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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.