What is Probate?
Probate is the term for the legal process required to be able to deal with someone’s property, money and possessions after their death. A persons property, money and possessions is also known as their estate.
If the person has written a Will naming executor(s), the executors apply for a grant of probate.
What is an Executor?
Executors – Those named Executor(s) of the Will are entitled to administer the estate.
What if there is only one Executor?
If there is only one named, they can decide to apply for probate and administer the estate or to appoint a legal professional to carry this out.
What if there are more than one Executor?
If there is more than one named executor who is living and who has mental capacity, an agreement must be reached on how the estate is to be dealt with. Being named as an executor does not compel them to administer the estate and there is a legal mechanism for anyone not wishing to carry out this responsibility.
The need for probate is determined by the asset holders. Asset Holders are the organisations who hold the accounts and investments of the person who died. They can require the executoror the administrator(the person taking responsibility when there is no Will) to obtain probate if the value of the estate is more than £5,000. Many financial institutions often set thresholds higher than this. Probate is also required when a property is to be transferred from one owner to another or is to be sold.
How long can the Probate process last?
The Probate process can take from a few months up to a year. Typically the process takes between 6 to 9 months. More complicated estates can take years to be resolved.
The timing of the probate process is often affected by the third parties involved (e.g. Financial services, Department of Work and Pensions and probate court.
Who may be involved in the Probate process?
Solicitors – This may be independent practitioners or partners of larger legal practices with specialist probate departments.
Probate Companies – Also known as Trust corporations, employ legally qualified people to carry out estate administration. These are regulated but under a separate system from solicitors and do not perform general legal work, instead work with other companies or have specialist departments for non-probate legal processes.
The steps of Probate
Obtain Will and check validity.
What happens if there is no Will?
If there is no valid Will, this is called intestacy. In this case, the nearest next-of-kin has the responsibility to apply for a grant of letters of administration. The process is very similar, but the law determines who can inherit, rather than the terms of a Will.
Identify who will carry out the probate.
This may be one or more named executors. In the case of Intestacy, this will be an administrator.
Who Applies for Probate?
An executor of a Will or an administrator under the Intestacy Rules (if there is no Will) can apply for probate personally or they can appoint a legal professional such as a solicitor to do this on their behalf. The process is similar regardless of whether there is a Will or not. However, an executor is given their authority to administer the estate by the Will, whereas an administrator does not have legal authority.
Probate will not normally be required if accounts or property are held in joint names (but there are exceptions depending on how a jointly owned property was held). In this case, the banks and Land Registry have procedures for the transfer of the accounts/title to the name of the surviving owner.
Beneficiaries are identified.
These are named in the Will. In the case of Intestacy, the Rules of Intestacy define who may inherit.
The decision needs to be made as to whether you would like to use professional assistance.
How do I decide if I need professional assistance or not?
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This is done by finding all assets and debts at the date of death.
This is not necessary in all cases and will be dependent on the nature of the estate.
Complete appropriate Inheritance Tax forms and pay inheritance tax if required.
Complete the application for probate forms.
Once the grant of probate/ representation has been received all asset holders need to be contacted to arrange for the release of the assets.
All creditors need to be paid.
What is a Creditor?
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Once a grant is received, the property can be sold. Although property can be placed on the market before probate is granted, most commonly people wait to avoid ‘chain’ situations.
The estate is distributed between the beneficiaries.
Records need to be kept for thirteen years.
A death by suicide and the probate process
The circumstances of a death don’t usually greatly affect the early probate processes. In the case of a death by suicide, there is a possibility that the process may be delayed due to the inquest and any delays in the final death certificate being produced. However, often the probate process is able to proceed using the coroner’s certificate/ Interim death certificate but the release of assets and distribution of the estate may have to wait until the conclusion of the inquest (in England, Wales and Northern Ireland).
Asset holders may, however, release assets before the conclusion of an inquest to help pay funeral expenses and possible inheritance tax.
Life insurance policies
One aspect that may be affected by a death by suicide is the implementation of life insurance policies. If the policy has a nominated beneficiary, the policy will not form part of the estate and is not subject to probate. The policy is instead governed entirely by the terms and conditions of the policy.
The terms and conditions of a policy will need to be carefully reviewed to discover if the fulfilment of a policy payment is affected by a death by suicide. Many insurance policies include a clause that states a payment will not be made if the death occurs by suicide within a specific time period of the policy being taken out. This may be 1 to 2 years after the policy has been taken out. In almost all cases, any payment will be withheld until the conclusion of the inquest. This is also true if there is no nominated beneficiary and the payment is due to the estate of the person who died.
Some policies have a clause that in the case of a death by suicide there may be a delay in payment. In this instance, an insurance company may refund any premiums paid during the delay period but not make the full payment that would have been due if the full-time span had elapsed.
The NBS has put together an example situation, to help you understand a bit more about how the probate process is carried out in the circumstance of suicide. Please see here to access this resource.
Factors that can influence the probate process
There are many factors that can affect the length and complexity of the probate process. We have outlined some of the instances below. Overall, this process may be lengthy, however, it is important that your loved ones Will is executed correctly and legally.