Probate is a subject very few individuals deal with or are even aware of. We would like to help you understand what Probate is, when its required and what it means to the people you leave behind.
What is Probate?
Probate is the process for dealing with the estate of someone who has died, which generally means clearing their debts and distributing their assets in accordance with their Will.
Probate explained
Technically, ‘Probate’ refers to getting permission to carry out the wishes within someone’s Will, though the term also applies to the whole process of settling someone’s estate. If you’re responsible for executing someone’s Will, there are specific rules that set out how you notify the authorities and distribute the estate. For permission to manage this process, you will need to apply to the courts for Grant of Probate, or Grant of Confirmation in Scotland.
There are separate rules if someone dies without a Will, otherwise known as dying intestate which is covered later in this article.
How does probate work?
The process for settling someone’s affairs will depend on whether you choose to do it yourself or appoint a professional to act on your behalf. Appointing a professional can be a good idea, especially if you are dealing with a complex estate, it could be essential.
If you choose to administer the Will yourself, you will need to submit the relevant applications to apply for a grant of probate, you’ll then need to gather in all the deceased person’s assets and distribute them to the beneficiaries. This will involve notifying banks, building societies, relevant government departments (such as the council and HMRC) of the person’s death, settling any accounts they hold, tallying up their assets and liabilities, paying off any debts and inheritance tax that might be owed, distributing any gifts (money, items) and then distributing the remainder assets to their beneficiaries.
Helpfully, most government departments can be notified in a single move, via the ‘Tell Us Once’ service, including councils, the DVLA, the Passport Office, the Department for Work and Pensions (if they were receiving benefits or a state pension), and HMRC.
How long does executing a will take?
The process can take a long time, even with a straightforward estate comprising of just one or two bank accounts. Generally, it will take around six to nine months from when the person dies until the assets are distributed to beneficiaries (this time has been extended due to the COVID-19 pandemic). You should consider whether you are able to take on this time commitment, or whether you’ll need assistance.
What if probate is contested?
There are several ways which Probate could be contested, which would prevent the estate from probate being granted. In some cases, a beneficiary or relative of the deceased may enter a caveat, which can prevent, or delay this process.
This might happen if two people are entitled to apply for Probate, or if there are questions about the legitimacy of the Will. When a caveat is placed on the estate, then the person who placed it will need to state their reasons within eight days. If this does not happen, the caveat will be removed. Otherwise, it is a matter for the courts to resolve, so that Probate can be granted to whichever party it deems appropriate.
What is intestacy?
When someone dies without a Will, their estate is divided up according to standard rules, known as intestacy law. As set out in the Inheritance and Trustees’ Power Act, the rules determine who inherits what based on family connections, do not assume that everything will automatically go to a spouse or family.
The rules don’t take into account the closeness of your relationships, or who is most in need. These rules will allocate your estate to your family members in a strict order, depending on which relatives you leave behind. Usually, your spouse or civil partner will inherit the bulk of your estate but not all if the estate is over certain amounts. If you are unmarried, partners will not inherit anything.
When is a will invalid?
Just because someone has written a Will does not necessarily mean it is still valid when they die. Certain actions, such as getting married, will over-ride a pre-existing Will, so it is important to review Wills periodically. If a Will exists, but is deemed invalid, the estate will be treated as intestate and divided according to the intestacy rules.
Summary
If you are unsure about where you stand on Probate – seek professional advice. As clients of ours, you have all the resources you need, as probate guidance and advice is included as part of your ongoing service arrangement with us. Simplifying the processes for family left behind means making sure your Will is up to date and reflects what you want to happen and who you want your monies to pass to.
Although this area of the law can be complex and daunting to the everyday person, it is something family can deal with – with the right advice.
For further information on Probate, guides for executors and explanations on the services we provide, visit our website.