What is Probate?

Lawyers refer to ‘the probate’ of a loved one and often make assumptions that everyone knows what probate is. That certainly isn’t the case but sometimes, after the death of a loved one or relative, you are too upset or embarrassed to ask questions about probate and what it involves. In this blog we look at what probate is, what it involves and answer your questions about probate.

What is Probate?

Probate is the name of the legal process that may have to be undertaken when a person passes away to legally enable the deceased person’s assets , property and belongings to be sold or transferred in accordance with the Will or, if the deceased left no Will, under intestacy rules.

The word ‘probate’ is a legal term, like conveyancing for the legal work connected with a house sale or purchase. It is just a historic word for sorting out the legal paperwork after the death of the deceased.

Do you always need to get probate?

Not every estate needs to go through probate. It is a blessing if an estate does not have to go through probate as it saves the relatives and beneficiaries time and money if the estate of the deceased does not have to go through probate.

If you are uncertain if an estate will need to go to probate it is best to ask a Cheshire Probate solicitor who will be able, with a bit of information about the size and contents of the estate, to be able to tell you if probate is needed and, if so, how long it is likely to take and cost in legal fees.

Does an estate have to go through probate if there is a Will?

An estate doesn’t necessarily have to go through probate if there is a Will. That is because probate doesn’t depend on whether the deceased left a Will or died without a Will (intestate) but on the size of the estate and the type of assets it contains. That is why it is best to get specialist help so the estate doesn’t spend unnecessary money on probate if it isn’t needed.

What happens during probate?

If you are told that your loved one or your relative’s estate needs to go through probate then it is difficult to understand what takes the time unless you know what probate involves.

Probate is the technical term for the legal process of sorting out the property, money, possessions (called the estate) and the financial affairs of the person who has died.

If the deceased died without leaving a Will then ‘letters of administration’ are needed before the estate can be disposed of in accordance with intestacy rules.

If the deceased died leaving a valid Will then a ‘ grant of probate ‘ is needed before the estate can be distributed to the beneficiaries in accordance with the terms of the Will.

Once the letters of administration or grant of probate is obtained then the next of kin or the executors of the Will have the legal authority to sell or transfer the assets in the estate, either according to intestacy rules or the provisions in the Will.

Step by step guide to probate

If you are the next of kin or the executor of a Will it can be frustrating to think that ‘nothing is happening’ but probate takes time because it involves:

• Identifying the deceased’s assets and liabilities. How difficult this is depends on the paperwork left by the deceased and the nature of their estate and any liabilities. This is the first step to see if probate is needed and to determine the value of their Estate
• Checking if the deceased died intestate or with a valid Will and identifying the relevant next of kin under the intestacy rules or beneficiaries under the Will
• Calculating the value of the estate and seeing whether any inheritance tax is payable to HMRC. A tax return has to be completed
• Applying to the probate registry for the letters of administration or grant of probate
• Once the documents are provided by the probate registry paying off any debts and liabilities from cash left by the deceased or selling assets to pay any debts that the deceased had at the time of his or her death and, where necessary, paying any inheritance tax payable on the estate to HMRC
• Preparing estate accounts to record the assets in the estate (including cash movements from the date of death of the deceased) to show what assets have been sold and what liabilities and debts paid. These accounts are approved by either the executors of the Will or, in the case of an intestacy, by the deceased’s next of kin
• Checking to make sure that there are no challenges to the Will or claims against the estate and , if not, arranging for the balance of the estate to be distributed to the next of kin entitled to the estate under intestacy rules or the beneficiaries under the Will. This can involve the sale or transfer of the family home or an investment portfolio. If the estate is large or complex then sometimes interim distributions are made until the estate can finally be sorted out and any final dispositions made to the next of kin or beneficiaries.

Do you need a probate solicitor to get probate?

You don’t have to use a probate solicitor to secure probate. The choice is yours. However, the size and the complexity of the estate might make it best to instruct a probate solicitor. For example, if there is likely to be inheritance tax payable or capital gains tax. Other scenarios that would justify using a probate solicitor to secure probate for the estate include:

• The next of kin in an intestacy or the executors of a Will don’t get on very well with one another or there are ‘trust issues’
• One of the next of kin or the beneficiaries is very keen for the estate to be distributed very quickly and you don’t have the time to sort out the estate as quickly as they would wish
• There is the potential for the Will to be challenged, either by someone saying that the Will isn’t valid or that the deceased didn’t leave reasonable financial provision for a family member or dependant out of their estate. Claims can also be made against an estate if the deceased died without leaving a Will and a close family member or dependent says that the intestacy provision doesn’t make reasonable financial provision for them
• Protecting the executors from personal liabilities arising from acting as the executor of a Will. For example, protection from tax liabilities
• The complexity of the estate, for example does the estate include a family business or should a deed of variation be completed to minimise inheritance tax payable on the estate?

There are other reasons why you may want or need to use a probate solicitor and that is why it is best to talk to a probate solicitor about what getting probate involves and the costs and timescales before making a decision about whether to apply for probate without a solicitor.

Cheshire probate solicitors

If you have questions about probate or need advice on getting probate please call Chris Strogen at Evolve Family Law for a quote. Call or contact us online. Appointments are available in Holmes Chapel Cheshire or Manchester or by video conference, Skype or telephone appointment.