Probate represents the official proof of the wills validity and is granted by the court on production of the necessary documents by the executor of the estate. Only when probate is obtained are executors free to administer and distribute the estate.
If the value of the estate is under £5,000 in total, it may be possible to administer the estate without obtaining probate. Generally, if the estate is worth more than £5,000, you will have to apply for probate of the will or letters of administration. There are a number of reasons for this:
Banks, building societies and National Savings are governed by the Administration of Estates (Small Payments) Act 1965. This only allows them to refund individual accounts up to £5,000 without production of probate.
You cannot sell stocks, shares or land from an estate without probate, except in the case of land held in the names of joint tenants where this passes on after death
If the administration is disputed or if a person intends to make a claim as a dependant or member of the family, his or her claim is ‘statute barred’ six months after the grant of probate. The right to take action remains open if the estate is administered without probate
A lay executor who managed to call in the assets of an estate without probate might miss the obligation to report matters to HMRC for inheritance tax purposes, especially where a substantial gift has been made in the seven years prior to the death
Letters of administration
If someone dies intestate (leaving no will) the rules of intestacy laid down by Act of Parliament will apply. An administrator must apply for letters of administration for exactly the same reasons that the executor applies for probate. The grant of letters of administration will be made to the first applicant.
If a will deals with part only but not all of the administration (e.g. where the will defines who receives what but does not name an executor) the person entitled to apply for letters of administration makes the application to the Registrar attaching the will at the same time. The applicant is granted ‘Letters of administration with will attached’.
Applying for letters of administration
The following demonstrates the order of those entitled to apply:
The surviving spouse (not unmarried partner)
The children or their descendants (over 18 years of age)
If there are no children or descendants of those children who are able to apply, the parents of the deceased can apply
Brothers and sisters ‘of half blood’
Aunts and uncles of the whole blood
Aunts and uncles of the half blood
The Crown (or Duchy of Lancaster or Duchy of Cornwall) if there are no blood relations
Where the estate is insolvent other creditors have the right to apply.
The probate registry – applying for probate
The first step is to obtain the necessary forms from the personal application department of the Principal Probate Registry in London or the local district probate registry. The more straightforward cases can usually be handled by post or by a visit to the probate registry. The executor will complete and send in the forms, they are checked and the amount of probate fees and inheritance tax assessed. The registry officials prepare the official document which the executor then swears, attending personally to do so. The process from submission to swearing usually takes three to four weeks.
Filling in the forms
The necessary forms for applying for probate can be obtained from the probate registry. These are:
Form PA1 – the probate application form
Form IHT 205 – return of assets and debts
With the forms you will receive supporting documents which will serve as guidance to the forms and process:
IHT 206 – notes to help you with filling IHT 205
Form PA1 (A) – guidance notes for completing PA1
Form PA3 – a list of local probate offices
Form PA4 – a table of fees payable
Form PA1 is fairly uncomplicated. The form is split into white and blue sections with the applicant filling in the white sections. The form will ask which office the applicant wants to attend, details of the deceased, the will and something about you. In cases where more than one executor is involved, the registrar will usually correspond with one executor only. The form also has a space for naming any executors who cannot apply for probate, e.g. because they do not want to or have died since the will was written. If they may apply at a later date, the probate office will send an official ‘power reserved letter’ which the non-acting executor signs. This is a useful safeguard in case the first executor dies or becomes incapacitated before the grant of probate is obtained.
You do not have to sign form PA1. At the end of the process, the probate registry will couch the information you supply in legal jargon for the document you are required to sign.
Form PA1 contains a reminder that you have to attach the death certificate, the will and the completed form IHT 205. If this form demonstrates that the estate exceeds the ‘excepted estate’ threshold (for inheritance tax purposes) form IHT 200 will have to be completed.