What is Probate?
Probate is a process that gives the people carrying out your Will, your Executors the right to deal with your assets and property. It acts as proof that your executors have the legal authority they need to administer your estate.
GRANT OF PROBATE LETTERS OF ADMINSTRATION
A grant of probate is a document sealed by the Court which legally authorises a person who has been appointed under the terms of the Will to collect in and thereafter distribute the deceased's assets in the way that the deceased intended and outlined in the terms of the Will. Authority is vested in the executor directly from the Will and provided that the executor abides by the testators wishes, your wishes, there is little that can be done to usurp the executor’s position. However, if the executor fails in his duty then an application can be made to the Court for dismissal and the appointment of others to carry out this work.
The Will may specifically give the executor very wide powers and often makes the executor a trustee of the estate with great discretion relating to distribution the assets. Any or all persons mentioned as executors in the Will may make application for the grant of probate and the court will usually insist that all parties jointly share the position unless some positively decline. The Court does not pick and chose, it respects the Testators wishes; your wishes.
In order to apply for a grant of probate it is necessary for an application to be completed and filed with the court together with a copy of the original Will and a tax document which outlines the overall assets of the estates and places an approximate value on the estate. The executor then attends the court to swear an affidavit and then the Court seals a document that appoints the executor or executors giving them full power to deal with the estate in accordance with the terms of the Will.
If there is no Will then there are no executors and no grant of probate as executors are only appointed by a Will. In this case the court will grant ‘letters of administration’ to an interested party who is almost always a relative with a potential beneficial interest. That person will then carry out very similar duties to an executor and will collect in and distribute the estate in accordance with statute which sets down a list of those relatives and their priority who may inherit from a deceased person who dies intestate, that is with no Will. If there are no relatives who satisfy the requirements of the statute then the assets are forfeited and are claimed by the government.
SOME EXAMPLES OF A PERSON DYING INTESTATE (NO WILL)
BRIEF: Married with children, estate worth more than £125,000.00.
- Surviving spouse gets personal effects, first £125,000.00 and a life interest in half the reminder.
- The children or their children get the rest.
PROBLEM:
- The children or grandchildren monies would be overseen by the Court.
- If the children or grandchildren attain the age of 18 years or are over 18 they can demand their monies from the estate. The surviving spouse may have to sell the family home to settle the debt.
- With a Will a normal time scale would be a minimum of 6 weeks, Without a Will a minimum time scale would be 2 years.
SOLUTION: MAKE YOUR WILL NOW
BRIEF: Married, no children, no parents.
- Surviving spouse gets personal effects, first £200,000.00 plus half the remainder.
- Deceased's brothers and sisters or their children get the rest.
PROBLEM
- The brothers and sisters, assuming over 18 years old, may want their monies now; and would be advised by their solicitors to get it now. The surviving spouse may have to downsize their home to settle the debt.
- With a Will a normal time scale would be a minimum of 6 weeks, Without a Will a minimum time scale would be 2 years.
SOLUTION: MAKE YOUR WILL NOW
BRIEF: Single, co-habiting with children.
- Deceased's partner not recognised in law.
- Total estate shared equally amongst deceased’s children of this relationship and all of the deceased’s earlier children; or their issue in both situations.
PROBLEM:
- Surviving partner receives nothing and may be homeless and penniless.
- Total estate, assuming children less than 18 years of age, administered by Courts.
- With a Will a normal time scale would be a minimum of 6 weeks, Without a Will a minimum time scale would be 2 years.
SOLUTION: MAKE YOUR WILL NOW
BRIEF: Single, co-habiting no children
- Deceased's partner not recognised in law.
- Total estate goes to deceased's parents, or if they have died, to the deceased’s brothers and sisters, or if none to the deceased’s uncles and aunts, if none to the Government funds.
PROBLEM
- Surviving partner receives nothing and may be homeless and penniless.
SOLUTION: MAKE YOUR WILL NOW