Probate – what is it, and do you need a solicitor?21st May 2020
The word ‘probate’ is often used to mean the whole process of administering the estate of a person who has died. In fact, ‘probate’ just refers to the process of proving a Will (which ends with obtaining a Grant of Probate).
That is why Gilbert Stephens prefer to refer to “Estate Administration”, which covers the whole process and includes dealing with the estates of those who have died without a valid Will.
Private Client solicitor at our Exeter office, Alyson Coulson, talks us through the whole process and where you may need a solicitor.
What is a Grant of Probate?
A Grant of Probate of a Will confirms the validity of both the Will and the appointment of executors by the Will, which is why the process of obtaining a Grant of Probate is called “proving a Will”.
What if there is no Will?
If there is no valid Will, then a Grant of Letters of Administration must be applied for by the persons lawfully entitled to administer the estate.
What is a Grant of Representation?
A Grant of Representation is an umbrella term which covers any kind of grant issued by the probate registry. This can be the Grant or Probate or the Grant of Letters of Administration or whichever document that proves who is entitled to administer a deceased person’s estate.
Occasionally, a Grant of Representation may not be needed, for example if assets were jointly owned and so are automatically inherited by the other co-owner.
Do I need a solicitor?
This will depend on how complex the person’s estate is. The more complex the estate, the more advisable that you should instruct a solicitor. However, even with the most basic of estates, it is advisable to seek legal advice so as not to miss anything important. Take for example, Inheritance Tax, where there may be penalties if a return is not submitted to HM Revenue & Customs, even when no tax is payable.
Assuming all goes well, the administration of an estate is a managerial process requiring knowledge of the relevant law and the various taxes that may need to be paid. The complexity of the estate depends on the value of the estate, any liabilities and the number, nature and value of any assets. What may initially seem straightforward can quickly become more complex.
For example, the process can be complicated by issues such as:
- Completing claims or disputes which the deceased was involved in;
- Dealing with trusts where the deceased was a beneficiary (which may affect the amount of Inheritance Tax payable following his or her death);
- Dealing with trusts where the deceased was a trustee;
- Dealing with any claims brought against the estate by ordinary claimants and creditors;
- Dealing with claims made by those unhappy with the terms of the deceased’s Will or who wish to challenge the validity of the Will;
- Dealing with the deceased’s business; or
- Dealing with overseas assets.
Should any of the above issues arise, it would be important to ensure that the executors are protected personally and that the interests of those due to inherit are also protected.
We would certainly advise seeking legal advice if you are unsure of the process and/or the estate is likely to be complicated. Doing so will give you peace of mind that everything will be done legally and that nothing is missed. As specialists in Probate law, there may be options we can advise on which you may otherwise not have realised, some of which could even save the estate money.
At Gilbert Stephens, we have been administering estates for well over a hundred years and the accumulated experience of our Probate and Estates Team adds up to even more than that. We are all well versed in the requirements of estate administration including dealing with estates where claims are made against the estate.
We are very fortunate also to have the help of the qualified Independent Financial Advisors of our Financial Services company, Gilbert Stephens Financial Services Limited, to help us with investments and financial aspects of Estate Administration. They can also help those who inherit with the prudent investment of their inheritances.
Find out more about our Wills, Trusts, Probate and Tax Planning Department here.
If you would like further advice on Probate and Estate Administration, email Alyson on or call 01392 424242.