Yes – it is possible to obtain probate without going through a solicitor. This is a short guide on what to do when your loved one has passed away and how to obtain probate.
Probate is where you make an application for the authority to handle the deceased estate and distribute their assets. Please note that by making an application yourself you will only save on solicitor’s professional fees. You will still have to pay the court fee and a number of other disbursements by making a personal application.
It may also be likely that you have to pay inheritance tax on the deceased’s estate. This is entirely dependent on the value of their assets and whether there is a Will. You should therefore consider using someone who can advise you on the tax implications for inheritance tax, income tax and capital gains tax. You may find that you need the advice of a solicitor after all and that you haven’t saved very much on costs.
Anyone who is applying for probate should bear in mind that if anything goes wrong with calculating the tax or completing the forms for HMRC or even distributing the estate incorrectly, you will be held personally liable. For example, if you were to distribute money to a bankrupt beneficiary without investigating properly, you are the only person who is held responsible. A solicitor on the other hand will have their own professional indemnity insurance against anything that may potentially go wrong.
These are only some of the risks involved in obtaining probate and you may find that solicitors fees are a lot lower that you may have anticipated. You can get a free quote today by using the chat feature on our website or calling us on 0207 7907 311 and we will email you a quote instantly with no obligation.
HOW TO ATTAIN A GRANT OF PROBATE
If you still would like to try and apply for probate on your own, then here is a brief outline of the work involved.
- When someone dies, it is the responsibility of their personal representative (PR) to find out the value of the estate at the date of death. Therefore, you will need to prepare a report in the form of an account which shows the value of the deceased’s estate for inheritance tax (IHT) purposes and calculate whether any IHT is due.
- To obtain details of the estate you will need to go through the deceased’s paperwork to work out the total value of their estate (gross) and then account for any liabilities to work out the net value.
- Contact the building societies that the deceased has or may have had accounts with. This includes any foreign bank accounts. You will also need to obtain details of any accrued interest up to the date of death. Please be aware that accounts held in the deceased sole name and joint name are treated differently.
- Banks will need an original or certified copy of the death certificate. Certifying documents can be done by a solicitor at any local firm. The banks may also need a copy of the Will (if there is one).
- If the deceased had any shares you will need to contact the company to find out how many shares they had at the date of death (or share registrar if there is one i.e. Equiniti)
- Once you have obtained details of the holdings you will need to research the share prices at the date of death to obtain accurate figures.
- If the deceased owned any property you will need to see whether this is held in their sole name or in joint names with another proprietor. This is vital to obtain a correct valuation for HMRC.
- Consider making a PN1 search with land registry for extent of property ownership.
- If it is in joint names you will need to find out whether this is held as a joint tenancy or as a tenancy-in-common. This will tell you how the property passes to any beneficiaries or to any surviving joint tenant. You will also need to deal with any mortgage on the property and find out who is responsible for the ongoing payments.
- You will need to decide what will happen to the property if it isn’t a joint tenancy. Make sure that there is insurance which can cover the deceased home as any existing policy prior to their death will not be valid.
- Notify the Land Registry of the death (AP1 and death certificate or if property was held as a joint tenancy. An original death certificate or Grant and form DJP will also need to be provided)
- Prepare or get an accountant to work out the deceased’s tax return up to the date of death
- Contents in the property or in any safety deposit box will need to be valued by an independent third party such as an auctioneer. They will provide a detailed report of the assets the deceased had and if there are any items of significant value.
- You will need to investigate the gifts that the deceased left up to seven years prior to their death. If this is above their annual allowance then that gift will still form a part of their estate and may be subject to inheritance tax. This also includes any gifts that the deceased may have made but reserved some benefit in.
- Once you have obtained details of all of the deceased’s assets (which can include pensions, trusts, money owed to the estate…etc) you will need to find out all of their liabilities.
- If the deceased had any credit cards you will need to contact the companies to notify them of the death and to ascertain what was outstanding on the deceased account(s).
- Call into account any unpaid bills, loans, or other agreements that the deceased owed. These will need to be frozen immediately and will need to be paid once you have obtained the grant of probate.
- Unlike other liabilities, funeral costs will need to be paid straight away. If you have organised the funeral then you are the person responsible for paying this for the time being. However, if there are enough liquid assets in the deceased’s account then this can be paid directly from their account to the funeral directors.
- Overall the amount of work involved in valuing the deceased estate depends on the size and the complexity. This guide has not include any foreign assets, businesses the deceased had, types of land nor the extent of valuing certain types of assets and potential inheritance tax reliefs that may apply.
IS INHERITANCE TAX DUE?
- There are reliefs available to each individual and this can vary from £325,000 or more depending on their family circumstances and also the types of assets they own.
- Please note that an additional tax free allowance may apply (currently set at £100,000) depending on the beneficiaries of the estate and assets the deceased had.
- A deceased’s estate may not owe any IHT if they were married, widowed, widowed and married again, left assets to only their spouse, their spouse and children, to a charity, left 10% of their net estate of more to a charity, if they ran a business, if they owned agricultural property, domiciled outside the UK, AIM shares, other investments or made any PET(s)…etc. It would be advisable to speak to a solicitor who can help you with the tax consequences of the estate before you progress any further.
- If the Will was not prepared in the most tax efficient way or if there was no Will made by the deceased, then there are ways to pay less or no inheritance tax on an estate. It would be best to research of speak to a solicitor about this so that money is not unnecessarily wasted to the taxation system.
