The passing of a friend or family member is difficult. For some, the added responsibility of managing the estate of a deceased relative/friend may further complicate matters. This is why your team of legal experts at MHHP law have simplified the Intestacy/Probate process.
For those who need to distribute the estate of a deceased party, this guide will offer useful guidance.
Important Definitions Related to Intestacy and Probate
Dividing claims to property can become a technical and delicate matter. Understanding the process of intestacy and probate is more straightforward once you know the definitions of a few legal terms: a Will, an inheritance, an executor and a beneficiary.
What is Probate?
In England and Wales, the legal process of administering someone’s estate (property, money and possessions) after their death is termed ‘probate.’ In Scotland, this process is called a ‘confirmation.’
What is Intestacy?
Intestacy is the condition of dying without having made a valid Will. When this occurs, the deceased individual is referred to as ‘intestate.’
Intestacy can arise when the deceased benefactor leaves behind a Will which applies only to a portion of their estate. The unaddressed estate is referred to as “intestate estate.”
What is a Will?
A Will is a legal document in which a person specifies the management and distribution of his estate after his death. It states intended beneficiaries and the inheritance they are to receive after the individual is deceased.
What is a Beneficiary?
A beneficiary is any person or entity who is to receive assets or profits from an estate, a trust, an insurance policy or any instrument in which there is distribution.
In regards to the probate process, a beneficiary is one who inherits under a Will.
What is an Inheritance?
Property received from a decedent, either by Will or through state laws of intestate succession, where the decedent has failed to leave a valid Will.
What is a decedent?
The term means "one who is dying," and is commonly used to refer to a deceased person or intestate.
What is an Executor?
An executor is an individual responsible for carrying out the probate/administration process.
Generally, the will of the decedent will name the executor of the probate.
In most cases and executor would be a family member or friend (lay executor). However, when an executor has not been stated or if the distribution of an estate is relatively complex, it is common practice to appoint a professional executor (probate solicitors).
Things to consider when Faced with the Probate Process
How do I find a Will?
An estimated 60% of adults don’t have a Will. However, an executor is obligated to search for one before a decedent’s assets may be transferred.
Here are a few places can check to find a decedent's will:
1. The Decedent’s Home.
2. The Decedent's Solicitor.
3. The Decedent’s Bank.
4. The Principal Registry of the Family Division. You can call the Principal Registry at 020 7947 7022 .
If you are unable to find a Will, the law provides an alternative approach to resolving inheritance claims after the death of a decedent.
What Do I do If No Will Was Left Behind?
If a person dies without leaving a Will, the individual is said to have died ‘intestate.’
These cases are resolved through a Letter of Administration, also commonly referred to as ‘probate.’
In England and Wales, administering the estate involves the liquidation or transfer of the decedent’s assets to settle liabilities wherein the balance is paid to beneficiaries.
Beneficiaries are determined by the rules of Intestacy which often fail to consider the modern family structure. Stepchildren, unregistered partners and unmarried couples are often left with no inheritance.
What should I know about a Grant of Probate?
In cases where a Will exists, the executor may apply for a Grant of Probate from the Court. Once obtained, the document legally confirms the validity of the decedent’s will.
The Grant of Representation (authorises the sharing of the deceased’s estate) will make it possible for the executor to access all of the deceased’s assets, such as their bank and building society accounts.
What should I know about Letters of Administration?
Letters of Administration are similar to Grants of Probate.
They are issued to the decedent's next of kin when a Will isn’t left behind.
Letters of Administration might also be issued where there is a valid Will, but the Executor named in the Will is not applying for a Grant of Probate.
Commonly Asked Questions Regarding the Resolution of the Probate Process
Do I need to follow the Probate process?
If the total value of the estate left behind is less than £5,000 (cash funds), you are not required to obtain a grant from the local Probate Registry.
If the decedent’s property consists of Land, buildings or houses, the Probate Process is required.
It is worth noting that financial institutions reserve the right to define the financial value of assets above which probate is required.
If the ownership of an estate is shared among the descendant and a surviving owner, the probate process is not required. These assets will be passed over to the surviving owner.
I have been named as the Executor of a Will. What do I do if I don’t want the role?
If you are named as the executor of an estate, you are not obliged to accept. By signing a Deed of Renunciation, you may refuse the responsibility if you choose to.
How long does it take to receive a Grant of Probate?
By contacting your local Probate Registry, you can obtain the Grant of Probate. Simply fill out and return the Probate Application form PA1.
You will also need to contact HMRC to pay any inheritance tax due on the estate.
The process typically takes 3-5 weeks. However, if there are other complications (e.g. there is inheritance tax to pay, or an error is made while filling out a form), obtaining the Grant could take a lot longer.
How long does the Probate Process take?
On average probate takes between six to nine months to complete. However, depending on the complexity of the estate and the number of entities involved, it can last longer than a year.
If you or a loved one are embroiled in the complexity of the Probate process or Intestacy law, be sure to get in touch for a free 30-minute consultation (link to contact page), we specialise in satisfactory resolutions.
What Does The Probate Process Entail?
The four stages of the Probate Process:
1. Assess the total value of the estate (liable for inheritance tax)
Calculating inheritance tax can be quite tricky. The executor must determine the value of all the assets including property, cash and belongings. Then the executor must deduct any outstanding debts.
Contact a probate solicitor if you require assistance.
2. Apply for a grant of probate and submit an inheritance tax form
Once Grant of Representation (Grant of Probate or Letter of Administration) is received, deal with the banks or other financial institutions that have requested it.
3. Pay any inheritance tax that is due (Swear an oath at a solicitors office or probate registry)
Collect assets and pay outstanding debts.
4. Distribute the estate
In England and Wales, Probate Estate administration is not a reserved legal activity. Cautiously decide who to trust with the assets of your loved ones. Unregulated providers may offer probate services without sufficient experience, expertise or insurance.
When the management of an estate is straightforward, you are encouraged to resolve the process privately. Nevertheless, when dealing with relatively complex probates, you will benefit from the expertise of our solicitors.
At MHHP Law our team of talented probate solicitors is prepared to guide you and your family through the Probate and Intestacy process. For advice on achieving the ideal resolution, please feel free to contact our an experienced probate solicitors on 020 3667 4787, or via email: jon.gilbert@mhhplaw.com.
