Do you have to go through probate when somebody dies?
Probate is usually, but not always, necessary when somebody dies. If you are an executor named in a deceased person’s Will, you may need to apply for probate. At Graham Evans & Partners, our dedicated team of probate solicitors in South Wales can help you determine if probate will be needed after a loved one has died.
What is probate and how does it work?
Probate is the legal process of administering the estate of a deceased person. The term estate usually refers to the money, property and possessions the deceased person had at the time of their death.
Where a Will has been left, the estate will pass to the people named in it. Where no Will exists, the Rules of Intestacy will apply and next of kin (an appropriate family member) will be required to act as an administrator on behalf of the estate.
Where probate is required, you will not be able to access property or assets that make up an estate until the Probate Registry gives the nominated executor in the Will legal authority by means of a Grant of Representation or Grant of Probate document. This document gives you the necessary permission to distribute the estate in accordance with the instructions left in the Will of the person who has died.
Our specialist probate solicitors in Swansea, Bridgend and Port Talbot, South Wales, can assist you with all aspects of the probate process which includes:
- Applying for a grant of probate or grant of representation, where there is a Will
- Applying for a grant of letters of administration, where there is no Will
- Intestacy, where there is no Will and the intestacy rules apply
- Estate administration including collecting money owed, closing bank accounts, paying debts or outstanding taxes, estate valuations for probate and tax purposes, preparing estate accounts, preparing interest and inheritance tax returns and dividing an estate between beneficiaries.
- Tax advice and planning including inheritance tax and capital gains tax.
- Probate sales including selling estate assets including land, property or arranging the sale or transfer of shares.
- Wills including interpreting a Will where it is unclear, correcting a Will where there is a mistake, defending a Will against a claim or contesting a Will where there is a disagreement.
Is probate required if there is a Will?
If a loved one has passed away, whether there is a Will or not, our expert South Wales probate solicitors can help you determine if probate will be required.
In England and Wales, probate will be needed in order for you to access or transfer any assets by means of a Grant of Probate (where there is a Will) or a Grant of Letters of Administration (where there is no Will).
Whether probate will be required or not depends on:
- The value of assets – If assets are valued over the probate threshold of £15,000 then probate will be needed, regardless of whether there is a valid Will or not. For small estates, valued at less than £15,000, then probate may not be required. Any assets, less than £5,000, held by a bank or building society, will usually be accessible without probate. However, since all banks and other financial institutions set their own probate threshold for releasing funds, it is worth checking with the individual bank, organisation or financial institution.
- The way the assets are held – If all of the assets are held in the sole name of the deceased person then probate will be required. Sometimes assets are held in joint names such as joint tenants or tenants in common. In the circumstances where assets are held in joint names as tenants in common, assets will pass to beneficiaries in accordance with the deceased person’s Will or the rules of intestacy. When assets are held jointly as joint tenants, with someone who is still alive, then they will pass to that co-owner by means of the Right of Survivorship and probate will not usually be required, particularly if this applies to all assets.
- The type of assets – If property was owned by the deceased, then probate will be needed in order to sell or transfer it - unless it is owned jointly with a surviving co-owner as Joint Tenants, in which case it will automatically pass to them. Assets which do not form part of a deceased person’s estate such as those held in a Trust may not require a grant of probate nor do pension schemes which may pay a lump sum death in service benefit to the named beneficiary. An executor of a Will can sell personal possessions of the deceased without a grant of probate but an administrator (where there is no Will) will need to seek permission by means of a grant of letters of administration.
Is probate necessary if there is no property?
You may not necessarily need probate in an estate where there is no property, especially if the estate is considered small and valued at less than £15,000. In the circumstances of a small estate, you will not need a grant of probate to access bank or building society accounts where assets are less than £5,000 or to sell personal possessions of small value from a deceased person’s estate. You will, however, need a grant of letters of administration, for legal permission to sell items if no Will has been left. Other types of assets, worth less than £5,000, such as those held in pensions, life policies, trusts, national savings and investments or government stocks can also be distributed without the need for probate.
Our expert probate solicitors in Port Talbot, Bridgend and Swansea, South Wales can advise you on whether you should consider obtaining a grant of probate, even if you do not necessarily need one. This may be of benefit in circumstances where certain assets in the estate are of high value which can help protect you by ensuring the estate is being handled and distributed correctly.
What assets can avoid probate?
You may not need a grant of probate for certain assets. These might include:
- Trusts - Assets held in trusts, such as in life policies or pension schemes that are written in a trust for the benefit of others will not be considered part of a deceased person’s estate so can avoid probate.
- Assets less than £5,000 - Other assets that may avoid probate are those worth less than £5,000 held by a bank, building society, national savings and investments, trade union and friendly society death benefits or government stocks.
- Small estates – Estates valued at less than £15,000 may not necessarily need a grant of probate to be obtained. However, there are still advantages to getting a grant of probate, even if you don’t need one, as a means of following proper procedures and protecting yourself, as an executor, against any disputes or claims, should there be items of high value in the estate.
- Personal possessions - Low valued items that make up the personal possessions of a small estate can be sold or divided between beneficiaries, usually without the need for probate.
- Joint assets - Assets held jointly, as joint tenants with someone who is still alive, will pass to the surviving co-owner under the right of survivorship and will avoid probate.
How long can a solicitor hold money after probate?
Our team of probate lawyers in Swansea, Bridgend and Port Talbot, South Wales, will usually be able to obtain the grant of probate within three months for estates that are simple and straightforward and where there is no property to sell. In most cases, you can expect it to take approximately six to nine months for the estate to be administered and inheritance to be distributed and received by beneficiaries.
What to do when a parent dies and you are the executor?
If a parent has passed away, you may be named as the executor of their estate in their Will. This means you will be responsible for the management of their affairs and for the administration and distribution of their estate to beneficiaries in accordance with their Will.
Some of the duties and responsibilities you will be required to manage when you are the executor of a deceased person’s estate, include:
- Gathering financial documents.
- Forwarding copies of the death certificate to banks, building societies and any financial institutions that holds the money of the person who has died.
- Obtain confirmation from banks, building societies and any financial institutions about the value of the assets held at the time of death.
- Freezing bank and building society accounts so they cannot be accessed without the legal authority.
- Opening a bank account on behalf of the estate.
- Establishing money owed to the estate and collecting money owed.
- Establishing money owed by the estate and paying outstanding debts including tax and bills.
- Calculating and paying inheritance tax that is due.
- Preparing a detailed list of estate assets including property, money and possessions.
- Making sure the necessary documents required by the Probate Registry and HM Revenue and Customs are prepared and sent.
- Making sure that estate money is collected from banks, building societies, insurance companies and pension schemes or other investments when the probate or letters of administration have been granted.
- Making sure debts, expenses and fees are paid.
- Distribution of the estate to the beneficiaries named in the Will.
Whatever level of support you need, our dedicated team of South Wales probate solicitors in Bridgend, Port Talbot and Swansea can help ensure you manage your duties correctly, with speed and efficiency, during a difficult time in your life when a loved one has passed away.