What is Probate?
Probate (or Confirmation in Scotland) refers to the legal documentation that gives someone the authority to deal with someone else's assets.
When someone passes away, all of their property, possessions and money make up their estate.
If they made a will, they should have nominated one or more people to be responsible for dealing with their estate. These people are called executors.
If they didn’t make a will, then the next of kin becomes responsible. In England, Wales and Northern Ireland, they are known as an administrator. In Scotland, they will have to be appointed as ‘executor-dative’ by the local Sheriff Court.
To make things easier, an executor, administrator or executor-dative are often referred to as the estate’s ‘personal representative’.
So what is probate?
The main responsibilities of a personal representative are to gather in all of the estate’s assets, pay off any debts, and then pass whatever is left to the people entitled to it. In order to do this, they sometimes need to prove to the asset holders (like banks) that they have the authority to do this.
‘Grant of Probate’ or just ‘Probate’ is the commonly used term that refers to this ‘authority’, although there are more specific terms depending on the situation:
In England, Wales & NI, a ‘Grant of Representation’ is obtained by an executor (named in a will) by applying to a probate registry. If there is no will, then ‘Letters of Administration’ are obtained which provide the same level of authority.
In Scotland, probate is called ‘Confirmation’. This can be applied for by an executor or an executor-dative. This document gives the personal representative full authority to deal with the assets.
The official definition of probate is ‘the official proving of a will’. But as it is the authority this gives to a personal representative that really matters, it is reasonable to simply use the term ‘probate’ even when there is no will.
When is probate required?
Probate is not always required to deal with the assets in an estate.
If we take the example of normal bank accounts, they have different limits of what they will release without probate. Some limits are as low as £5,000 and some go up to £50,000.
It is always worth checking with all the asset holders if they will require to see the probate documents to release funds at the time of notifying them of the death.
If the estate has any land, property, or shares in it, then it is very likely probate will be required to deal with these assets, but there are exceptions.
Can I do probate myself?
In the vast majority of cases, yes! There are a few situations where it is, however, recommended to seek legal advice, like:
If the deceased lived outside the UK for tax purposes.
If the estate is complex or has things like trusts in it.
Where there is an inheritance tax liability and you are looking to maximise the estate’s value (which you have a duty to do if there are other beneficiaries).
If the deceased had an interest in a business.
When there are any points of contention, like a question over the validity of the will.
How much does probate cost?
In England & Wales, if the estate is worth over £5,000 it will cost £215 plus 50p per extra copy.
It is free if the estate is worth less than £5,000. The UK government is planning to introduce a sliding scale of fees based on the estate’s value in the near future.
In Scotland, if the estate is worth £50,000.01 to £250,000 the application fee is £261. Under £50k is free and over £250k is £522. Each individual certificate required to send to an institution costs a further £8 each if ordered at the time of applying.
In Northern Ireland, if the estate is worth over £10,000 it costs £237 (plus £59 if you are applying without a solicitor). Under £10k is free.
How long does probate take?
As you can appreciate, this is not so exact.
In England & Wales, the new online service is having some teething problems and therefore waiting times having jumped from the usual 10 days to months in some cases. Due to this, it is highly recommended that a property is not marketed for sale until you receive the grant of probate as it cannot be sold without it.
In Scotland, you are waiting on the local Sheriff Court. In less busy jurisdictions (outside Edinburgh and Glasgow), it can be relatively quick. Although it should only take a week or two to process an application, it can sometimes take up to 4-6 weeks.
In Northern Ireland, it is a little more complicated as you will need to attend an interview if you are applying without a solicitor (get more info).
How can I do probate myself?
If you don’t fancy the generic 80 page PDFs available from other sources, have a look at our online portal that will show you what to do, when to do it, and how to do it.