What is probate and when is it required?

In the first three months of 2023, the Family Court saw 69,208 applications for probate grants, up 12% compared to the first quarter of 2022. Notably, the court managed to issue over 50,000 probate grants during this period. Furthermore an unprecedented 89% of applications, and 90% of grants, were processed digitally, signifying the continual shift to the court’s online system.

While the courts are making headway, they remain inundated with a growing number of applications, as it has also become apparent that a significant portion of the population is neglecting to establish a will, putting more pressure on the system.

Recent surveys have unveiled that a staggering 59% of UK citizens have not created a will, and this number rises even higher to 65% among individuals aged 45 to 54. The absence of a will not only complicates the inheritance process for loved ones but also puts more strain on the courts.

This blog explores in more detail probate and its significance in managing and distributing assets of someone that has died, delving into the scenarios where probate is required and emphasising the need for validating the will, and appointing an authorised person to manage the estate.

What is probate?

When someone passes away, their assets (money, property, and belongings) are called their “estate.” Probate is the legal process of managing and distributing this estate, which includes collecting owed money, paying debts (like taxes), and dividing the remaining assets among beneficiaries. You should not make any financial plans or put a property on the market until you’ve got probate.

When is probate required?

Probate validates the will (if available) and appoints the person authorised to manage the deceased’s estate. The executor of a will is typically the person appointed by the deceased (testator) to administer the estate according to the terms of the will. The testator can choose anyone they trust to be their executor, not necessarily the next of kin.

If the deceased did not name an executor in their will or if the will is deemed invalid, the next of kin might have the right to apply for probate and become the administrator of the estate.

The individual appointed as the executor in a will is responsible for managing the deceased person’s estate based on the will’s provisions. The testator has the liberty to select anyone they trust as their executor, without requiring them to be the next of kin.

If the deceased person did not designate an executor in their will or if the will is declared invalid, the next of kin may have the right to seek probate and assume the role of estate administrator. A Residuary beneficiary can also step up to administer the estate.

When a person passes away without leaving a valid will (intestate), the estate’s distribution follows intestacy rules. In such circumstances, an administrator will be appointed to oversee the estate’s distribution, functioning similarly to an executor’s role.

To handle the assets and distribute the estate, both the executor and the administrator must first obtain a grant of probate or a grant of letters of administration, respectively. These grants confer legal authority to manage the deceased person’s assets and fulfil their wishes or carry out the estate’s distribution in accordance with the law.

What is a grant of probate?

A grant of probate is a legal document that allows the holder to access private information about the deceased, such as bank accounts, as well as to resolve outstanding tasks like debts. This is usually the next of kin or appointed executor. It’s worth noting that this grant is only ‘of probate’ if the person who died had a will. If they didn’t have one, then it’s called a grant of letters of administration, and must be applied for.

Regardless of whether the deceased had a will, a grant document allows the holder to deal with the deceased’s estate. This can include everything from debts to assets, although when it comes to distribution, it must strictly follow the instructions in the will. If there isn’t a will, the law determines who will get the assets.

Applying for a probate if there is a will

The person named as an executor in the will can apply for probate. This is still true even if they were only made an executor in a revision of the will (a ‘codicil’). It’s common for the deceased to have told them in advance so that they’re aware of the responsibility and will prioritise it when the will-writer passes away. An executor is not entitled to any inherited assets by taking on that role.

Applying for probate requires the will to be physically included in the probate application. Copies of any form do not qualify, and the version of the will being sent must be the most recent and updated version. Ideally, the deceased should have informed the executor about the location of their will. It may not be in their home – the document could be held by a solicitor’s office or the national probate registry in Newcastle, for example.

There can be multiple executors to deal with a single case of probate. If desired, the right to be an executor can be forfeited. This can also be done permanently if the potential executor has no interest, or capacity, to apply in the future. Probate is a crucial legal process that manages the distribution of assets after someone’s passing. Understanding probate requirements, whether with or without a will, ensures a smooth transition of assets. Seeking advice from qualified probate solicitors, like Thomas and Thomas Solicitors, can be valuable. Overall, comprehending probate empowers individuals to plan for the future and simplify estate management.

If you are looking into probate or need legal advice on a related matter, don’t hesitate to contact Thomas and Thomas Solicitors today for a no-obligation discussion. Our team of probate solicitors are here to help.