By definition, probate is the word normally used to describe the legal and financial processes involved in dealing with the property, money and possessions (commonly known as assets) of a person who has passed away. A probate solicitor assists people who have lost family members or friends, which is undoubtedly a highly stressful and emotional time for those left behind. In addition, they will also be dealing with the various types of taxation that need to be dealt with when someone dies, this includes income tax, capital gains, and inheritance tax.
In some cases it’s perfectly acceptable to handle the probate yourself, making you the executioner of the will. However, the most common course of action for many people is to employ the assistance of a wills and probate solicitor during the process. Naturally dealing with the loss of a loved one can be an emotionally charged time for anyone, so hiring a probate solicitor can provide you with some much needed clarity during what is undoubtedly a difficult time.
Due to the complex nature of this type of legal process, not to mention the amount of jargon involved, many people find understanding the procedure of wills and probate, highly intricate. A probate solicitor will not just handle the legalities and administrative process, they also have the additional benefit to you of being a completely independent body with no emotional links to the individual or the case. They are dealing with cases of this nature everyday. They will be able to deal with the legalities with a clear, unbiased perspective.
This comprehensive guide will talk you through what a wills and probate solicitor does and how their services may be beneficial to you. This includes the various types of will, using a solicitor and the process of using a conveyancer.
What is probate?
Probate is essentially the process of administering a deceased person’s estate. This involves coordinating the organisation of their money and possessions and then distributing them as inheritance. Taking this into consideration, you may be surprised to know that the number of adults in the UK who don’t have a will is at an all time high amounting to over 31 million. In research coordinated by unbiased.co.uk, the amount of people passing away without a will was at its highest in 2018 – the greatest peak since the last highest number in 2011. Dying without a will in place referred to as ‘intestate’. When this occurs, inheritance law is implemented to decipher who is entitled to what. This is known as the Rules of Intestacy. If the deceased person has left a will, it will specify who they have chosen to leave the estate to, this individual is then known as the executor of the will.
What is a grant of probate?
Before an executioner begins this legal process, they must apply for a grant of probate. This legal document gives them permission to deal with the deceased’s legal property. Probate will cease once all taxes and debts have been paid and their inheritance has been passed on. If you have been named as the executor and don’t wish to apply for probate yourself, you can request that a solicitor do this on behalf of you.
What circumstances require wills and probate solicitors?
Other than the general administrative and impartial support that comes with hiring a wills and probate solicitor, there are various other issues that may require the support and guidance of one. This may include:
- A will being contested in terms of its validity and or if dependants were left out of the will (and they are likely to contest this)
- The deceased person has passed without a will
- The case involves a vast estate and complex details are involved such as trust funds
- The estate in question is bankrupt
- The estate involves a foreign property or asset
- The value of the estate is receiving consistent income
- The overall value of the estate is on the boundary of an inheritance tax threshold
How does the process work?
Every will and estate will vary, the precise probate process can be dependant on the instructions left on the will as well as the assets, creditors, and the benefactor of the estate. This process involving the executor will go something like this:
- Gather the relevant information regarding the estates assets
- Apply for the grant of probate
- Fill out an inheritance tax return and pay any tax due
- You receive a grant of probate
- Repay any outstanding debts left by the deceased
- Distribute the rest of the estate in accordance with what is stated in the will
A probate and will solicitor will also be able to assist with any disputes that occur between the executor, benefactors or HMRC.
The different types of will
Wills must meet certain criteria to be valid. The person who makes the will, known as the testator, must be at least eighteen years old and of sound mind. The testator is then required to select an executor, which will provide them with the responsibility of distributing their property after death. They must sign and date this will – this has to be done in the presence of witnesses. However, within this process, there can be a number of different types of will. Understanding what type of will is suited or applicable to you can be difficult, this is why is recommended that you use a professional solicitor. Broadly speaking, there are several types of will available to you:
- A single will – this type of will is probably the most frequently used and best-known type of will. This will detail the demands of the individual, including their chosen executor as well as their gifted items.
- A mirror will – used when there is a possibility that you may outlive the person who has made the will.
- A trust will – there are various different types of trust wills. A property trust will is put in place to help you understand how a property you may own is taken care of.
- A living will – this type of will enables you to express your wishes while fully aware of your decisions in the event that in the future you are unable to make these choices. This isn’t a legal binding contract but is taken into full consideration by doctors and solicitors
How does conveyancing apply to this?
A conveyancer generally refers to a conveyancing solicitor or legal conveyancer. A conveyancer won’t just draw up legal documents but will also arrange for the transfer of the title to be registered with the land registry. A conveyancing solicitor applies to this scenario in that they will be able to provide you with additional expertise in dealing with the financial and legal matters associated with a property and also help in drawing up or amending your will.
Finding a solicitor
There are countless benefits to using a will and probate solicitor and doing so can save a great deal of stress for those left behind. As well as giving you peace of mind:
- Protecting your assets if something goes wrong: solicitors are regulated, this means if you have any kind of issue you can file a formal complaint to the firm you have chosen to work with.
- Feel assured they’ll be no mistakes: frequent problems with wills include using the wrong witnesses or forgetting to get the will signed, could mean the will won’t be valid. Using a solicitor minimizes the risk of all of this.
- Your will is going to be kept safe: if a solicitor, they’ll usually store it for you, common practise is to keep it stored in a fireproof safe.
For many of us, drafting a will is hardly at the top of our to-do list. But the fact remains that the process of drafting your will, gives you the clarity and reassurance that your estate is going to be appropriately and fairly dealt with when you are no longer here, putting you and your loved ones at ease. Here at Catherine Higgins Law, based in Liverpool, we are well versed in drafting and undertaking the process of probate when that time comes. We will be on-hand to help you create a legally binding will that ensures your assets are going to be fairly distributed to your loved ones. Get in touch with us today to see how we can help you.