Probate
“Probate” is the legal right to deal with someone’s property, money and possessions when they die. Probate is obtained by the personal representatives of the person who has died.
Until Probate is obtained, nobody has any right to use or distribute any of the deceased’s assets, other than to pay the Inheritance Tax and to pay for the funeral costs.
Before Probate can be obtained, the personal representatives must work out how much Inheritance Tax is due, pay this, and receive acknowledgement from HM Revenue & Customs (HMRC) that it has been paid. Only then can they apply for Probate.
Obtaining Probate is a very time consuming process. According to the government, a straightforward case should take around 16 weeks, but our experience shows it usually takes much longer. We have found that currently it is taking between 6 and 13 months even for straightforward cases. Complex cases can take a lot longer. Also, if there are any queries on the Probate application it is passed to another department and can be held up there for many more weeks before the queries are addressed. Bear in mind that these timescales are after the Inheritance Tax has been calculated and paid and HMRC have informed the Probate Registry of this. In the meantime, as stated, the assets of the deceased cannot be distributed and the family cannot use them.
In a newspaper article in December 2021 we read of two brothers who had been waiting 10 months for Probate and still saw no sign of it being granted. In the meantime their estate was losing £1,000 a month in interest on a loan which could not be repaid until the house was sold, which itself could not happen until Probate was granted.
In a statement in Parliament in November 2020, MP Liz Saville Roberts said “One family I heard of … were required [during the wait for Probate] to spend £30,000 on repairs in relation to the deceased’s estate, and of course that was at a time they did not have the funds to be able to afford that. This is not an isolated case.” During the same debate another MP said “The administration of an estate can be a stressful and difficult time for families, especially when they have just lost loved ones. Gaining access to funds quickly is important, as not all families have money readily available, and they may need the probate to gain access to those funds.”
The larger the estate the longer it takes to get Probate and to be able to distribute the legacy to the beneficiaries. The family of a person who dies and leaves a house worth £500,000 will be granted Probate (and be able to distribute the assets of the estate) much quicker than the family of someone who leaves a £1 million house, a business, a couple of investment properties, and some stocks and shares.