The sad truth is that at some point in our lives, most likely, all of us will have to come into contact with the Probate process because of one of our loved ones passing. And yet it is a topic shrouded in mystery where most people would not even be able to define Probate accurately, let alone confidently navigate it during an emotional time. So let's take this opportunity to explore Probate in more depth and answer 10 of the most common questions on the topic!
What is the Purpose of Probate?
So, you might be wondering, what's the whole point of probate anyway? It's a great question, so it's the first one we will address!
Probate is the legal process that takes place after someone passes away. Its purpose is to ensure that the deceased person's affairs are finalised, including payments of tax and debts and the remaining assets are distributed according to their wishes or state laws if no will is present. During probate, the court will validate the will, and the appointed executor or personal representative will oversee the payment of debts and taxes. Essentially, probate ensures that the correct person has the authority to handle the deceased person’s assets and that the taxes and debts are fully discharged before the distribution via the Will or the Rules of Intestacy.
Who is Responsible for Initiating the Probate Process?
To begin the probate process, the executor or the next of kin (if there is no Will) is responsible for initiating it. This means that as the executor, you have the legal obligation to file the necessary documents with the probate court to start the process. You must gather all the relevant information about the deceased person's assets, debts, and beneficiaries. This includes locating and securing their property, such as real estate, bank accounts, and personal belongings. You must also notify all interested parties, such as heirs and creditors, about the probate proceedings. If the estate has to pay Inheritance Tax or claim tax-free allowances, you must file a full Inheritance Tax account with HMRC before probate can be granted and within the first year of death. Overall, initiating the probate process involves a range of tasks that require careful attention and adherence to legal requirements, which is why many people seek our services at RG Law to help with this process. It doesn't matter where you are in the process; we are happy to lend a hand or take over the whole process from start to finish.
How Long Does the Probate Process Typically Take?
The length of time it typically takes to complete the probate process can vary depending on various factors. In general, the probate process can take anywhere from several months to over a year to complete. One factor that can affect the timeline is the complexity of the estate. If the estate is large and involves numerous assets, it may take longer to inventory and appraise everything. Additionally, if there are disputes or challenges to the will, this can also prolong the probate process. The court's schedule and workload can also impact the timeline, as there may be delays in issuing documents or obtaining court approvals. It's important to note that each probate case is unique, so providing an exact timeframe is difficult. However, it's advisable to be prepared for the process to take at least several months.
Do All Estates Need to Go Through Probate?
Fortunately, not all estates require a lengthy and potentially complicated probate process. In fact, some estates can avoid probate altogether. This typically applies to smaller estates mainly consisting of assets with designated beneficiaries, such as life insurance policies or retirement accounts. These assets can be passed directly to the designated beneficiaries without the need for probate. Similarly, assets held in joint tenancy or with rights of survivorship can also bypass probate as they automatically transfer to the surviving owner. Each financial institution will have its own procedures and processes, and if the value of the holding is low, it will apply simplified processes to close the accounts. However, consulting with one of our team is advisable to determine if an estate can avoid probate and that no Inheritance Tax is due.
What Happens to Debts and Taxes During Probate?
During probate, it's crucial to address any outstanding debts and taxes that need to be paid. The executor of the estate is responsible for identifying and notifying all creditors of the deceased. They must also gather all necessary financial information to determine the exact amount owed. The debts must be paid using the assets from the estate before any distribution to beneficiaries can occur. If there are insufficient funds to cover all debts, the estate may need to be sold to generate the necessary funds. Taxes are another important consideration during probate. The executor must file the deceased person's final income tax return and pay any outstanding taxes. They may also need to file an estate tax return if the estate's value exceeds a certain threshold. It's essential to consult with our Probate professional to ensure all debts and taxes are appropriately addressed during probate.
Can I contest a will during the probate process?
Yes, you can contest a will during the probate process. It allows interested parties to challenge the will's validity based on grounds such as undue influence, lack of capacity, or improper execution.
How much does probate cost?
Visit our Fee Page to get a breakdown of our probate fees. If you'd like to discuss your situation, call us on 020 8269 9900 (Sidcup) or 01904 234095 (York).
Our Wills and Probate team at RG Law are experienced in supporting you, your family and your loved ones through this process and will provide an understanding and sensitive approach, ensuring that matters are completed quickly and efficiently.
Can I sell the property during probate?
Yes, you can sell the property during probate. However, obtaining the Grant of Probate for the deceased’s estate is necessary. This ensures that the sale is valid and all legal requirements are met.
What happens if there is no will?
If there is no will, the deceased person's assets will be distributed according to the laws of intestate succession. This process can be more complex and time-consuming, and the correct next of kin will need to be appointed as an administrator to manage the estate. It doesn't matter if there are children from a previous and/or current marriage, close/distant relatives or family conflicts; the law of intestate will only consider the correct next of kin.
Are all assets included in the probate process?
Not all assets are included in the probate process. Certain assets, such as those held in a trust or with a designated beneficiary, may bypass probate. This can help streamline the distribution of assets after someone's passing. It's always wise to consider setting up a trust when drafting a will to mitigate the inheritance tax liability for your beneficiaries.
Why use a professional law firm, like RG Law, to help with Probate?
When a loved one dies, and you are appointed as an executor, it can be overwhelming as to where to start and what to do, as several critical jobs must be carried out. You may decide to deal with the estate alone or instruct a wills and probate law firm, like RG Law, to assist you. Instructing a solicitor/lawyer eases the burden and takes some of the stress away from you at a time when you are grieving and need to be with your family and relatives. The probate process relies on specialist legal and tax knowledge because several complications can arise. For example, issues with the validity of the Will or a missing beneficiary can be dealt with quickly and efficiently by an experienced professional. RG Law can assist you in dealing with the full administration of an estate or just obtaining a Grant of Probate. We will calculate whether tax will be payable and advise whether any additional tax may be payable later on in the estate from things such as Capital Gains Tax. We will take the stress out of dealing with the financial institutions to collate asset information and close accounts. We will also prepare the estate accounts and inheritance tax forms in preparation for obtaining the Grant of Probate. Don't forget we deal with the administration of an estate on a daily basis, so please take advantage of our expertise.
Instructing RG Law will give you peace of mind, and you will know that your loved ones' affairs are being dealt with in a sympathetic, efficient manner at a fixed fee price, offering excellent value for our service.
Please contact our Wills and Probate team on 01904 234095 or 020 8269 9900 if we can assist you when dealing with the estate of a loved one.
Why not do Probate myself?
Get help; at RG Law, we advise you not to go through probate alone. There are many guides on tackling the probate process, and they can be very useful. Unfortunately, guides can not give you tailored advice relevant to your personal set of circumstances, which is what we will do. We believe legal advice is missing when you go it alone. We can help answer those important questions.
What are the implications of missing vital information?
If I do this, could there be a knock-on effect on how much is inherited or how much tax is due to HMRC?
Could I be fined for getting probate wrong?
Any mistakes can cause delays. A grant of probate will not be issued until the inheritance tax due to HMRC has been paid. So time is of the essence.
Contact our Wills and Probate team on 01904 234095 or 020 8269 9900.