What is Probate and why do I need it?

When a loved one dies dealing with their affairs is rarely easy.  Many find that there is an abundance of phrases, terms, rules and laws that govern how to deal with those affairs.  Perhaps the most baffling is the term ‘Probate’ and the various rules and procedures that go with it.  Get it wrong and the consequences can be severe.  Thankfully advice is on hand.

What is Probate?

Usually when people refer to Probate they mean the process of dealing with the deceased’s assets.  This can mean selling their home, investments and personal effects and closing their bank accounts.  It can also mean transferring those assets into the names of the beneficiaries.  In either case, there are procedures to deal with those assets and those rules are commonly referred to as Probate.

How do I deal with Probate?

If the deceased made a Will, they will have named an executor and this is the person responsible for dealing with the estate.  In order to sell or transfer those assets the executor will need to obtain a Grant of Probate from the Probate Registry.   To obtain Probate the executor needs to establish the size and extent of the estate, settle any Inheritance Tax liability and submit an application to the Probate Registry.  It is important to provide accurate information and a Solicitor will be able to help you get the ‘right’ information in a timely manner.

Once Probate is granted the executor has the authority to sell the house or put the title deeds into the names of the beneficiaries, close the bank accounts and deal with the shares.  They will also need to settle any outstanding debts, loans or credit cards before they distribute the estate to the beneficiaries.

What if the deceased died without a Will?

For those that die without a Will there are a separate set of rules known as the Intestacy Rules. These Rules determine who is entitled to deal with the estate.  The equivalent of an executor in these circumstances is known as ‘an administrator’.  An administrator will need to obtain a different type of grant known as ‘Letters of Administration’.  Please see our article ‘What happens if you die without making a Will? ’ for further details.

Do I need Probate?

In some cases where the deceased has a modest size estate banks, building societies etc., have procedures to release monies without needing to see the Probate.  If the deceased owned a property/land Probate will always be required.  Probate should also be obtained if the deceased’s Will is likely to be challenged.  Once Probate is granted there are certain time limits for a person to bring a claim.

Do I need legal advice?

It is possible to deal with Probate yourself.   Great care needs to be taken, as there are a number of rules that effect the distribution of a deceased’s assets.  For example an executor ought to consider a Trustee Act notice to establish the extent of the deceased’s debts.  If a notice is not sought then a creditor can make an executor personally responsible for repayment of the amount that is due.  Getting legal advice from the outset, can allay any problems further down the line.

At Donnelly & Elliott we recognise that different estates require a different level of legal advice.  For Probate clients we offer a range of services and no obligation initial consultations. For your consultation please call our team on 02392 505 500.

As part of their commitment to excellence in this field, Donnelly and Elliott Solicitors are proud to be accredited members of the Law Society’s Wills & Inheritance Quality Scheme

Roz Wyeth is a member of the Society of Trust & Estate Practitioners and a full accredited member of Solicitors for the Elderly.