Reasons to choose Wilson Browne
Probate of Will is the process which sees a deceased person’s assets (money, property and possessions) distributed in the way they have determined in their Will.
There are strict procedures set out by law that the executor (the individual responsible for putting a Will through probate) must follow.
The length of time that probate takes will depend on a number of factors, including the complexity of the estate, whether there is any legal challenge to the Will and whether the probate application can be done online or by a paper application (the paper application process is currently taking anywhere up to 8 months).
It is important to stress, however, that the greater understanding the executor has of the probate process, the more likely it is that they will be able to implement the Will in a timely manner.
This is crucial as probate delays can cause beneficiaries of the Will considerable emotional and financial stress.
We will look in detail below at how the probate of the Will process works and the responsibilities of the executor.
In view of how onerous the role can be (especially in cases involving large estates), many people prefer the peace of mind that comes from appointing a legal expert to act as the executor of their Will.
Do you need to go through Probate if there is a Will?
A Will is a document in which someone sets out exactly how they want their assets to be distributed after their death (such as to relations, friends and charities).
For all but the smallest estates (those up to around £5,000 may be exempt), probate is an essential part of implementing the terms of a Will, both in terms of gaining permission to dissolve the estate and the process of ensuring that beneficiaries receive their inheritance.
It is essential that the executor follows the correct procedure – failure to do so could lead to delays and legal challenges (which can significantly reduce the value of an estate).
What is the process of Probate of a Will?
The term Probate refers to the process by which a Will is implemented by the executor, distributing the deceased individual’s assets according to their wishes.
It is essential that the executor follows the procedure below to ensure that Probate proceeds as efficiently as possible:
Grant of probate
The first task for the executor is to check whether it is necessary to apply for a grant of probate. The grant is usually required as it provides the legal right to implement the Will.
For smaller estates (up to around £5,000), probate may not be required, however, so the executor should contact the bank or building society that is holding the money to ask if a grant is necessary.
Should probate be required, the executor will need the following in order to apply for the grant:
- An estimate of the estate’s value: This is to see if there is inheritance tax payable on the estate. To calculate the value, add together all of the money, property and possessions within the estate and then subtract any debts (such as mortgages and loans). HMRC guidance says that any individual items worth more than £500 (including property) should be professionally valued. The proceeds from the estate should be placed in a bank or building society account set up for the purpose – they should not be deposited in the executor’s own account.
- A copy of the death certificate
Probate can be applied for online or by post – more information is available here. The executor should make several copies of the grant, as one will be required for each asset holder.
Paying inheritance tax and other debts
Tax is usually payable at the rate of 40 per cent on everything above the current tax-free allowance threshold of £325,000.
The executor should pay off all debts they know about, and it’s also recommended they place a notice in The Gazette to give other creditors the chance to make a claim on the estate – this can help protect the executor from personal liability for any unpaid debts.
Distributing the estate
When all the estate’s outstanding debts have been paid, the executor can move on to distributing the assets in the way set out in the Will.
It is vital that the executor keeps detailed records of this process – drawing up estate accounts to show what each beneficiary should receive and noting when payment has been made. Clear and accurate records will greatly reduce the chance of a legal challenge over the process.
The executor should also check that none of the intended beneficiaries have been declared bankrupt (which would prevent them from receiving an inheritance) and that anyone aged under 18 has two trustees to safeguard their interests.
Why would a Will go to Probate?
Probate provides the executor with the legal authority to distribute the deceased individual’s assets in line with their wishes.
For most Wills (there can be exemptions for estates up to the value of around £5,000), the probate process is an essential part of implementing a Will.
Asset holders such as banks and building societies will usually require a grant of probate to release the deceased individual’s funds while the grant will also be required to sell investments and property.
Is a Will enough to avoid Probate?
Probate is usually an essential requirement for a Will to be implemented.
There can be exceptions for smaller estates (up to around £5,000) – the executor should check with asset holders such as banks and building societies over whether they will require a grant of probate in order to release the deceased person’s money.
Can the executor of a Will also be beneficiary?
It is permitted for the executor of a Will to be a beneficiary – and it is common for this to be the case. In such instances, though, the executor must always act in the interests of all beneficiaries and not just themselves.
One important point to be aware of is that anyone who acts as a witness to the Will cannot also be a beneficiary.
