Probate is a process, which must be initiated when somebody dies. The aim of the process is to manage the estate left by that person.
The steps you take when somebody close to you passes away will depend on several factors, including whether or not they left a will and whether they named executors in the will.
What exactly is probate?
Probate is a legal process, which takes place when a person dies. The process aims to manage and divide up the person’s estate, ensuring that their assets are protected and given to those who are mentioned in the will. Probate is usually carried out by the executors of the will. In most cases, people name their partner, their child or a legal expert as an executor. In some cases, a will is not left, and this case, the process is slightly different.
It is possible to initiate the probate process without legal advice, and there are DIY guides out there. However, many people choose to employ a solicitor to save time and hassle at what is likely to be a very difficult and stressful time.
In Scotland, probate is sometimes referred to as confirmation.
Obtaining a grant of representation
To start the probate process, a grant of representation may be required. In some cases, notably, when there is a small estate or very little cash remaining in bank accounts, banks may release sums without a grant of representation. For larger, more valuable estates, a grant will be needed. To obtain the grant of representation, you must submit an application as the next of kin or the named executor. You can do this independently or hire a solicitor. The grant of representation will allow you legal access to the person’s assets, including their bank account. Without this approval, you’re likely to find it incredibly difficult to manage the estate and divide up the assets.
If the deceased left no property, business assets or shares, or their assets were held in a joint name, a grant of representation may not be needed, as the estate will pass directly to the spouse or partner. If you’re unsure about whether a grant of representation is required, seek legal advice or contact the bank or building society that holds the account. If you are accessing accounts and you don’t have the grant of representation, you will be asked to provide proof of death. Most commonly, this involves presenting a death certificate.
You may hear the grant of representation referred to as the grant of probate or letters of administration.
Applying for a grant of representation involves 4 steps:
- Completing an application form
- Filling in a form to calculate inheritance tax
- Submitting the application
- Taking an oath
The application is sent to the Probate Registry and will include the death certificate, the will and several copies and the inheritance tax form, as well as the probate application and the application fee. This fee is waived if the estate is worth less than £5,000.
To obtain the grant of representation, you must swear an oath, and you can do this at your local probate office or at a location of a commissioner of oaths. In the majority of cases, this involves going to a solicitor’s office. The oath confirms that you have completed the forms using information you believe to be true and accurate.
Applying for probate with a will
A will is a legal document, which outlines what you want to happen to your assets and belongings when you pass away. If a will was left, and you have been named as an executor, you must apply for the grant of representation.
If nobody who was named in the will wishes to apply for the grant of representation, you must contact the local probate registry.
Applying for probate without a will
More than 50 percent of people die without a will. If there is no will, it is common for the next of kin or a close family member to apply for the grant of representation. In this case, the individual would become the administrator of the estate. It is possible to apply to be an administrator if you were married or in a civil partnership when the person died, but you cannot apply if you were not together at the time of marriage. In this case, a child over the age of 18 or a parent may apply.
The next step
When the grant for representation has been approved, the executor will send the relevant paperwork to the banks, building societies and other organisations holding money or other assets. The assets will be released and transferred into the temporary ownership of the will executor. Once this has been completed, the executor must pay off any outstanding debts, including inheritance tax and any bills that were outstanding at the time of death. As the executor, you may use any money left in the will to cover the cost of legal fees linked to the probate process.
Once you have covered costs, you can start to distribute the assets in line with the deceased’s wishes or by law if no will was left. If there was a will, assets must be divided and distributed in accordance with what is written in the will.
If there was no will, the law has the responsibility of deciding what happens to the estate.
What happens to joint assets?
Assets that were owned outright by the deceased will be distributed according to the will or the law if no will was made. Joint assets, such as money held in a joint bank account, will automatically pass to the other account owner. However, money held in this account should be included in inheritance tax calculations.
If the deceased owned property, it will be distributed according to ownership. If a property was owned by the person and a partner, ownership will pass directly to the partner. If more than two people were involved, known as common tenancy, the deceased’s share will pass to another owner or a different individual as specified in the will. If the individual owned the property outright, it will pass to the beneficiary or beneficiaries listed in the will. If no will is available, the law will decide what happens to the property.
