What is probate?
Probate is a legal process that occurs after someone passes away. It involves the validation of their will (if they had one) and the distribution of their assets and property to their beneficiaries or heirs. The primary purposes of probate are to:
- Authenticate the Will: If the deceased person left a will, the probate court examines it to ensure it is legally valid. This includes verifying that the will was executed in accordance with state laws, that the person was of sound mind when creating it, and that there was no undue influence or fraud involved in its creation.
- Appoint an Executor or Personal Representative: Typically, an executor is named in the will to oversee the administration of the deceased person’s estate.
- Identify and Inventory Assets: The executor must identify all of the deceased person’s assets, such as real estate, bank accounts, investments, personal property, and debts. An inventory of these assets is created.
- Settle Debts and Taxes: During probate, the estate’s debts and taxes are addressed. This includes notifying creditors and paying off any outstanding debts, as well as filing and paying estate taxes if applicable.
- Distribute Assets: After debts and taxes are settled, the remaining assets are distributed to the beneficiaries or heirs as specified in the will (or according to state law if there is no will).
It’s important to note that the probate process can be complex, and the responsibilities can vary depending on the size and complexity of the estate, as well as laws and regulations. Executors and personal representatives often seek our help to ensure they fulfill their duties correctly.
When is probate needed?
The need for probate is determined by the size and complexity of the estate, as well as the assets and property involved. Here are some common scenarios in which probate is typically required in England and Wales:
The deceased person owned property or land solely: If the deceased owned property, real estate, or land in their sole name, probate is usually necessary to transfer ownership to the beneficiaries or heirs.
The estate’s value exceeds a certain threshold: The need for probate is often determined by the total value of the deceased person’s estate. The threshold for when probate is required is between £5,000 and £50,000. This is because different financial institutions have different rules regarding the amount of funds they will release. If the estate’s value is below this threshold, probate may not be necessary. However, the threshold and rules can change over time, so it’s essential to check the current requirements with a legal professional or the government’s official sources.
Complex estates: Even if the estate’s value is below the threshold, probate may still be necessary if the estate is complex. Complexity can arise from factors like the presence of multiple beneficiaries, disputes over the will, or the need to resolve debts and taxes.
Certain financial institutions require probate: Some banks and financial institutions may require a Grant of Probate before they release funds held in the deceased person’s accounts. This requirement can vary among institutions.
Overseas assets: If the deceased person had assets located overseas, probate may be required both in England and Wales and in the country where the assets are located.
Disputed wills: When there are disputes over the validity of the will or its contents, the probate process may be necessary to resolve these issues legally.
Whose responsibility is it to get probate?
The responsibility for handling the probate process typically falls on the executor of the deceased person’s will or the personal representative of the estate. Here’s a breakdown of their roles:
Executor: If the deceased person had a valid will, they often name an executor in the will itself. The executor is the person chosen by the deceased to carry out their wishes as specified in the will. The executor’s responsibilities include:
- Applying for Probate: The executor typically initiates the probate process by applying for a Grant of Probate from the court, which confirms their authority to manage the estate.
- Gathering and Valuing Assets: The executor identifies and collects all the assets of the deceased, including property, bank accounts, investments, personal belongings, and debts. They also have to assess the value of these assets.
- Notifying Beneficiaries and Creditors: The executor informs the beneficiaries named in the will about their entitlements and notifies creditors to settle outstanding debts.
- Paying Debts and Taxes: The executor uses the estate’s assets to pay off any outstanding debts and taxes owed by the deceased.
- Distributing Assets: After settling debts and taxes, the executor distributes the remaining assets to the beneficiaries according to the terms of the will.
Personal Representative (No Will or No Named Executor): If there is no will or the deceased person did not name an executor, the court will appoint a personal representative. The personal representative has similar responsibilities to an executor, including:
- Applying for Letters of Administration: The personal representative applies to the court for Letters of Administration, which grant them legal authority to manage the estate.
- Managing Assets and Debts: Like the executor, the personal representative identifies, values, and manages the assets and debts of the deceased person’s estate.
- Distributing Assets: After paying debts and taxes, the personal representative distributes the remaining assets to the beneficiaries according to the laws of intestacy (if there is no will) or any other legal instructions.
