When dealing with the legal side of someone who has passed away, you’ll hear the words “probate” and “will” a lot. While they are related, probate and a will are not the same. Understanding the difference is important if you’re going through the estate administration process after someone has passed. Redkite Solicitors can help guide you through this complex process to ensure everything is handled properly.
What is a Will?
A will is a legal document that outlines the wishes of the person regarding what happens to their assets after they die. It often includes who gets the property, money or other assets. The person making the will can name executors who are the people responsible for making sure the deceased person’s affairs are carried out according to the will.
If there is a valid will, the executor named in the will usually starts the probate process. If the will is contested or there are multiple executors named, the process can be delayed and the estate can’t be dealt with for an unreasonable period of time.
What is Probate?
Probate is the legal process of proving the will (if there is one) and getting the legal authority to administer the deceased’s estate. Probate is required to deal with a deceased person’s assets such as bank accounts, property or other financial assets that were in the deceased’s name alone. If someone dies without a will, the same process applies but the legal powers to administer the estate are given via letters of administration rather than a grant of probate.
Some assets such as those in joint accounts or jointly owned property may pass to the surviving partner or other owner in certain circumstances and probate may not be required for those assets. But if the deceased owned assets solely, probate will be required.
Probate Solicitors and Legal Fees
Many families choose to engage probate solicitors to help them through the probate process which can involve significant legal fees. Personal representatives may also need to deal with financial institutions to collect money owed to the deceased or pay off outstanding debts. These solicitors will complete the probate application form, file it with the probate registry and help with the estate administration.
What happens during Probate?The probate process involves:
- Getting the death certificate: This is the first step.
- Submitting the probate application: This can be done online in some cases.
- Grant of probate: This is the official confirmation from the probate registry that the named executors or administrators have the right to deal with the deceased person’s assets.
- Administering the estate: This means collecting the deceased’s assets, paying any debts (including inheritance tax) and distributing the balance according to the will or intestacy laws if there is no will.
- Settling with financial institutions: Bank accounts and other financial assets need to be collected and distributed according to the will or estate laws. Other financial institutions may also need to be notified, such as mortgage providers or pension companies.
When is probate not required?
In some cases probate may not be needed. For example if the deceased person had minimal assets or everything they owned was held jointly with someone else, the surviving spouse or civil partner will automatically inherit without probate. If the deceased’s estate was worth less than the threshold set by certain financial institutions, probate may not be required.
What if there is no will?
If someone dies without a valid will they are said to have died intestate. In these cases the estate will be distributed according to the intestacy laws. Instead of executors, personal representatives will be appointed and they will need to apply for letters of administration to get control of the estate. This is essentially probate but without the will.
Additional complications
In some cases probate can be more complicated. For example if the deceased person had property abroad or other forms of income or if there are significant debts it can take longer to settle the estate. If the person entitled to inherit the estate is unclear or if there are family members disputing the will this can lead to delays or legal challenges.
Conclusion: Is probate the same as a will?
In summary a will is not the same as probate. A will is a document that outlines how a person’s assets should be distributed after they die, probate is the legal process of administering those assets and ensuring debts are paid, taxes are settled and the balance of the estate is distributed to the beneficiaries. In some cases probate may not be required, but in most cases, especially where there are significant assets, probate is necessary to ensure the smooth and legal transfer of the deceased’s estate.
Redkite Solicitors can offer expert guidance on both probate and estate administration, helping to ensure the process is handled efficiently and in accordance with the law.
