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Probate Solicitors Limited - Probate & Estate Administration

Probate Explained

What is probate?

Probate is both the process of dealing with the assets of someone who has died and, in some cases, the name of the legal grant of authority issued by the court to the executor.

When someone dies all of their assets and debts held in their name have to be valued. The value of the assets, less any outstanding debts, forms what is termed their "estate". The estate must then distributed according to the wishes of the deceased at stated in their Will. If no Will exists, the estate is distributed in accordance with the intestacy laws. Unfortunately any other wishes of the deceased, however strongly they may have been expressed, are not valid unless in a Will or a formal codicil to it.

Applying for a Grant of Probate is the way in which the executors named in the Will are given the legal authority to deal with the assets. Dealing with an estate can be complex, even more so when the deceased did not leave a Will. Technically the latter is called Letters of Administration rather than Probate but the process is almost identical.

If the deceased leaves a Will:

  • the executor(s) named in the Will apply for a "grant of probate"
  • the grant is a legal document which confirms that the executor has the authority to deal with the deceased person's assets
  • if the executors have died or cannot act then a beneficiary of the Will can usually apply for a "grant of letters of administration with the Will annexed" (there are rules setting out a priority as to who can apply)

If the deceased did not leave a Will:

  • a close relative of the deceased can apply for a "grant of letters of administration"34 (there is a strict pecking order for this)
  • if the grant is made, they are known as "administrators" of the estate
  • the grant of letters of administration is a legal document which confirms that the administrator(s) have authority to deal with the deceased person's assets

Do I have to apply for a "grant"?

A grant may not be required in some situations where:

  • the person who died left less than £5,000 (or in some limited cases more depending where saved)
  • they owned everything jointly with someone else and everything passes automatically to the surviving joint owner

It is generally wise to obtain a grant in any case because this is the court's formal approval of you as the personal representative of the estate. Where there is no Will you should always consider this because technically the deceased's assets vest in the Public Trustee until a grant is made although he will not usually step in unless asked.

A grant will also usually be required when the deceased left one or more of the following:

  • stocks or shares
  • certain insurance and pension policies
  • property or land held in their own name or as "tenants in common"
  • larger sums with banks or other institutions

The bank or relevant institution will need to see the grant before transferring control of the assets. However, if the estate is relatively small some organisations may release money to you at their discretion without a grant. There is no general rule and each institution can decide in what circumstances, or over what limit, they require a grant.

If you would like to help on probate please contact us on 01564 758055

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