Probate | LR Estate Planning

Thankfully, probate is not something that most people don’t have to deal with every day but because of this, most people are unfamiliar with the process and it can be daunting. On the other hand, our advisers do indeed deal with probate every day and are here to give you expert advice throughout the entire process.

The first step of probate is to register the death. If a coroner is dealing with the body, the death can only be registered after release of the body. When you have the death certificate, probate can then be applied for. The process will vary depending on how the deceased’s estate was organised or left, and whether or not there is a valid will in place. 

If a valid will is in place the executor or administrator of the will needs to apply for a ‘grant of probate’. This is a legal document which confirms that the executor has the authority to deal with the deceased person’s assets, such as property, money and belongings (the ‘estate’). That final is known as ‘administering the estate’.

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What is probate?

Probate is a legal process if you are named as an executor of a will. It involves applying to the Probate Registry for a legal document which grant authority to deal with the deceased’s estate which includes selling property, claiming on any insurance policies, closing bank accounts accounts and selling any investments.

How long does probate take?

This is dependant on the size of the estate, but the starting point is to value the assets and liabilities, after which any inheritance tax obligations can be completed. It is only once this has been done that will you be able to file the application to the probate registry. Once the grant of probate is issued, the assets can be collected, and the estate can be distributed. The probate process for estates that fall below the inheritance tax threshold can typically be completed in around two or three months but the Probate Registry service is often overwhelmed and delays are likely, so the process should be started as soon as possible.

If the estate is much larger, and the deceased had lots of assets, it could take up to six months, with the same disclaimer regarding the workload of the Probate Office.

What do I do if there is no valid will?

The rules relating to what happens to a person’s estate if they die without a will are known as the ‘rules of intestacy’. If a person dies without a will, their estate will be distributed in accordance with the intestacy laws. The role of executor will fall to the deceased’s next of kin and it will be their responsibility to apply for a grant of administration to allow them to deal with the administration of the estate. It is important to note that an unmarried partner is not recognised as next of kin. This means that they cannot deal with the administration of the estate and they are not automatically entitled to benefit from the deceased’s estate.

What are the rules of intestacy?

These can be complex and dependant on the deceased’s marital status upon death, and whether they have any children. A simple rule of thumb is as follows:
An unmarried couple – your partner is not entitled to inherit anything.
Married with no children – your spouse is entitled to inherit your entire estate.
Married with a child or children – your spouse is entitled to the first £250,000.

The remainder of the estate will be shared as follows: the husband/wife/civil partner gets an absolute interest in half of the remainder and the other half is then divided equally between any surviving children.

This is a very simple whistle-stop breakdown and the rules can vary, depending on your individual situation. This is why it is advisable to seek our expert advice.

Why should I have a reserve executor?

If your chosen executor decides that they don’t want to take on the responsibilities of administrating the deceased’s estate, we can take over the role of acting as reserve executor.

What is a grant of administration?

If the deceased dies without a will (see ‘intestate’), letters of administration will need to be obtained by the next of kin. Without this document, the next of kin will not be able to distribute the assets of the estate.

Do I need to inform the beneficiaries about the probate proses?

Not legally, but it is highly advisable that you explain to them what needs to happen before any inheritance is paid out.

Can I sell the deceased’s home?

Property that forms part of an estate can be marketed but not sold until a Grant of Probate has been made. This will not be made until any inheritance tax due has been paid.

Can I remove a bank or solicitor who is an executor?

If the testator i.e. the person who makes the will, is still alive and would like to make such a change, they could either change their will with a document known as a codicil or write a new will, naming a different executor. If the testator has already died then an executor can only be removed with the agreement of that executor or by the Courts. It is important to remember that there are benefits to appointing a professional executor, especially in complex cases.

We lived together but weren’t married or civil partners. Will I benefit from the estate?

If you weren’t married or registered as civil partners and your partner did not make a valid will including you as a beneficiary of their estate, you will not automatically inherit under intestacy laws.

What are the first things I should do if someone dies?

During this traumatic time, it can be overwhelming knowing what to do. Simply, you must:

  • Get a medical certificate from a GP or hospital doctor — you’ll need this to register the death
  • Register the death within 5 days
  • Check to see if the deceased had a funeral plan in place – this may be declared in their will or in a separate document kept with the will. If not, then you will need to arrange the funeral, which can be handled by yourself or funeral director.

How will you help me obtain probate?

We will take on the case on and refer it to one of our probate specialists. If you are writing your will, we can deal with this directly without needing to refer it.

What happens when probate is obtained?

Once the executor has been granted probate, they have official permission to deal with the estate’s assets and are allowed to collect the assets from the estate, including any money due from the sale of property, assets or belongings; pay any outstanding debts or bills; and distribute assets to beneficiaries as stipulated in the will.

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