Writing a will
Writing a will gives you the opportunity to outline what you want to happen to your money and anything else you own when you die. If you have children under the age of 18, you should also specify who you want to take over guardianship. In your will, you can also specify an executor and provide information about what you want to happen to your assets if any of the beneficiaries listed die before you. If you don’t have a will, the law will decide what happens to your estate. Some people also choose to provide details about the kind of funeral they would like in their will.
Sometimes, making a will is straightforward. If you have a spouse or civil partner, you have a small family, and you don’t own an array of properties or businesses, you may know exactly what you want to happen to your estate. If things are more complex, for example, you have step-children, you own businesses or properties with other people, you have properties overseas, or you have a large family, you may wish to seek legal advice when putting your will together.
To ensure that your will is legally binding, it must be signed by two witnesses, both of whom must be aged over 18. It is not possible to include those witnesses, or their spouses, in your will as beneficiaries.
Reading the will
It is the responsibility of the executor of the will to read the will and inform beneficiaries of their entitlements. In the vast majority of cases, beneficiaries will be known to the executor or other beneficiaries listed in the will. However, occasionally, it may be difficult for the executor to track down a missing beneficiary when no contact details are included, or the details provided are out of date. In this case, using a probate tracing service or Beneficiary tracing service like www.findukpeople.com may be an option worth considering. If you are a beneficiary, it is important to remember that probate can take several months so you may have to wait a long time until you receive what has been left to you.
If you are a named beneficiary, you do have the right to appeal or challenge the will. However, this is likely to result in delays to the probate process.
How long does probate take?
It’s very difficult to put an exact timeframe on a legal process like probate. There are many factors that can affect the duration of the process, and some cases are a lot more straightforward than others. If a will was left, the estate was relatively low value and simple, and there are no disputes among beneficiaries or executors, it may only take around 6 months. However, if there are disputes, the estate is more complex (for example, it contains multiple accounts, shares, business ownership and land) and no will was left, the process may take longer. It has been known for probate to take years before.
How can I get help?
When you’ve just suffered a bereavement, the last thing you want to do is start worrying about legal documents. If you’ve lost somebody close to you, you’ll be grieving, and you may not want the additional hassle of having to complete forms, gather information and make endless calls. It is possible to navigate your way through the probate process without assistance from a solicitor, and there are people out there who can help you if you do have questions. The other option is to find a solicitor to take care of probate for you. This will eliminate stress and save you time, but there will be a significant fee involved. If you are thinking of hiring a solicitor, it’s a good idea to shop around and to look for a firm that specialises in wills, probate, and inheritance.
Information about intestacy
Intestacy is the name given to the scenario when somebody dies without leaving a will. Some organisations estimate that the proportion of people who have a will is as low as 30 percent, so intestacy is fairly common. If you don’t have a will and you pass away, control of your estate passes to the law, and it will be distributed according to the laws of intestate.
Intestate regulations state that the estate will be distributed to surviving family members in a specific order. If the deceased has a surviving spouse or civil partner, the entire estate will pass to them, provided that it is worth less than £250,000. If there is no surviving spouse, the estate will pass to the next highest ranking relative, which is surviving children. Parents, siblings, grandparents and uncles and aunties complete the list. If the value of the estate exceeds £250,000, the surviving spouse will inherit £250,000, and the rest of the estate will be divided between other surviving relatives.
In rare cases, where the individual has no surviving relatives, the entire estate will pass to the crown. This is known as bono vacantia. Only certain relatives are included in intestacy rules. Cohabiting partners, ex-partners, and step-children are not entitled to inheritance under intestacy laws.
Probate is a complex process, which many people are unaware of. When somebody dies, it is necessary to obtain permission to access their assets before they can be distributed according to instructions outlined in the will. This responsibility falls to the executor of the will. It is possible for a partner, a child or a sibling to be the executor, but some people choose to appoint a solicitor. To complete the process of probate, the executor must submit forms and proof of death in addition to ensuring that inheritance tax is paid and beneficiaries are made aware of their inclusion in the will. Probate processes vary in complexity, and this can influence the timeframe, especially if you’re trying to navigate the way yourself. If at any point, you find the process too much, it’s wise to seek advice from a solicitor.