The death of a relative or close friend is understandably distressing and the legal process that follows can sometimes seem confusing, particularly at such a difficult time.
Here, Rachel Blackburn, Mander Hadley’s Head of Wills, Probate and Older Client Services explains the probate process:
What is probate?
Probate is the legal process of dealing with the estate (savings, property, possessions, debts etc) of someone who has died. If everything was jointly owned or there is no property involved and assets are below a certain value, probate may not be required so it is always best to seek advice before dealing with the administration of the estate.
Where probate is required, the process can often take several months and often involves a significant amount of paperwork and phone calls.
What is an executor?
Anyone who makes a Will must name an executor – this is the person who will be legally responsible for handling the estate, dealing with probate matters and carrying out the Will’s instructions.
What are the five main stages of probate?
The assets of an estate typically include property, savings and possessions. A valuation will need to be prepared, taking into account any debts that need to be paid. Any gifts made within seven years of the person’s death must also be added to the value of the Estate.
Depending on who is set to inherit the assets and the amounts involved, Inheritance Tax may be payable and the executor is responsible for ensuring that the correct forms and payment are sent to HMRC on time.
If a valid Will is in place, as an executor, you will need to apply for a grant of probate. This allows you to distribute the assets according to the wishes of the deceased.
Where there is no valid Will (the person has died ‘intestate’) a Grant of Administration must be applied for. Who is entitled to apply depends on the family circumstances and family tree.
This is the official term for turning assets such as property and possessions into cash which can then be distributed to named beneficiaries or the next of kin.
It also involves ensuring that all debts have been paid, including any Income Tax and Capital Gains Tax owed.
Once all debts have been paid and assets have been liquidated, a final net amount can be calculated.
If the terms of the Will state that the estate should be shared amongst beneficiaries as a percentage of the estate’s net value, the executor will calculate the amount due to each beneficiary. If there is no Will and the rules of intestacy apply, the estate is distributed according to the regulations.
Do I have to deal with probate matters if I have been named as an executor?
Sometimes people are reluctant to take on the task and ask whether they must act as an executor.
The short answer is, no. Hopefully the person making the Will, would have taken time to discuss the matter with you first, so that you may decline.
However, where this is not the case, or perhaps your personal circumstances have changed, you may refuse, providing you have not yet started to deal with the administration of the estate.
It may well be, that whilst you are happy to be named as an executor, you do not feel able to deal with the countless documents, phone calls, emails and red tape associated with the probate process.
At this stressful and emotional time, you may find it easier to appoint a solicitor to assist with handling probate and other duties of an executor.
If you would like to find out more about the probate process or would like help dealing with the administration of an estate, please get in touch with our expert Wills and Probate team.
Mander Hadley Solicitors is not only a long established firm, but is vibrant and successful, with a forward thinking approach.
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