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Wednesday July 15, 2020
Losing someone close to you is never easy, and on top of dealing with your grief you may become responsible for managing their property, money and other possessions (assets).
All name/s the deceased has chosen to be an executor of the will, responsible for their assets, will be documented in their will.
The process of organising and distributing any assets in-line with your legal duties is known as probate.
Probate is a legal document that will give the executors of the will the relevant authority to deal with the assets and carry out the wishes of the loved one who has sadly passed.
If you are the executor of the will, this could also be more than one person, you will be responsible for handling the probate process.
Essentially, before you sell the property you will need probate. And, if you need to divide any assets it’s likely you will need to apply for probate. Once you have received the grant of probate, you will have the legal authority to take the actions specified in the person’s will.
Executors could then, for example; close bank accounts, sell the deceased property, sell shares, transfer the property to the beneficiaries, or close investment accounts.
So, how do you go about doing this? Don’t worry, we’re here to help you understand this further, and will outline the steps to take as we move through the guide.
It’s also worth noting that if you live in Scotland probate is recognised as ‘confirmation’.
The process of Probate can vary from case to case, because every will and assets are different. It can also be made much easier with the help from a probate solicitor, such as ourselves, to assist any executor of the will with the probate process.
Typically, the process can involve;
Where a will is not in place the Intestacy Rules will provide the guidance on what is required.
In some instances probate isn’t required, however this is extremely varied across circumstances and asset holders requirements.
Meaning, in general there’s no clear guidelines as to when probate is required, some organisations will release funds or assets without probate depending upon the criteria.
Here’s a few examples to explain according to the different scenarios;
If there is a house in the deceased name then probate is required to give the executors of the will the authority to sign the contract and sell the property to the new buyers.
If there is a bank account with a small amount then probate may not be required even though there is a will in place.
If the assets include joint bank accounts with the spouse – and then one individual account the bank/building society may insist on probate before they will close the account.
If there’s an investment bond within the assets again they may insist on probate being obtained before the bond can be sold or transferred.
A home that is jointly owned can become tricky. Essentially, there are two different ways of jointly owning a home. These are beneficial joint tenancies and tenancies in common.
If the partners were beneficial joint tenants at the time of the death, the surviving partner will automatically inherit the other partner’s share of the property. There is no need for probate or letters of administration unless there are other assets that are not jointly owned.
However, if the partners are tenants in common, the surviving partner does not automatically inherit the other person’s share. Probate, or letters of administration, will be needed so the personal representative can pass it to whoever will inherit the share of the property, according to the will or the rules of intestacy.
Ultimately, banks and other relevant organisations will set out their own rules as to when probate is or isn’t required. Depending on the circumstances, it may be worth checking if a grant of probate is required before proceeding with your application.
We’ve already mentioned a grant of probate, but a simple definition of it is the legal document which grants the executor of a will permission to manage and distribute the assets left by the deceased.
Where tax is payable, the Inheritance Tax (IHT) return is completed and is lodged with HMRC. If no IHT is payable, the tax return IHT205 is sent directly to the chosen probate registry with the statement of truth. When it has been signed by the executors or the administrators (collectively known as Personal Representatives or ‘PRs’).
The statement of truth is the document by which the PR’s formally apply for the grant of representation and promise to collect in all the deceased’s assets, pay any debts and distribute the estate in accordance with the terms of the will.
To gain the grant of probate it can take anywhere between 2-12 weeks. This just depends on how quickly the Probate Office can review and process applications.
The whole probate process from a solicitor taking instructions to assisting with finalising a case can take anything between 12 weeks and 2 years depending on the value, size and complexity of the estate and assets.
Unfortunately there’s no set cost to probate due to its varying nature. Each will and assets owned are different from case to case.
What we can tell you is that the probate court fees are £155, plus £1.50 for each copy.
Other costs, including solicitors fee can also vary between businesses, however we take pride in ensuring that all costs, advice and support are communicated and acted upon in a timely manner to ensure a swift and cost effective approach to probate.
We understand probate takes place during a sensitive time and can cause significant headache and strain which can quickly become an unwelcome task.
Our experienced and sympathetic probate solicitors can assist you with the entire probate process, from the registration of the death, preparation of inheritance tax accounts, wills and trusts.
The executor/s that are named in the will are responsible for applying for probate.
If a person has died and not left a will, but there are assets such as bank accounts and a house to be dealt with, a letter of administration will be needed.
It is usually a spouse or civil partner that will apply for a letter of administration which will grant them the legal authority to manage the estate and assets.
If the deceased has a will the named executors would often require a grant of probate in order to manage the assets.
However, if the deceased does not have a will, a grant of letters of administration is applied for and the person responsible would be an administrator rather than an executor.
You can change a valid will, but you can only make changes to the share of the inheritance that it has given you.
For example, you could:
To make any of these changes you will need to apply for a document called a deed of variation, or a deed of family arrangement. In order to do this there are certain rules and it can be a little complicated, so involving a solicitor would be advisable.
A beneficiary is someone who will receive something from the deceased’s will.
The executors of a will have a legal duty of care to the beneficiaries to ensure they deal with the estate properly. They are also responsible for obtaining the best price for the property if there is a sale involved.
The executors could be held responsible should they be seen to be delaying dealing with the estate and as a result the assets drop in value. Beneficiaries can take legal action against an executor if they breach these rights or if the executor is otherwise mismanaging the estate.
Yes, you can challenge or contest a will, if you strongly believe it doesn’t accurately represent the deceased intentions of their assets, or if you believe it is invalid for other reasons.
You can contest a will if:
Our dispute resolution team of solicitors can support any legal disputes of this nature. Find out more here.
A personal representative is simply another term for the executor, where there is a will, or administrator, where there is not a will.
Honestly, you don’t. Some people do obtain probate without a solicitor, however with a high, legal, level of responsibility a solicitor is advisable.
Remember, if anything does begin to be disputed the beneficiaries can take legal action against the executor or administrator.
Any payments required for solicitors can be made from the assets, the executor is not personally liable.