Probate is the process of managing and administering the estate of someone who has passed away. Typically, this involves clearing any and all debts that they have accumulated, as well as distributing the deceased’s assets as is consented in their Will.
Many people choose to carry out probate themselves when an estate is relatively undemanding. The executor of the Will, who is usually a spouse, civil partner or child of the deceased, has the responsibility to carry out the probate. There are four main steps to this process.
Firstly, the executor will need to assess the total value of the estate and whether or not it will be subject to inheritance tax. The next step is to apply for a ‘grant of probate’ and submit any tax forms required to HMRC i.e an inheritance tax form. The last two steps are to pay any inheritance tax that is due and then administer the estate: pay any debts and distribute the remaining assets as per the deceased’s Will. Which? has a free probate checklist that you can request via email which gives detailed information on what you need to do and when to do it.
This process can be – and often is – done directly from the executor with no help from a solicitor. However, there are some instances when employing a specialist is more important. Here’s why.
Using a Solicitor for Wills and Probate
A common scenario when hiring a specialist probate solicitor would be of value, is when the value of the estate is over the Inheritance Tax threshold, which currently sits at £325,000. When the value of the estate is significantly higher than this figure, and especially if the estate is still earning an income, the taxes due can be far more complex.
Even more complex is when the deceased didn’t leave a valid Will before passing away. This is called intestacy and there are certain intestacy rules that need to be abided when there is no Will. These rules dictate that only married or civil partners, as well as some very close relatives, can inherit when no Will has been written.
Partners can only inherit under these rules if they remained married or in a civil partnership at the time of death. If there is a joint-ownership of a property at the time of death, then the second share will automatically go to the surviving partner. The same is the case with joint bank accounts.
If there is no surviving married or civil partner, the children of the deceased will receive the value of the estate in full, divided equally. However, if there is a surviving partner, then a child only inherits if the value of the estate is above £250,000 and would then be entitled to one half of the value, divided equally if there is more than one child.
There is a whole raft of rules when it comes to intestacy, which makes it far more complex to do by yourself. When disputes arise in the case of intestacy, it can be deeply upsetting for the parties involved, so hiring a probate specialist in this situation is useful in providing an independent voice to the proceedings.
In a case study, ‘Mr A’ had no spouse, children, siblings, parents or grandparents. The rules, in this case, dictated that his estate was to be divided between his uncles and aunts. However, a dispute arose when a first cousin got in touch with the solicitor to say that they had been very close and that she was the only relative that had taken an interest in Mr A. However, because there was not enough evidence to support the cousin’s claim, she was not awarded any of the inheritance.
This illustrates firstly how important it is to always ensure you have a Will written and also the importance of hiring a solicitor for probate service. In this case, and those that are similar, finding the truth of the matter can be a complex and upsetting process; it’s often less obvious who should be awarded inheritance in any given situation and opposing groups of people may become more vocal and aggressive in their opinion.
Writing a Will can be done by yourself with relative ease and inexpensively. However, if done incorrectly, this can be the cause of much undue stress and anxiety for those that you leave behind. If a Will is not written correctly it can be rendered invalid. More on what can happen in that situation later.
Really consider hiring a solicitor to write your Will if you have assets overseas, you will have to pay substantial inheritance tax, you have children with a previous partner or other similar family complexities. By using a solicitor to write your Will you can be more confident there will be no mistakes, it will be stored safely and you will be protected in the unlikely event that something does go wrong by being able to raise a complaint.
Following on from this, another situation where you should certainly call a probate solicitor to handle assets after a loved one has died is when there is doubt from an involved party in the validity of the Will. A Will becomes invalid when it is deemed that the deceased did not have ‘testamentary capacity’ when they wrote it. This means that it can be proved that the deceased did not understand either that their beneficiaries will receive the assets, the extent of the value of their estate, the implications of including/excluding certain people or that their actions had been influenced in some way.
There may be circumstances in which a challenge to a Will may be brought after a death. This is usually from a person or party who feels aggrieved by the contents of the Will and the beneficiaries listed. Often if someone, or a group of people, have been excluded or they feel like they should be entitled to a more substantial inheritance then they may bring a challenge and cite one of the above reasons that a Will is valid.
Clearly, this situation can become very sensitive, so here it’s certainly advisable to hire a probate solicitor to take ownership and handle any challenges that arise.
In one case, a man who passed away in his 80s had left the entirety of his estate to his cleaner. This disinherited his three adult children, who raised a challenge to the will. The challenge came under a lack of testamentary capacity as their father had dementia which meant that he lacked knowledge and approval of his will. There was also an issue of undue influence on the part of the cleaner. In this case, a settlement was reached and proceedings were discontinued. This also illustrates the importance of hiring a probate lawyer when proceedings are more complicated than they first seem. If no probate solicitor had been hired here, then the children may have permanently disinherited from the estate which was rightfully theirs.
The Ins and Outs of Probate Conveyancing
As mentioned previously, when a married or civil partnership couple have joint ownership of a property and the surviving partner decides to stay in the property, the ownership of that property is transferred straight to the surviving partner. However, in circumstances where the house is going to be sold, then probate conveyancing needs to take place.
Conveyancing is the transfer of legal title from one person to another. This takes place any time that a property is sold, as well as any time that a mortgage or lien is granted. Probate conveyancing involves a different set of procedures to regular property transfers. In these cases, a grant of probate needs to be acquired before any sale can take place.
Again, these situations can be resolved without a property solicitor when the circumstances are relatively straightforward. However, when any disputes with the Will or inheritance takes place, you should always consult a probate or conveyancing lawyer to guide you through the process.
If the property of the deceased is to be sold, then this can have some advantages for the party buying the property. Namely, that there is no chain that needs to be completed for the purchase to move forward. However, sometimes the beneficiaries of the property in question will put the property on the market before gaining a grant of probate which is essential for the purchase to move through. This can slow down the entire process and cause added costs if the solicitor is charging by the hour. With this in mind, it’s always advisable to obtain a grant of probate as early as possible.
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