What issues can cause delays to the probate process?
While the time that probate takes will vary from case to case, there are a number of issues that are likely to delay the process. These include:
Difficulty in finding the Will
It is essential that the executor is able to take possession of the most recent version of the deceased individual’s Will as soon as possible. While many people leave clear details about the location of the document, this is not always the case.
This can cause a significant delay while the executor searches the deceased’s home (with the permission of their family), checks if their solicitor or bank are holding the Will, or hires specialist search consultants in an effort to find the document.
At best, this can delay the probate process, causing further stress to the family who are already grieving the loss of a loved one.
Should no Will be found, the estate would be treated as though no Will had been made – and the law of intestacy would apply (this may not distribute the assets in the way that the deceased individual would have wished).
Complexity of the estate
Some Wills are relatively straightforward, and in such cases, the probate process may proceed quickly with no complications. Many Wills, however, are more complex and involve issues such as:
- Selling property
- Inheritance tax
- Capital gains tax
- Overseas investments (which will be subject to the laws and tax arrangements of the country in question)
- The setting up of trusts and appointment of trustees to safeguard the inheritance of children
Such estates are likely to take longer to distribute among the beneficiaries. This is especially likely if the executor is a relative or friend of the deceased who may lack the time (due to work or family commitments) or expertise to progress the process as quickly as they would like.
An issue that can cause substantial delays to the probate process is a legal challenge from someone who has received no inheritance or a smaller one than they were expecting.
A challenge could be launched regarding:
- The way the Will was drawn up
- The way the executor has carried out their duties
Such challenges may be more likely if the drawing up of the Will and the probate process were not carried out by a solicitor. An aggrieved party might claim, for example, that the Will was not drafted using the correct terminology or that the individual was coerced into making it.
In the case of the probate process, it may be alleged that the executor has not followed the correct legal procedures for administering the estate.
A legal challenge is likely to cause a significant delay in the probate process and significantly reduce the value of the estate.
How can a solicitor reduce the risk of delays in the Probate process?
Working with Wilson Browne’s team of expert solicitors both in the drawing up of the Will and in its implementation can reduce the risk of delay in the probate process in a number of ways.
Free Will Storage
Wilson Browne is delighted to offer a free Will storage service to all clients who have their Will drawn up by our solicitors.
This brings peace of mind that your Will is safe and will be available to your executor when required, enabling them to begin the probate process without delay.
Our solicitors have considerable skill and experience in drafting Wills and acting as executors to progress them through the probate process. We are adept at handling issues such as property, tax, investments (in the UK and overseas) and trusts, working where necessary with trusted local accountants.
This not only enables us to probate Wills in a timely manner but also to minimise your tax liabilities and ensure that as much of your estate as possible goes to your beneficiaries.
Having both the drafting of your Will and the probate process overseen by legal experts can significantly reduce the risk of a legal challenge.
Our solicitors will ensure that your will is drafted in clear and correct legal terminology. By developing a personal relationship with you, we can satisfy ourselves that you have the capacity to make decisions about your estate and that the Will reflects your true wishes.
In addition, by future-proofing your Will and offering free Will health checks, we can help to ensure that it continues to meet your requirements should your family or financial circumstances change over the years. This can help avoid the possibility of someone making a legal challenge because they believe they have been unfairly excluded from the Will.
Where can I find out more about avoiding delays to the Probate process?
At Wilson Browne, we recognise that Wills and Probate are sensitive issues that many people feel uncomfortable about discussing.
Our experience tells us, however, that having your Will drawn up by legal experts and knowing that they will use their skills and knowledge to put it through probate can bring considerable peace of mind.
Drafting a robust Will, ensuring it remains fit for purpose over the years and putting effective arrangements in place for its efficient implementation after your death are the best ways to ensure that your assets are distributed according to your wishes.
At Wilson Browne, we operate with the highest levels of expertise, integrity and sensitivity to safeguard the future of your loved ones.
We’ll take the time to get to know what matters to you so that this is reflected in your Will and also ensure that probate proceeds as smoothly as possible in order to support your family at such a difficult time.
With offices in Corby, Higham Ferrers & Rushden, Kettering, Leicester, Northampton and Wellingborough we can offer you a face-to-face meeting in your area and will also be happy to make home visits for clients with mobility issues.