Probate is the legal process of administering a deceased person’s estate — their money, property, and possessions — in accordance with their will, or intestacy laws, if no will exists.
In this guide, we take a look at the probate process, role of the executor and more, to get you up to speed on everything you need to know.
Defining Probate and What Probate Means
When someone dies, their estate may be frozen until a legal authority — called a “grant of probate” — is obtained. This document confirms that the executor (named in the will) or administrator (if there is no will) has the right to manage the estate.
Probate means ensuring the deceased’s wishes, as expressed in their will, are fulfilled or, in the absence of a will, that their estate is distributed according to the law. It involves valuing the estate, paying debts and taxes, and distributing the remaining assets to beneficiaries.
What is an Executor?
An executor is the person who ultimately is in charge of the deceased estate, this includes winding up the estate and distributing the deceased assets. The executor will usually be appointed in terms of the deceased’s will.
In order for an executor to deal with the estate, they may need to apply for a special legal authority first, called probate, or in Scotland, it is known as confirmation.
Do I Have to Act as Executor if I am Named in the Will?
No, even if you have been appointed as executor, you do not have to take on the role. This is something you can discuss with a solicitor, like us, on how best to take forward the will. Dealing with an estate can be difficult and upsetting, so do not feel like you have to deal with it alone.
The Role of an Executor
An executor must investigate the extent of the assets and liabilities in the estate and thereafter apply for Confirmation of the estate. This is a process which usually involves applying to court and on larger estates, making tax returns to HMRC.
When Confirmation has been granted by court an executor of wills duties is to in-gathers assets and pays off debts and taxes due by the estate and distributes the estate according to the deceased’s Will or the law of Scotland where there is no valid will.
Additional executor of a will duties include:
- Creating an inventory of the estate
- Working out the amount of inheritance tax due and arranging payment
- Opening a bank account on behalf of the estate
- Finding out details of money owed to the estate
- Finding out details of money owed by the person who has died
- Sharing out the estate, as set out in the will or according to the rules of intestacy.
The Probate Process Explained
The probate process can seem daunting, but breaking it into steps makes it easier to understand:
1. Locate the Will and Identify the Executor
The executor named in the will takes responsibility for handling the estate. If you are seeking probate without a will, the court appoints an administrator under rules of intestacy.
2. Value the Estate
Compile a list of the deceased’s assets (property, savings, investments, etc.) and liabilities (debts, mortgages, taxes) to determine the value of their estate.
Estate planning can be a complicated, time consuming process, our estate planning solicitors can help.
3. Apply for a Grant of Probate (or Confirmation in Scotland) & Inheritance Tax Form
Where applicable, pay Inheritance Tax to HM Revenue & Customs (HMRC). Then, submit an application to the relevant court (Sheriffs court, in Scotland), along with supporting documents and payment of any necessary fees. All the relevant forms can be found online.
There is a lot of complicated and detailed information that needs to be included in these forms, so if you’re not sure, you might want to consider enlisting the help of a probate planning and inheritance tax solicitor.
4. Settle Debts and Taxes
Once the grant representation has been issues by the Probate Registry, use estate funds to pay off outstanding debts and taxes, including
- Inheritance Tax
- Income Tax
- Capital Gains Tax
if applicable.
5. Distribute the Estate
After the debts are settled, prepare estate accounts for all payments into and out of the estate, which will leave the balance left for distribution to the beneficiaries. Send the estate accounts to the personal representatives (such as the executor in the will) for approval.
If there are no challenges to the estate, or any other complicating incidents, distribute the remaining assets to beneficiaries as outlined in the will or according to intestacy rules.
For more information, our How Long Does Probate Take guide explains the timeline, potential delays, and how you can make the process smoother.
Frequently Asked Questions about Probate
Winding up a loved one’s estate can seem daunting, but it needn’t be overwhelming. Our solicitors are here to help at any stage, and we have put together a dedicated “frequently asked questions” page to help answer some of the most common queries you may have.
If There Is No Executor Named In The Will
If the deceased has died without a will or the named executor is not willing to take part, then a petition to court will normally be required to appoint an executor. Read more on probate without a will on our website.
What Does a Probate Solicitor Do?
A probate solicitor provides essential legal assistance throughout the probate process. Here’s how our team can help:
✅ Legal Expertise: our probate solicitors understand the complexities of estate law and ensure every step is carried out correctly.
✅ Document Preparation: they prepare and submit all necessary forms and applications for probate or confirmation.
✅ Estate Valuation: our solicitors can accurately value the estate, ensuring all assets and liabilities are accounted for.
✅ Dispute Resolution: our team will handle conflicts, such as will disputes or disagreements among beneficiaries, with professionalism and sensitivity.
✅ Tax Advice: plus, they help manage inheritance tax and other financial obligations with care and expertise.
Neil Kilcoyne Solicitors are experts in probate law. Our compassionate team works tirelessly to ease your burden and achieve the best outcomes for you and your family.
Trust in Neil Kilcoyne Solicitors
At Neil Kilcoyne Solicitors, we are passionate about helping people in challenging circumstances navigate the role as executor, and apply for confirmation and probate.
We’ll take the time to understand your unique situation and offer the best probate advice you can receive, which is why we are one of the leading confirmation and probate solicitors in Scotland.
For personalised assistance or to discuss your probate case with a dedicated solicitor, contact us or call us on 0141 433 2700.
