this can be doubled-up;
- Lifetime gifts within seven years can affect the IHT due on death;
- There are a raft of exemptions and reliefs including ones for spouses and civil partners, charities, certain businesses and more, that can reduce the IHT payable.
For some related reading, take a look at our article on IHT as it relates to post-death claims.
The IHT400
Usually, where there is no inheritance tax due, there is no need to submit the long IHT form – the dreaded IHT400.
However, this is not always the case. HMRC will still want to see an IHT400 if the estate is not an ‘excepted’ estate. The rationale for this is to allow HMRC to scrutinse those estates where there is a complicating factor.
The sorts of complicating factors that will necessitate an IHT400 (despite there being no IHT to pay) are things like:
- Large lifetime gifts;
- Interests under trusts;
- Foreign assets;
- A particularly large estate (over £3m).
For a full list, see the government’s guidance.
If it is established that an IHT400 is required, then this must be submitted to HMRC before the probate application can be made. If there is inheritance tax due, some or all of this may need to be paid to HMRC before you can proceed.
And finally…
If you’ve got this far then you could be ready to make the application to the Probate Registry.
However, this article is really just a summary of the main steps – there are numerous other things to look out for, and actions that can be taken depending on the circumstances.
In our next article we will pick up where we left off and look at the probate application and estate administration.
In the meantime, please do not hesitate to get in touch with us I we can help. We are specialist probate solicitors serving Wokingham, Reading, Henley and surrounding areas. We offer fixed-fee probate services – expertise, a personal touch together with certainty over costs.
This article does not constitute legal advice and should not be relied upon as such. Please always seek legal advice that is specific to your individual circumstances.