What is a Grant of Probate and why do I need it?
I am often asked “Why do I need a Grant of Probate?”. Clients often believe that because their relative or friend left a will, this is the only document they will need to deal with the deceased’s affairs. In some cases, this is true, but it is often necessary to obtain a Grant of Probate.
A Grant of Probate is the document which confirms the executor(s) of a will (the person or people responsible for carrying out the wishes contained in the Will) have the authority to deal with the assets of a deceased person. If someone dies intestate (without having made a will) a Grant of Letters of Administration is required which enables assets to pass under the rules of intestacy (rules which set out who benefits when there is no will).
So why is a Grant of Probate needed?
It’s needed to give legal authority to the executor(s) and to provide reassurance and protection to anyone who holds money for the deceased or who wishes to purchase assets from the Executor. You wouldn’t be best pleased if you bought a property from the Executor named in a will only to find that there was actually a more recent will and you were no longer entitled to the house you paid £200,000 for. Equally, a bank holding £50,000 might not be best pleased if it turned out the person they had given the deceased’s money to wasn’t actually the person entitled.
So how do you get a Grant of Probate?
The process of getting the Grant of Probate itself should be relatively straightforward because effectively it is just a series of promises made by the Executor(s). Executors must go through a statement of truth, as set out in the Non-Contentious Probate (Amendment) Rules 2018 – which came into effect on 27 November 2018. Unfortunately making an application for Probate also triggers the need to submit an Inheritance Tax return to HMRC setting out the financial position of the deceased on the day they died. As with all dealings with HMRC it is advisable to take expert advice to ensure that you are completing forms correctly and providing all the information that is required. It is for this reason that I always recommend instructing a Professional Member of Solicitors for the Elderly to give you the peace of mind that you have done everything required of you and there won’t be any nasty surprises in the future.
If you have to go through this process isn’t it easier not to have a will?
Absolutely not. If you do not have a valid will you will still need to follow a similar, and often more complicated, process. It is extremely important that you have a properly prepared will to ensure your assets go where you want them to and not in accordance with the government-imposed rules of intestacy.