Probate Explained: The Legal Steps to Distributing an Estate
Probate isn’t something most of us will ever have to deal with until a loved one passes away.
The basic definition is that probate refers to:
- The legal steps necessary to prove the validity of a will, if there is one.
- Establishing who has the authority to deal with the estate.
- Administering the estate to distribute assets to the appropriate parties.
Managing the probate process can be emotionally charged and put added stress on families coping with grief and bereavement.
Yet understanding how probate works and the legal mechanisms at play remains crucial to ensure that your loved one’s wishes are respected, debts are repaid, Inheritance Tax bills are settled, and the deceased’s wealth reaches their designated parties.
This guide from The Law Firm Group seeks to clarify some of the commonly asked questions about probate and navigating this most complex of processes.
How to Apply for Probate
No matter your relationship or close connection to a person that has died, you don’t automatically have the legal right to decide what happens to their assets.
The first step is to apply for a Grant of Probate, depending on whether you are eligible.
If there is a will, then the nominated executors can apply, and if not, the applicant should be the closest relative.
One of the contributing factors in that decision is whether there is an Inheritance Tax liability to pay, which the executor will establish.
Probate isn’t required if:
- The individual’s assets were jointly owned – because, in this scenario, they pass to the remaining joint owner.
- The only asset to consider is savings.
It is essential to work out the estate’s value and identify whether Inheritance Tax applies before looking to obtain probate. You can then apply online or via a postal application.
There are multiple complications here, and we’d strongly advise seeking support from an accomplished family law specialist with experience in managing probate.
For example, determining the tax liability in itself can be complex, and there is a 20 working day breaker between sending the tax forms to HMRC and being allowed to apply.
You can potentially apply for probate without a solicitor, but we’d never suggest this as a viable strategy.
Legal advice is the least you’ll need, given the potential for things to go wrong or for mistakes to be made that might mitigate your control over the estate of a recently deceased family member.
Every application must be supported with comprehensive documentation, and the process of compiling a legally valid personal history to prove your connection with the deceased can be too much pressure for most.
Applying for Probate Without a Will
Constructing a will is, of course, an action we’d suggest as valuable for anybody of any age.
Still, when a family member or partner passes away without one, it throws an extra proverbial spanner into the works.
You can apply for a Letter of Administration if any of the below applies:
- The deceased did not have a will.
- A will left is considered invalid.
- There is a will but without a corresponding executor.
The complication is that close relatives don’t have free reign to distribute assets as they wish and instead need to refer to the intestacy rules.
Essentially, that means the estate will be shared according to pre-set legal statutes, regardless of the instructions left in a will that isn’t valid.
This area is multi-faceted and depends on the deceased’s marital status, whether they have children or grandchildren, and many other elements.
You have the right to make a claim if you were in a long-term cohabitation situation for over two years but need to prove financial dependency, which is often a long and delicate process without a guarantee of success.
What to Do After a Grant of Probate
If you do achieve a Grant of Probate, usually with guidance from a skilled legal representative, the next stage is to consider the wishes of the deceased, which in itself can be challenging.
The steps include:
- Collecting assets from banks, estate agents, savings accounts, pension schemes and building societies by distributing a copy of the Grant of Probate.
- Repaying outstanding debts, including mortgage payments, online accounts, property utilities and tax accounts.
- Recording how you will share the estate among beneficiaries (or estate accounts), which must, in turn, be formally signed by the executor.
- Actioning those distributions following the instructions in the will. If you’re bound by intestacy rules, this law will dictate how you share the assets.
As we’ve explained, there is a great deal of grief involved with each of these actions, so we suggest having a solicitor manage correspondence and recoup assets on your behalf.
Deviations from probate law can cause severe issues, so it is vital you work through the process carefully and with ongoing advice.
What Happens if I Need to Contest a Will?
Contesting a will requires you to remain calm, controlled and with a clear justification for the appeal. Hiring a solicitor is usually the optimal strategy to represent your interests.
Estate disputes can be lengthy, costly, emotionally charged, and it is significantly more difficult to progress a challenge after funds or assets have been distributed.
Timescales vary, but some grounds for a contested will dictate that you must act within six months. Unlimited challenges are acceptable in situations such as fraud.
It may be difficult to decide whether to contest a will, which can create rifts between family and friends, so mediation or negotiation may be preferable courses of action to reach an equitable agreement.
The probate lawyers at The Law Firm Group are always on hand to deliver further advice and tailored recommendations based on your specific situation.
If you’re concerned about obtaining a Grant of Probate, aren’t sure how to manage a will, or need diligent oversight to ensure you submit a legal challenge correctly, our expert team can help.
Please get in touch for an informal discussion or to book a consultation to start work on building a bespoke plan to manage the probate process from start to finish effectively