Knowing where to start and understanding the technical terms can feel overwhelming when you have suffered a bereavement and you are the executor of a Will. You, or the probate solicitor you appoint, may need to apply for a grant of probate as the first stage in the probate process.
What is probate?
The legal process of administering the estate of a deceased person is referred to as ‘probate’. The term includes gathering assets in, paying any debts and then distributing the deceased’s estate in accordance with their Will. If the deceased did not make a Will their estate must be distributed in line with intestacy rules.
Who deals with probate?
It is the job of the executor(s) named in the Will to deal with probate but often executors do not carry out probate work personally. They either work with a solicitor jointly appointed as an executor with them or, if there is no professional executor appointed in the Will, ask a probate lawyer to sort out probate on their behalf. The solicitor is paid by the estate but the executor(s) has overall control in accordance with the wishes of the person who made the Will.
What if there is no Will?
The task of sorting out probate is different if the deceased did not make a Will. If there is no Will and the deceased died intestate an administrator is appointed. The administrator like an executor can ask a probate solicitor to deal with the administration of the estate on their behalf.
Is probate always required?
If the value of an estate is very modest, probate may not be necessary. Whether probate is needed depends on the value of the estate rather than the terms of the Will. Even if a Will leaves the entire estate to a husband or wife, probate may be necessary. A probate solicitor can tell you if a grant of probate is needed as without it you will not be able to legally administer the estate and sell or transfer assets.
How do you apply for probate?
An executor or the probate solicitor applies for a grant of probate to give the executor of the Will the legal authority to act and to gather in the estate and distribute it in accordance with the Will.
An outline of the probate process is:
- The executor finds out about the assets in the estate and any debts.
- The grant of representation is applied for.
- The inheritance tax form is completed. If required, the inheritance tax can be paid.
- Grant of probate is obtained and the assets are gathered in. This may involve the sale of investments or property. Once the assets are gathered then any debts owed by the estate can be paid.
- The estate is distributed in accordance with the Will or in line with intestacy rules.
- Estate accounts are prepared to show the monies and assets received, debts and taxes paid and the estate distribution.
Do you need help with probate?
Sometimes executors are comfortable applying for probate but many executors prefer to get help from a probate solicitor because:
- The executors are busy or they do not want the stress or hassle of the probate process.
- The beneficiaries are anxious that the estate is distributed quickly.
- The estate needs to pay inheritance tax and issues such as lifetime gifts or deeds of variation should be considered.
- The executor does not want to bear responsibility for not gathering in the estate, paying off debts or distributing it correctly.
The validity of the Will may be challenged or there is risk that a dependent may bring a claim against the estate.
Probate and Estate Planning Lawyers, Bournemouth
If you need help with a grant of probate our specialist and approachable probate solicitors are here to guide you through the process.