The term ‘probate’ encompasses the entire process of distributing the assets of a deceased estate. This gives it definitive status and is intended to circumvent squabbles that could take up expensive court time. This article is our complete guide to probate in high-level summary form. More detail will follow in subsequent posts.
The English noun ‘probate’ probably derives from the Latin verb ‘probare’ meaning to try, to test, to prove, and to examine. Its earliest use dates back to 1463, when the meaning would still have been evolving. However, nowadays the process is clearly defined as we shall explore in this article.
The Origins of the Probate Process in England and Wales
Prior to the Wills Act of 1837, estates usually passed to the closest relatives as the Church defined the rules of genealogy. However, from 1837 onward the Court of Chancery assumed control.
This was a court following a loose set of rules and with jurisdiction over trusts, land law, the estates of lunatics and the guardianship of infants. If you are inclined to think the law is an ass as Charles Dickens remarked, this may give you cause to chuckle. Nowadays the Chancery Division of the High Court has oversight over probate.
Scratching the Surface of the English Probate System
- Probate is the legal process whereby a deceased’s assets are gathered together and shared among their debtors, and then their heirs
- The Chancery Division of the High Court of Justice is the only body in England and Wales with authority to kick start a probate process
- The Probate Registries within this system issue permission to proceed with due process. We call these collectively ‘grants of representation’.
- These grants of representation empower executors to close bank accounts, settle debts, sell assets – even property if necessary – and distribute the estate.
Our Complete Guide to Probate in England and Wales in More Detail
More about grants of representation
Grants of representation are the first major topic in our complete guide to probate because they define what follows. The two commonest types are:
- Grants of Probate where the deceased left a legal will that passes the tests applied by Probate Registries. The executor’s task is to precisely follow the contents of the will without deviation, fear or favour.
- Letters of Representation where the deceased did not leave a legal will that passed the tests applied by Probate Registries. In this case, the executor’s task is to distribute the assets according to the Laws of Intestacy.
These are the two commonest Grants of Probate as applying in England and Wales. There are only two exceptions to this rule. These are (a) if an estate is worth less than £5,000, and / or (b) all assets are owned jointly and pass to the spouse then a Grant is not usually required.
How to go about applying for a grant
An executor of a will’s first task is often applying for a Grant of Probate after they found a legal will. Alternatively they should apply for a grant of letters of administration after they have concluded the deceased did not leave one.
However, beyond that legal nicety their duties are universally the same, including closing bank accounts, settling debts, selling assets even property if required, and distributing the estate to the rightful heirs.
The Broad Procedure for Distributing Assets
Distributing assets comes up next in our complete guide to probate. The executor is wise to follow procedures carefully when it comes to sharing out the net assets of a deceased estate among lawful heirs.
That’s because this is the point where all and sundry may come to the party to collect what they – sometimes mistakenly – believe is their entitlement. It can take time and trouble, and even a court decision to convince them of the following:
- If the deceased left a legal will, then their entitlement is what the will says. When they do not feature in the document then they probably walk away with nothing.
- When the deceased did not leave a legal will, then their entitlement is according to the rules of intestacy. If they do not feature then they probably walk away empty-handed.
They may be entitled to contest the above under the Inheritance (Provision for Family and Dependents) Act 1975. However, they have to be able to prove they depended on the deceased prior to their death, but there is no current provision for this continuing.
People succeeding with such claims are typically spouses or civil partners, cohabitants of two or more years, children, and people who can show they were being supported financially by the person according to Wright Hassall.
The Intestacy Process in England and Wales
The Probate Division of the High Court of Justice or the local District Probate Registry appoints an administrator where a deceased did not leave a legal will. The following are among the possibilities in order of priority.
- The surviving spouse / civil partner
- The next of kin
- The Crown
- A creditor
- A stranger
If a nominee accepts, then they must appoint a lawyer to advise them. If they decline, the Court will approach the next person on the list.
The Probate Division usually nominates two administrators where a child under 18 stands to inherit, or receive a life interest.
How to Stop a Probate Application in Its Tracks (For a While)
Our complete guide to probate returns to almost where it started. Until now, we have assumed the Grant of Probate proceeds smoothly and the executor closes out the will.
However, there are occasions where a person with a genuine interest disagrees with the probate nominee, or contests the legal status of the will. In such a case they may:
Apply online or complete form PA8A and send or take it to any district probate registry. They will need to know the full name, date of death and last address of the deceased and their home address in England or Wales.
This will cost them £20. They should have a genuine reason for applying, because there is a potential penalty for wasting the Court’s time.
What to Do If You Believe There Might Be a Will After All
The National Archives only curates wills proved in England and Wales before 1859. Since then, the Principle Probate Registry has stored copies of every Welsh and English will that passed through the probate process.
There’s a searchable index covering 1996 through to the present, but you only have to pay when you download a record after you decide to read it. The search fields are surname and date of death. However, you will not be able to access information on particular trusts that way.
This Completes Our Complete Guide to Probate in England and Wales
We have loads more useful information to share concerning how probate works in Wales and England. We’ll be drilling down in more detail in future. You are more than welcome to suggest topics that interest you particularly. That’s the end of this post sharing our complete guide to probate. Until next time keep safe and take care until we welcome you back.