What is a grant of probate?

A grant of probate is the word used to describe the process of confirming the right of named individuals to deal lawfully with the estate of a person who has died.

If a person has died leaving a will, then the people who are named as executors are those people entitled to take out the grant of probate. The authority of an executor to act stems from the will itself, and is confirmed by the grant of probate.

If the person has died without leaving a will, or has died leaving a will, but the executors have predeceased, then there is a statutory order of who is entitled to take out the grant of letters of administration. The authority of the administrators stems from the grant of letters of administration itself.

In order to pass through the process of the court, the executors, or prospective administrators must complete an oath, whereby they swear the extent of the estate, the full name and address of the person who has died, details of the deceased’s birth and death and age at death, together with any other names by which the deceased was known. The Personal Representatives also swear that the deceased was domiciled in England and Wales and that the will attached was the last known will of the deceased.

In addition to citing the basic facts, the PRs also state that the estate was of a certain value. They then go on to promise that they will deliver up to the court accounts of the estate if requested, will gather in and distribute the assets and pay the liabilities lawfully.

If the assets are relatively few, and Inheritance Tax does not need to be paid (and there are no complicating features of the estate), then the probate registry will accept a short Inland Revenue form citing the values of the items in the estate. If the value of the estate is high (or if there are complicating features) then the longer form needs to be filled in. This long form asks more detailed questions, but both documents need to be completed with a care for the detail that is appropriate – it is not enough to make an estimate of value if you are not making an effort – if in doubt, employ someone who can tell you how much that Meissen china or that Georgian silverware is worth. If your dad was into antiques, then get a valuation – if it is all reproduction, then perhaps it might not be a high value after all. If you are claiming a transferrable tax band, then you will also need to be able to show this on the relevant form – whether it is a short form that is appropriate or a long form.

So – you tell the Inland Revenue what the estate is worth, and pay the tax (or a proportion of the tax). You take the oath and swear (on the Bible, Koran, other religious text, or solemnly affirm) the oath saying you will do the right thing. And then submit the documents to the probate registry, who, in due course, send a grant of probate. Congratulations – the will has been proved, is now a document of public record, against which you can be held to account. You may now collect in the assets, pay debts, and deal with the estate according to the law. In the case of there being no will – your authority starts now, and you may collect in assets and enter into contracts on behalf of the estate (as opposed to in your own name).

Unexpected – There may be Trouble Ahead

Today I discovered that a man who I had been pursuing gently with a view to making this new will had died, unexpectedly [1]. Not after a long illness, where one might expect to have time to make preparations, but suddenly. Not in the first flush of youth, certainly, but in the prime of working life – when one might be looking forward to retirement, but not there yet.

He leaves an old will, adult children and an ex-wife. And he did not want to spare the time from his busy schedule to make a will.

Which leads me to the thought that when making wills, it might be something that could be reviewed regularly – like getting your car serviced – and if you do this regularly, death might lose some of its sting, becoming something that is routine enough to be dealt with and put aside, rather than imbued with fear.

And that if you review the documents regularly, then if the unexpected should happen, you are in the right place – prepared.

[1] he had approached me first, but then had been busy, then on holiday, then busy…

Fraud and abuse

STEP have just sent a set of newslinks round and this story about a crooked solicitor is one of the things that I get an almost visceral reaction to.  I can’t explain it – it just seems as wrong to take money that has been entrusted to you, as it does to abuse the trust of a child – something that is beyond acceptable, and quite revolting.

Its one of those high horse things, I suppose – and heaven knows I am  not perfect  – but to make a mistake is one thing – to set out to plunder the money that belongs to another in order to get yourself out of a hole is disgusting.  Who is the person that you should be able to trust with your money, to look after you – if you pay them a fee for their time?  a lawyer.

There are cynics out there who would undoubtably say that you should never trust anyone – and point out that we once had trust in bankers and look how long we’ve had to pay for that trust.[1]

I can understand that reaction – and especially in jurisdictions where there is a general breakdown of law and order, or where the political system may be less than transparent, and potentially corrupt, temporary or imposed by force.  Those situations are not civilised, the rules of trust there are limited to you and yours and self preservation in a time of trial, of war or otherwise.

But we are living in England.  We are not at war.  We live in a democracy.  Our currency is more or less stable.  This is our civilised time, where we should have standards and trust and faith in those who profess to take care of us.  Profess – abide by a code that is to honor the individual patient or customer or student, rather than to abuse.  That professional code is not uncommercial, but should be reconcileable with business interests, and where they conflict, should prevail.  All solicitors have that in their Professional Code of Conduct, in case you wondered.

I hope that this man does have some sort of criminal sentence.  As justice must be seen to be done.  And that by looking at his path, we can learn how to catch people sooner.  Because this is a regulated profession – there must be some safeguard for the public and accountability.   Let’s not even consider the unregulated business that deals with probate and attorney matters.  Would an unregulated provider of such services face headlines in the papers and such destruction of their career and livelilhood and personal humiliation?

 

[1]  I do not remember my bank or supermarket professing any ethical obligation to me, except in relation to the selling of investments under the FSA code.  I expect my bank and supermarket, to be businesses whose prime objective is to make money out of me:  how they treat me along the way is whether I choose to stay with them or not.   I feel no personal connection to my bank other than that of inertia or convenience – a bottle of Ribena is the same in Tesco as it is in Sainsbury as it is in Asda.  If my favourite item disappears from a shelf, I can choose to go without or find it elsewhere.  I cannot trust that the supply is tailored to my needs, or desires, or that my continued use of a particular bank or store brings greater rewards than shopping around.  But then they never promised that in the first place, did they?