- Consider whether a deed of variation is required under section 142 Inheritance Tax Act 1984 and/or section 62(6) Taxation of Chargeable Gains Act 1992. These deeds can be extremely useful in the division of an estate and should be prepared carefully before being submitted to HMRC (if necessary). Please note that any deed of variation must be completed within two years from the date of death to be valid.
- Where the deceased’s estate does not qualify as an excepted estate (the value is over £325,000 and no residential nil rate band applies), you will need to prepare a report in the form of a full account (called an IHT400) which you then must submit to HMRC before applying for a grant of probate. This is the legal document which confirms your authority to deal with the estate.
- If you submit this form later than six months from the date of death, then interest will be charged on the estate for the delayed IHT payment.
- The IHT on the estate must be settled before probate can be obtained from the registry. You will therefore need to arrange funding if there are not enough liquid assets in the deceased estate to pay for this. A solicitor can advise you on what options are available to you as a PR.
- Where the estate is an excepted estate (below £325,000), the PR must submit a limited report of the estate to HMRC (IHT205) but they can apply for a grant at the same time. In their application for a grant, they must swear or affirm that they are not required to submit a full IHT account to HMRC.
COMPLETING THE PROBATE FORMS AND OATH
- If the estate is an excepted one you will need to complete the necessary IHT forms for submission to HMRC alongside the oath for executors (or administrators if there is no Will)
- If the estate is not an excepted one, you will need to complete the IHT400 along with the relevant schedules and the IHT400 calculation to work out the IHT payable.
- You will need to certify that the IHT calculation is correct before you submit this to HMRC. If there are any discrepancies on the form or incorrect details, then you will be held personally liable in your capacity as a PR for this.
- If you are making a personal application, then you will also need to complete the (PA1) form. This form asks for details about the estate and the deceased. It will need to be submitted along with the other HMRC forms as previously listed.
- Once the forms have been completed you will need to draft an oath to be sworn. This oath is a prescribed document that is sent to the probate registry. You will need to make sure that all the wording in the oath is correct and that it sets out the details of the estate.
- The oath will need to be sworn by all of the PRs in front of a solicitor or a notary. They usually charge a nominal fee for this depending on where you go. If there are any problems with the oath, such as incomplete or incorrect details, then it will be rejected. The solicitor who is swearing the document for you will not be responsible for the contents of the oath.
- If the deceased left a Will then this will need to be signed as well when you go to swear the oath.
- All of the IHT forms need to be sent to HMRC for their approval. They will investigate the estate and check to make sure that the details are correct. If everything is approved then they will issue an IHT421 receipt which will then need to be sent to the probate registry.
- Alongside the IHT421 you will need to send the oath to the probate registry who are then responsible for checking the details of the estate and that the oath has been completed correctly. If the deceased left a Will then the original document must also be sent to the probate registry. Please note that once you send any original documents to the registry they will not be returned.
- Once the probate registry is satisfied they will then issue the sealed grant of probate. You will also need to pay for any additional copies.
- Please note that this guide has not included the complexities of completing the forms for HMRC, the relevant schedules, the oath and other tax considerations which depend on the nature of the estate.
AFTER OBTAINING THE GRANT THERE IS STILL A LOT OF LEGAL WORK INVOVLED
- If rectification of the Will is required you will need to make an application to court within six months from the date the grant was issued.
- Distribution may be necessary (depending on the nature of the estate) to make after six months from the grant (or earlier with PR’s written confirmation). This is because there may be potential claims by anyone who was known to the deceased under the I(PFDA) 1975 act.
- Place a deceased’s estates notice (section 27) in the gazette. This ensures that sufficient effort has been made to locate creditors before distributing the estate to any beneficiaries. This will protect you from being liable for any unidentified creditors.
- Obtain insurance in your capacity as a PR if necessary. This is dependent on the nature of the estate.
- Ensure that the relevant time period has expired for Statutory Advertisements and IPFDA 1975 claims before going ahead and distributing assets of the estate.
- Obtain clear bankruptcy searches against all beneficiaries on form K16. If searches have not been completed and other measures taken to ascertain a beneficiaries financial status you will be held liable if they were found to be bankrupt.
- If there is property that needs to be transferred you will need to apply for a Land Registry Search without Priority (OS3), and arrange to execute and date the land registry AS1. You will also need to confirm with the beneficiary that they have arranged property insurance, registered the AS1 with Land Registry and have pay Land Registry fee.
- Submit a corrective account C4 to HMRC if necessary and pay additional IHT or receive repayment. Apply to HMRC for certificate of discharge on Form IHT30.
- If there are any disposals for CGT purposes or any untaxed income or interest during administration period you will need to complete Form SA900.
- Complete Estate Accounts including a final bill and then make a final distribution with Form R185 (Estate Income) if necessary and collect receipts.
So the question is, can you really get probate without a solicitor?
Yes! You can indeed apply and obtain a grant of probate without a solicitor although there are a many number of risks involved and you may end up paying more tax than you would have needed.
Please keep in mind that this is only a brief guide on the probate process and that it does not go in to details about intestacy (where someone dies without a Will) or where there are much larger or complex estates. Anyone who is planning to go about obtaining a grant on their own should thoroughly research this field and gain a better understanding of what’s involved before making an application.
Before you plan on embarking down this route, why not obtain a quote from us for our Probate fees. We offer highly competitive rates and you will be in safe hands with an experienced qualified solicitor.