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What is probate?

Published 17/12/2020 11:19:00, by Marina Maher

For many people it is only when involved with the death of a close family member or friend that they hear the noun Probate for the first time.  It is a word that describes a process that is often misunderstood yet is the principal element of dealing with a deceased’s estate – below is a short guide, courtesy of Which, to its main aspects

So what is it?

Probate is the name of the process of dealing with the estate of someone who has died, which generally means clearing their debts and distributing their assets in accordance with their will.  Specifically it refers to getting permission to carry out the wishes within someone's will, though the term also applies to the whole process of settling someone's estate.  If you are responsible for executing someone's will, there are specific rules that set out how you notify the authorities and distribute the estate. For permission to manage this process, you will need to apply for grant of probate, or grant of confirmation in Scotland.  There are separate rules if someone dies without a will, otherwise known as dying intestate.

How does probate work?

The process for settling someone's affairs will depend on whether you choose to do it yourself, or appoint a professional to act on your behalf.  Appointing a professional can be a good idea and, if you are dealing with a complex estate, could be essential.  If you choose to administer the will yourself, you'll need to submit the relevant applications.  You'll then need to gather in all the deceased person's assets and distribute them to the beneficiaries. This will involve notifying banks, building societies, relevant government departments (such as the council and HMRC) of the person's death, settling up any accounts they hold, tallying up their assets and liabilities, paying off any inheritance tax that might be owed, and then distributing their assets.  Helpfully, most government departments can be notified in a single move, via the 'Tell Us Once' service, including councils, the DVLA, the Passport Office, the Department for Work and Pensions (if they were receiving benefits or a state pension), and HMRC. If the person was receiving Armed Forces Compensation Scheme Payments, Tell Us Once will also contact Veterans UK.

Who is the executor of a will? 

The person who administers probate is known as the 'executor', and is generally appointed in the deceased's will. In most cases, the executor will be a family member or friend of the deceased. But it's also possible to appoint a professional executor, typically a solicitor or will writer.  Professional executors will expect to be paid from the proceeds of the estate for carrying out this duty. They normally carry out the entire probate process and receive a fee for this, too.

What if probate is contested? 

There are several ways which probate could be contested, which could prevent you from being given a grant of probate. In some cases, a beneficiary or relative of the deceased may enter a caveat, which can prevent or delay probate being granted. This might happen if two people are entitled to apply for probate, or if there are questions about the legitimacy of the will.  When a caveat is placed on the estate, then the person who placed it will need to state their reasons within eight days. If this doesn't happen, the caveat will be removed. Otherwise, it is a matter for the courts to resolve, so that probate can be granted to whichever party it deems appropriate.

If you need help or advice when acting as an executor of a will then don’t hesitate to get in touch – we can approach members of the WEA Panel of Professional Advisors for assistance or make a direct referral if you would prefer.

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