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“National Probate, providing an essential service at such a difficult time”

What is Probate

"What is Probate?”, is the question we are most commonly asked when first contacted by a new client. Most of us have heard of Probate, but very few know what it is and just how complex it can be. If you look in the English Dictionary, Probate is described as ‘The official proving of a Will’

In reality however, the word Probate is a legal term referring to the submission of a Will to the (Probate) Court for validation and of course along with that, the legal responsibilities (of the Executor) to administer the process of transferring the ownership of the assets from a deceased person to their beneficiaries. (Nb. In Scotland, it’s called Confirmation)

When someone dies, the executor named in the deceased's Will must apply for a ‘grant of representation’ - (ie. ‘probate’) and depending on the jurisdiction is often a complex time consuming process. If a lay executor is named on a Will, they can either undertake the process (along with ensuring compliance with the mandatory legal responsibilities ) themselves or alternatively if like many of our clients you find the prospect of proceedings too emotional and too worrying, the responsibilities of the Executor can be transferred to our appointed authorised legal team via us at National Probate with our Professional Probate Assistance service. (via PA11 Power of Attorney).

Due to the (often complex and time consuming) legal responsibilities involved with being an Executor, if you are named as one in a Will, you do have the right to renounce your duties (via form PA15) however that leaves the Will open to having state administrators appointed by the Court hence the reason for being able to appoint our legal team as Professional Executors (via PA11 Power of Attorney).

If a person dies without a Will, they are classed as dying ’intestate’ and in this eventuality specific rules and procedures apply that determines who receives what. The first stage in the process require the deceased’s next of kin to apply to the Probate Court for them to appoint administrators to process the estate in accordance with intestacy rules.

The Probate Process

Most cases (where there is a Will) follow the process as detailed below. (If there’s not a Will, intestate rules apply.)

  • Estate Valuation
    A comprehensive list must be compiled detailing all of the assets of the deceased. This must include Property, Possessions (ie. Cars, Jewelry etc.), Bank Accounts & Cash,     Investments and any Debts. (nb. For Property and high value items, professional valuations will be required)
  • Asset Security
    It is the responsibility of the Executor to ensure that Deceased’s assets are secured and  insured. (Existing insurance policies may lapse on the death of the policy holder.)  In fact, it is worth noting that a deceased’s assets are frozen upon death.  You will also need to redirect (or monitor) mail from the deceased address.
  • Finance and Administration
    Send authenticated copies of the Death Certificate to the Deceased's banks, building societies and insurance companies etc. and instruct them to stop paying any payments/  direct debits/standing orders etc.  Communicate the death to any government departments that may have been paying benefits/pension payments to the deceased. Verify the income tax status of the deceased. (is any tax owed or is a tax refund due?) A lay Executor should consider setting up an Executors bank account as you will not be able to transact banking with the deceased's or your own account.  (A Professional Executor will use its client account to administer any/all payments due on behalf of the estate)
  • Inheritance Tax (IHT) Compliance
    File Inheritance Tax Returns with HMRC (and pay any tax due) by the return deadline date. Nb. One of the added benefits of instructing our Team of Professional Probate Lawyers include our expert knowledge and ability to be able to set up a Deed of Variation in order to effectively ensure where applicable that the beneficiaries of the Will receive as much of their inheritance as possible due to being able to mitigate inheritance tax liabilities.
  • Apply for Probate
    Only after all of the above formalities are completed can the Probate Application form   (PA11) be submitted to the Probate Court (Registry). Depending on jurisdiction, it is likely that the applicant will need to attend an interview at the relevant government administrative office and will have to promise that the information they give is true to the best of their knowledge. (Swearing an oath)  The application is actually for a formal Grant of Representation which in turn authorises the Executor to proceed with his/her responsibilities.
    Generally, it takes between 9 and 12 months to obtain Probate, with the majority of this time spent gathering the information required in order to be able to complete the application forms. (it can take significantly longer for high value estates, Wills that containforeign assets and contentious cases.)
  • Estate Administration.
  • Pay any Inheritance Tax Due.
  • Gather all Assets.  (including their sale if necessary)
  • Pay any Debts.
  • Distribute in accordance with the instructions in the Will.

After Probate is granted, beneficiaries can often receive their inheritance relatively quickly (although this is of course subject to assets being sold if the Will stipulates this as a requirement) Upon completion, the estate will then be ‘wound up’.

If the Will created any trusts however, the Trust Executors (who are often also be the Trustees) will have an ongoing duty to manage those trusts.

It is important to note that if Probate is not obtained after someone dies, and Probate is needed on the deceased's estate, the beneficiaries will not be able to receive their inheritance. Instead the assets will be frozen, and will be held in a state of limbo, as no one will have the legal authority to access or transfer the assets.

Is Probate Always Required?

No, it’s not and the whether or not Probate (and/or to complete and file an Inheritance Tax Return) is required depends on multiple factors such as whether the assets were jointly owned, their value and whether or not the Deceased made a Will.

Probate will not be required of the estate is small/simple (usually £5’000 or less) and if all of the assets were jointly owned (eg. Bank accounts and property) you should not need a Grant of Probate.

For further information on how we can help you with our Professional Probate Assistance service, Instruct Us now so we can organise a free no obligation initial consultation

Some Common Legal Estate Planning Terms Explained

International Probate

If a loved one has passed away and they owned assets in multiple countries, it is likely to be an even more complex, time consuming process to administer their estate without the help of a Professional Executor who is experienced in dealing with international probate. This is because probate also needs to be obtained in every one of the countries where assets are located.

It is also important to be aware that some countries do not recognise UK processes and other countries will have their own laws which take other factors into consideration (including laws which dictate who inherits what) when deciding how the estate should be distributed. These added complexities make the process of dealing with the estate even more complicated.

Our legal team have extensive knowledge in dealing with estates with foreign assets and therefore, we are able to manage all aspects of estate administration, from getting the initial Grant of Probate all the way through to distributing the inheritance.

Why instruct National Probate for International Cases?

  • We are highly experienced in a multiple range of cases, from straightforward assets to complex high-value estates with trusts.
  • We advise our clients when the deceased was a UK national with assets abroad or a foreign national living outside the UK with UK domiciled assets.
  • We have multilingual translation facilities.
  • We work with international solicitors, estate agents, tax planners, courts and lawyers based in any country to help them apply for a UK Grant of Probate.
  • We can assist with both domestic and international tax and trust services.
  • We can advise on heritage properties and international wealth management structures.
  • We can advise on drafting an international Will if you have assets abroad.
  • We can help with asset tracing.

For further information on how we can help you with our Professional Probate Assistance service, Instruct Us now so we can organise a free no obligation initial consultation

 

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