Both executors and personal representatives have a fiduciary duty to act in the best interests of the estate and its beneficiaries. They must follow the laws and regulations governing probate in their jurisdiction.
What if there is no Will?
If the deceased person did not leave a valid will (intestate), the estate’s distribution is governed by the laws of intestacy. In such cases, probate may be needed to appoint an administrator and ensure that the estate is distributed according to legal requirements.
Do you need probate for joint assets?
In England and Wales, whether you need probate for joint assets depends on the type of joint ownership and the specific circumstances. Joint assets can be owned in different ways, and how they are owned determines what happens to them upon the death of one of the joint owners. Here are some common scenarios:
Joint Tenancy with Right of Survivorship: When assets are held in joint tenancy with a right of survivorship, such as joint bank accounts or jointly owned property, the surviving joint owner typically becomes the sole owner of the asset upon the death of the other owner. In such cases, probate is not required for those jointly held assets, as they pass automatically to the surviving joint owner(s) outside of the probate process.
Tenancy in Common: If assets are owned as tenants in common, each owner has a distinct share of the asset, which may not necessarily pass automatically to the surviving owner(s) upon one owner’s death. In this case, the deceased person’s share of the asset may be subject to probate to determine how it should be distributed.
Jointly Owned Investments: Jointly owned stocks and shares, bonds, or other investments may have specific rules and requirements regarding the transfer of ownership upon the death of one of the owners. These rules can vary based on the type of investment and the financial institution involved. Some investments may transfer automatically to the surviving owner(s) outside of probate, while others may require probate proceedings.
Debts and Liabilities: It’s important to note that while joint assets may pass outside of probate, the deceased person’s share of any joint debts or liabilities will also typically be considered part of their estate. These debts may need to be settled through the probate process.
In summary, whether probate is needed for joint assets in England and Wales depends on the specific circumstances, the type of joint ownership, and the nature of the assets involved. Assets held in joint tenancy with a right of survivorship typically do not require probate, as they pass directly to the surviving owner(s). However, for assets held as tenants in common or those with complex ownership structures, probate may be necessary to determine the appropriate distribution. It’s advisable to consult with a professional to navigate the specific details of your situation.
Why use us for probate?
The decision to use any professional service for probate, as opposed to handling it yourself, depends on various factors and individual circumstances. Here are some reasons why people often choose to use us for probate:
Complexity of the Estate: If the deceased person’s estate is complex, with multiple assets, debts, beneficiaries, or legal issues, it can be challenging to navigate the probate process without professional guidance. Professionals have experience in handling complicated estates and can help ensure everything is done correctly.
Legal Expertise: Probate involves legal procedures and requirements. We have a deep understanding of the relevant laws and regulations and will ensure that all legal obligations are met, reducing the risk of errors or disputes.
Reducing Stress: Dealing with the loss of a loved one can be emotionally challenging. Hiring professionals to handle the probate process can relieve some of the stress and burden associated with administering the estate during a difficult time.
Time: Probate can be time-consuming, involving paperwork and communication with various parties. We are familiar with the process and can expedite it, potentially reducing delays in distributing assets to beneficiaries.
Avoiding Mistakes: Mistakes in the probate process can lead to complications, delays, or disputes. We can help prevent costly errors and ensure that the estate is administered correctly.
Beneficiary and Creditor Communication: We can handle communication with beneficiaries and creditors, addressing their concerns and ensuring proper notifications are sent.
Minimizing Tax Liabilities: We may be able to help minimise the estate’s tax liabilities through proper planning and strategy.
Legal Responsibilities: Executors and personal representatives have legal responsibilities and fiduciary duties to the estate and beneficiaries. We can provide guidance on fulfilling these responsibilities.
Peace of Mind: Many people choose to use us for probate to have peace of mind that the process is being handled correctly and in compliance with all legal requirements.
How much does it cost?
We have a flexible charging structure that we feel offers competitive options to cater for the varying degrees of complexity associated with estate administration. Our fees are fully transparent and will be disclosed and agreed with you prior to any work commencing.
Please contact one of our legal services executives to discuss your specific requirements or for further information.