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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.)
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.
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?
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