In simple terms, Probate is the legal process of dealing with a person’s estate after they have died. This usually involves collecting in their assets, paying any debts or liabilities, and then distributing what remains to the people entitled to inherit.
Where a valid Will exists, Probate is often the process by which the Executors named in the Will obtain authority to administer the estate. The formal document issued is known as a Grant of Probate.
If there is no Will, or no valid Executors able to act, a similar process applies called Letters of Administration. In that case, the person dealing with the estate is known as an Administrator rather than an Executor.
Probate is therefore the formal legal mechanism that enables property, money and possessions to be transferred following death.
Is Probate Always Required?
Not in every case.
Some smaller estates may be dealt with without a formal Grant, depending on the nature and value of the assets involved and the requirements of banks or financial institutions.
Likewise, assets held jointly may pass automatically to the surviving joint owner outside of Probate. For example, many jointly owned bank accounts or property held as joint tenants can transfer automatically on death.
However, where a person owned assets in their sole name, Probate is commonly required before those assets can be sold, closed, transferred or distributed.
What Does the Probate Process Usually Involve?
The Probate process will often include the following stages:
- Identifying the deceased’s assets and liabilities
- Valuing the estate as at the date of death
- Establishing whether Inheritance Tax is payable
- Preparing the necessary Probate application
- Applying for the Grant of Probate or Letters of Administration
- Collecting in monies and assets
- Paying debts, taxes and expenses
- Distributing the estate to beneficiaries
Every estate is different and some are straightforward, while others can involve property sales, business interests, overseas assets or disputes.
How Long Does Probate Take?
There is no single answer, as timescales vary depending on the complexity of the estate and how quickly third parties respond.
A straightforward estate may be concluded within a number of months. More complex estates can take significantly longer, particularly where there are property sales, tax issues or complications between beneficiaries.
It is generally sensible for Executors to proceed carefully and correctly rather than rush administration.
What Happens if There is a Will?
Where there is a valid Will, the Executors appointed in the Will are usually responsible for administering the estate.
Their duties can include:
- registering the death
- securing property and assets
- obtaining valuations
- applying for Probate
- settling liabilities
- distributing the estate in accordance with the Will
Executors hold a position of trust and should act properly, fairly and in the best interests of the estate.
What Happens if There is No Will?
If someone dies without a valid Will, they are said to have died intestate.
In those circumstances, the estate is distributed under the rules of intestacy rather than according to personal wishes. This can sometimes produce outcomes that the deceased may not have intended.
For that reason, having a professionally prepared Will is usually advisable.
Can Probate Be Avoided?
In some circumstances, certain assets may pass outside Probate.
Examples can include:
- jointly owned assets passing automatically to the survivor
- nominated pension or death benefit arrangements
- assets already placed into certain trust structures during lifetime
- low-value accounts released by institutions without a Grant
However, many estates will still require Probate for at least part of the administration.
Why Proper Estate Planning Matters
Probate itself is a normal legal process, but delays and difficulties often arise where affairs are not properly organised during lifetime.
Good estate planning can help by:
- ensuring there is a valid Will
- choosing suitable Executors
- organising ownership of assets efficiently
- considering trusts where appropriate
- reducing uncertainty for family members
- helping administration proceed more smoothly
What is Therefore Advisable?
Every case will have different circumstances. Some people simply need a clear, professionally drafted Will. Others may benefit from wider estate planning involving trusts, tax planning or asset protection measures.
What is important is having a plan in place.
As we know, there is no certainty of longevity with living. Ensuring that your affairs are in order can greatly reduce stress and difficulty for those left behind.
For further information regarding Wills, Probate and Estate Planning, please contact us for an initial discussion.
