02 Nov Probate explained
When someone passes away the proceeds of their estate needs to be distributed appropriately. The granting of legal permission to act on behalf of the deceased is called Grant of Probate and it is best if the application for probate takes place within 12 months of the person’s death.
As in all legal matters, using the correct terminology is vitally important and you will often find probate also being described as, ‘grant of representation’, ‘grant of probate’, ‘letters of administration’ and ‘letters of administration’.
When someone passes away the Grant of Probate allows the distribution of the deceased’s assets appropriately. Their estate consists of:-
• other financial assets
These may be held in the UK or overseas.
There are costs involved in applying for probate. These costs depend upon at the size of the estate and where in the United Kingdom the deceased resided. (England, Scotland, Northern Ireland or Wales)
Allocating the deceased’s estate
The precise procedure used to allocate an estate depends upon whether they died and left a will or died intestate, leaving no will.
For many different reasons people die without having made a will. If the deceased died intestate (leaving no will) the courts will distribute the deceased’s assets according to the rules of intestacy. Complications occur when the courts distributes an estate in a way that is considered inappropriate by the surviving family members. Such matters can be complex to resolve and someone professionally qualified in the rules and regulations around probate, such as a Probate Specialist, will be able to advise.
If there is a will, the person that the deceased named as the executor of the will is responsible for applying for a Grant of Probate and for distributing the deceased’s assets as laid down in their will.
The role of the executor is an important one. The executor is responsible for paying any inheritance tax due, selling any property the deceased owned and distributing the proceeds of the sale of property, collecting any other monies owed to the deceased and settling any debts either business or otherwise.
It may be more appropriate for individuals who need to apply for a grant of representation, known as probate, to use a probate specialist rather than a solicitor in many and possibly most cases.
When probate may not be necessary
There are circumstances when probate may not be necessary.
If there is a surviving spouse or civil partner and assets were held in joint names, such as a joint bank account, or if the deceased’s assets do not include land or property then it may the case that probate will not be necessary. The banks and financial institutions are still entitled to ask for the death certificate after the death has been registered and it may be that an individual institution insists on a grant of probate.
As stated above, a legally trained specialist, such as a Probate Specialist, will be able to advise. Here at IWC, we are able to provide this advice, free of charge.