Probate, it’s a word you’ve probably come across before, maybe you’ve dismissed it as legal jargon, but understanding what probate is is important as you may find yourself needing to go through the probate process one day. Below we’ll take a look at what probate is and the differenced between probate with and without a will.
What is probate?
Probate is the judicial process of dealing with the estate of someone who has died. Technically probate is the act of getting permission to carry out the wishes of someone’s will. If the person has a will then probate will involve reviewing the will of the deceased to determine if it is valid and authentic and distributing the assets accordingly. If the deceased does not have a will then it refers to the general administration of the person’s estate. For permission to manage this process, you’ll need to apply for a grant of probate, or grant of confirmation if you live in Scotland.
Should you conduct probate yourself?
The first thing you’ll want to consider is whether you wish to go through the probate process yourself or act through a solicitor who will often offer you fixed fee probate. Using a professional for this process could be a good idea especially if you are dealing with a complex estate. If you choose to go through the probate process yourself then you will be responsible for submitting the relevant applications, gathering the deceased person’s assets and distributing them to the beneficiaries.
Probate with a will
The probate process differs depending on if the testator (deceased person) has left a will or not. If the testator has left a will then the custodian of the will must take it to the probate court or the executor of the will within 30 days. The probate court is then responsible for deciding whether will is valid and authentic and will then officially appoint the executor of the will giving them the legal power to act on behalf of the deceased.
The executor is then responsible for estimating the value of the person’s estate, locating their assets and paying off any taxes or debt owed from the estate. It is also the responsibility of the executor to file the final income tax return on behalf of the deceased. Once all taxes and debts have been paid off the executor can then seek authorisation from the court to distribute what is left to the beneficiaries.
Probate without a will
If a person dies without leaving a will then they are said to have died ‘intestate’. A person’s estate can also be deemed intestate if it is not found to be valid and authentic by the probate court. Without a will, the deceased person’s assets will be distributed according to the law. The probate court will begin by appointing an administrator who will function as the executor and will be in charge of paying any outstanding debts and receiving any legal claims.
If a friend or relative of the deceased is willing then they can apply for a ‘grant of letters of administration’ and become the administrator of the estate. The administrator will also be given the task of locating any legal heirs which could include children, parents or surviving spouses. The probate court will then decide how to split the assets between the legal heirs. If no heirs can be located then the assets will become the property of the Crown and HM treasury is then responsible for dealing with the estate.