What is Probate? And How Long Can I Expect It To Take?

First - what actually is a Grant of Probate?

When a person dies, if they have assets in their name, these need to be passed on to those entitled after the death. If they have left a will, this provides instructions on what the person wanted. If they did not, then the government have set in place rules about who receives what.

If you are chosen to be the person in charge of dealing with the estate in a will, as an executor, you have the responsibility, from the date of death, of collecting in and distributing the assets. In order for this to occur without fraud, and with proper safeguards in case of argument, you must complete a return for the Inland Revenue and apply to the Probate Registry for the authority to be proved.

If there is no will, then the government sets out rules about who is the right person to apply for a grant of probate. As there is no will, your authority only starts when the court has appointed you as a Personal Representative, or Administrator of the estate. You do not, therefore, have the power to do anything on behalf of the estate.

Actually completing the paperwork

The next step is to complete a fact finding form for the Inland Revenue, and to swear on oath that you will do the right thing – lawfully to deal with the assets that you have charge of.

The Tax Forms

The forms that you need to fill in are based on the size of the estate - ie, how many assets there were (and in some cases what type of asset). If you have a considerable amount of assets to deal with, or the affairs of the deceased were complex, you may have to fill in a long and detailed form. If the assets are below certain thresholds, and the estate has no complicating features, the Inland Revenue short form is suitable. This is a mere four pages long, and asks for less detail.

The Oath

The oath that you need to complete will set out the size of the estate, details of the deceased, your own details, and the dates of birth, death and age of the deceased. This oath has to be specifically altered for your own situation: if you are applying for a Grant of Representation without a will, then you need to state how you are entitled to apply, and that anyone before you has had the chance to apply, but has chosen to give up that right.

What’s next?

If it’s the full Inland Revenue form, then it goes off to the Inland Revenue in Nottingham, together with the inheritance tax (if any) that has to be paid. They acknowledge that the correct initial amount has been paid and send the official receipt form either to your solicitor, or direct to the Probate Registry. Your solicitor then sends the receipt, completed Oath (and Will, if there is one) to the Probate Registry. If you are using the short form, then that accompanies the Oath to the Probate Registry. They process the form.

The end result is the grant of probate, which marks the end of the first stage of the administration – after this time, you can show the court’s official authority to all asset holders of the estate, and they will accept that authority when making payments to the estate. This permits you to exchange contracts on the sale of a house, sell shares, close bank accounts and even to be a party to litigation, if that is important to you.

So how long does it take, from the time I finish signing the papers?

The probate registry has a turnaround time of 7-10 working days from the date of receipt of correct papers. The Inland Revenue has a turn around that ranges on the complexity of the form. If you have submitted the correct amount of Inheritance tax upfront, then this might be processed within one working week. But sometimes, the Inland Revenue require longer to deal with the initial processing, and a waiting period of two weeks is not unusual.

So – probate takes a long time – even when you have got all your facts and figures right and have completed all the paperwork and sworn all the papers, the next steps may take a whole month to get through. This is something that you need to bear in mind if you are a party to litigation on behalf of the estate, or if you are dealing with the sale of a house.

By Vicky Willemse, Wills, Probate & Trusts Solicitor