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WHY DOES PROBATE APPEAR TO TAKE SO LONG?

At Copley Clark we have a large and experienced private client team which deals with probates on a day to day basis and one of our most frequent questions is why does probate seem to take so long?

We sometimes are told a story about a friend of a friend who has managed to get probate within two weeks of death and distributed the estate two weeks thereafter.  We do hear this quite often and we then explain why probate can be a lengthy process, when carried out diligently.

The term probate covers the period from the date of the person’s death through the administration of their estate towards the finalisation and distribution of the assets.  When we are presented with a probate matter we look at the Will to see who are the executors and beneficiaries and then we assist the executors to obtain a grant of probate which is essentially an authority which allows them to deal with the deceased’s assets.

We do all this to apply for the grant of representation (sometimes referred to as a grant of probate or letters of administration) which is essentially a piece of paper, which will give authority to the executors to close the bank accounts, sell the property, encash shareholdings etc.

Before obtaining a grant of representation  one has to collate the information to show what assets the deceased held as at the date of their death and provide this snapshot to the Probate Registry and/or HM Revenue & Customs depending on whether the estate is taxable or not.  We write to all the institutions where the assets are held, such as banks, life policy companies, shareholding companies, investment managers, to establish the value of those assets on the date of death.

We obtain three valuations for the property using local estate agents, valuations for contents and we also ascertain whether the deceased had any liabilities.  

We write to the companies quite promptly after we are in receipt of instructions and it can take sometimes one or two months before we get the appropriate response from them.  We usually do receive a prompt acknowledgement from said companies to say that they have received our correspondence but then it goes into a queue.  We have to wait for those figures, so that we can accurately calculate any inheritance tax that may be due on the application for the grant of representation.

Once we have collated all this information into a statement of assets and liabilities we then use that information to fill in the tax forms and the probate application.  If it is a taxable estate then we must provide HMRC with a IHT400 form with any supplementary pages, pay any inheritance tax that is immediately due and await a receipt from them.   This receipt, called an IHT421, usually takes between two and six weeks depending on backlogs at HMRC to be received by us.  Once we have received the IHT421 we can then send this along with the probate application to the Probate Registry who normally take around seven to fourteen days to send us back the grant of representation.

As you can see we are already taking some time to reach this stage and we are still a long way before distribution of the estate.

Once we are in receipt of the grant of representation we can then begin to exchange contracts on the property if an offer has been received and, we can begin to close bank accounts.  Of course if a property has not had much interest in the intervening period then we have to wait for the property to sell before we can finalise any estate.

Another aspect not commonly known is that we finalise the deceased’s tax position to the date of death and also report any taxable income during the administration period to HMRC.   

Although we might and usually do make interim distributions during this time we do not like to send out all the money in case there is further tax due to HMRC.   If an executor were to pay out monies to all the beneficiaries before getting clearance from HMRC then they might find themselves personally liable for additional tax that is due and they may not be able to subsequently get it back from the residuary beneficiaries.

So once all the property is sold, the assets are collected in and, the tax position is finalised, we can then prepare estate accounts for approval by the executors and make the final distributions to the residuary beneficiaries. 

We always advise our clients at the outset of our average timeframes for probate and we do warn them that it is a lengthy process so that we can manage their expectations.

Of course we do appreciate as well that some estates are far simpler than others. For example, if you have spouses who have only joint assets which automatically pass by survivorship with no need for probate then that is much quicker than the type referred to above. Equally if the estate consists of assets all based in cash it is a completely different situation. However most of the estates we deal with have mixed assets of property and cash often held in a variety of places and many of our estates are taxable as well.

Despite the sometimes lengthy time that probate seems to take we are committed to progressing them as quickly as possible in all the circumstances. We offer a professional and courteous service to all of our clients and certainly we receive good feedback from the majority of our clients as can be seen from our website’s testimonials page.

 

Top tips for executors

 

  • Have you identified all the assets? Are there any dormant accounts you are not aware of? Maybe a search of the Unclaimed Assets Register is required
  • Are you administering the last Will of the deceased? Do you need to conduct a Certainty Will Register search to make sure?
  • Are the deceased’s income tax affairs up to date?
  • Did the deceased make any gifts over their annual exemption of £3,000 in the last 7 years? If so these may need to be added to the estate for inheritance tax purposes
  • Did the deceased owe money to anyone? Do you need to place notices asking for all creditors to come forward?
  • Are any of the beneficiaries bankrupt? If so you may not be able to pay their entitlement to them – you may need to contact their trustee in bankruptcy.
  • If the estate is taxable, which assets need to be used to pay the tax due when you apply for probate?
  • Be organised and methodical.

 

If you need help with any aspect of estate administration then please do not hesitate to contact our probate team on 0800 9752816.

 

Esther Janalli-Brown

15 June 2016

Posted in: Probate

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