When someone passes away, their estate needs to go through a legal process called probate. This involves distributing the deceased person's assets, paying off any debts or taxes, and ensuring that their final wishes are carried out. Probate can be a complex and time-consuming process, but understanding the basics can help you navigate through it with ease.
Probate is the legal right to deal with a deceased person’s estate, i.e. their property, money and possessions when they pass away.
It is important that you do not make any financial plans or move any assets until you have got probate.
Applying for probate gives a person the legal right to deal with a person’s estate.
Probate serves several important purposes:
Firstly, it ensures that the deceased person's final wishes, as outlined in their will, are carried out appropriately.
It also provides a legal framework for resolving any disputes that may arise among beneficiaries or creditors.
Additionally, probate ensures that all debts and taxes are paid before the remaining assets are distributed. This protects the interests of both the deceased person's creditors and their beneficiaries.
It is vital that probate is done correctly, that the tax is paid (if tax is due) within a swift time period and that assets are distributed thereafter and in accordance with the Will or as per the rules of intestacy. Even reading the Will may not be straightforward and you cannot assume that the deceased meant XYZ, it is what is written on paper.
There are two types of grants available:
a) Grant of probate (when a person has left a Will)
b) Grant of letters of administration (when a person does not leave a Will)
There Is A Will
If the deceased has left a Will, then it is the Executor who will apply for probate (if necessary – see below) and deal with the deceased’s estate.
You can only submit one probate application so it is important that it is agreed on who is submitting the application to ensure there is no duplication which will only lead to delays.
If the Executor cannot or does not wish to act, then either the remaining Executors will act (if there are any) or, if there are no other Executors, then someone else will need to apply or the Court will appoint someone.
There Is No Will
If the deceased has not left a Will, then a person will need to apply to be the administrator of the estate.
There is a certain order of people who can apply but the usual people that apply are those that:
a) Married to them;
b) In a civil partnership with them; or
c) Are their next of kin or close relative.
The steps of applying for probate are the same as if you had a Will.
However, the distribution can be more complex as you must follow the rules of intestacy rather than the deceased’s wishes with a Will.
Applying For Probate
You will need to apply for probate when someone has passed away. The only times in which you do not need to apply for probate are when:
a) When the deceased only had accounts with banks and building societies and they will release monies without grant of probate or letters of administration;
b) The deceased had jointly owned property; or
c) Assets less than £5,000 (however some banks and building societies may still request grant of probate of letters of administration even for sums less than £5,000).
It is still not quite as simple as this, if for example, the deceased gifted assets 7 years prior to their death, these are likely to be required to be disclosed and may be taxable.
You must work out what the assets in the estate are and the value of them. This will help determine whether you need to apply for probate and if indeed tax is payable.
It is important to take legal advice before taking things further to make sure that you are undertaking your duties as an Executor properly. Otherwise, you, as the Executor, will be liable for any costs and penalties.
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The information provided in this article is not intended to constitute professional advice and you should take full and comprehensive legal, accountancy or financial advice as appropriate on your individual circumstances by a fully qualified Solicitor, Accountant or Financial Advisor/Mortgage Broker before you embark on any course of action