Probate is a topic that people often don’t like to think too much about. It can conjure up images of Dickensian courtrooms and complicated Will readings, though the reality tends to be very different.
Because probate is a topic many people avoid altogether, there are naturally a lot of misconceptions about it. We’ve explained the truth behind some of the most common of these below.
Misconception: probate refers to a single thing
There’s a lot of confusion about what probate actually is, which is hardly surprising when the same word is used to describe two related things. The word ‘probate’ can refer to both:
- A document called a Grant of Probate.
- The whole process of winding up an estate, from the initial assessing and valuing all the way up to covering debts, selling property and making payments to beneficiaries.
A Grant of Probate is a document that proves an executor has the right to administer an estate. To get one, you will need to apply to the Probate office. Once you have been issued with a Grant of Probate, you can then show it to organisations such as banks, building societies and conveyancing solicitors in order to be given access to the estate’s accounts. You can only apply for a Grant of Probate if the person whose estate you are responsible for left a valid Will. If you are administering an estate without a valid Will, you would need to apply for Letters of Administration rather than a Grant of Probate. Once issued, Letters of Administration can be used in the same way as a Grant of Probate.
Misconception: probate is always necessary
You will need to apply for a Grant of Probate (or Letters of Administration in cases where there is no Will) in many situations, but not in always. In the case of some very simple estates, it may not be needed at all.
You might be able to administer an estate without having to apply for probate if:
- All assets belonging to an estate are owned jointly with someone who is still living.
- No property is owned by the estate.
- The amount of money in the estate is reasonably small and all banks and building societies involved have indicated that they are able to release funds without a Grant of Probate.
However, you definitely will have to apply for a Grant of Probate if you need to sell property on behalf of an estate or if any inheritance tax will be due. You will also need to apply for a grant if any of the banks or building societies where the person who has died had an account have told you that they will require this. This is true even if the amount of money in the account is relatively small: each bank and building society can make their own policies on this.
Misconception: probate isn’t needed if there’s a Will
Whether or not a valid Will has been left with an estate will affect some parts of the process, but it will not affect the overall fact of the estate needing to be administered.
As discussed above, if it’s necessary to apply for probate, whether or not there is a valid Will determines whether you apply for a Grant of Probate or Letters of Administration. Though, in practice, there’s very little difference between these two documents and both are collectively referred to as grants of representation.
Equally, even if a Will has been left with very clear instructions for how the estate should be dealt with, the executors will still need to work through each step of the probate process in order to make sure those wishes are carried out.
Misconception: anyone can apply for probate
Only certain people have the right to do the work of administering an estate. If there is a valid Will in place, the only people who can apply for a Grant of Probate are the people who are named in that Will as executors.
If there is no Will, there are specific rules about who can apply for Letters of Administration on behalf of an estate. The closest relative of the person who has died should apply in the following order:
- Their spouse or civil partner (unmarried partners do not have the legal right to do this).
- Their child.
- Their grandchild.
- Their parent.
- Their sibling.
- Their niece or nephew.
- Another relative.
There are also some situations where a valid Will has been left but the executors named in it are unwilling or unable to act. In these cases, a close family member will need to apply for a Letters of Administration following the priority order above.
Misconception: probate can be completed soon after the funeral
The amount of time it takes for the process of applying for probate and administering an estate can vary hugely. Even very simple estates can take many months to finish winding up. More complicated estates, or estates where property needs to be sold, can take a great deal longer. If there are any disputes or challenges involved, it could even take multiple years.
The Probate office is currently experiencing huge delays and you should expect to wait around four months for grants of representation to be issued.
Misconception: probate is always horrifyingly expensive
Winding up an estate is a complex job. Not only will you be responsible for assessing and valuing the full estate of the person who has died, you will also need to ensure you have paid any outstanding debts. Not only is this a very big responsibility to the person who has died, it is also a considerable legal responsibility. If any mistakes are made, you would likely be required to cover any shortfall from your own pocket.
Despite all this, many people struggle on managing the whole process themselves as they are concerned about the cost of seeking professional help.
The good news here is that getting support is likely to be less costly than you think. Though it’s possible to instruct a solicitor to handle the whole process on your behalf if you wish, you can also choose a lighter level of support.
If you’re concerned about the cost of administering an estate, please do get in touch. You might find that help is more affordable than you thought.
How Roche Legal can help
We are reassuring experts who can help you with a wide range of legal matters. Please get in touch if you need legal support with:
- Trusts and Estate Planning
- Probate and Estate Administration
- Contested Probate and Will Disputes
- Powers of Attorney
- Court of Protection matters
- Presumption of Death Applications
- Missing Persons Guardianship Applications
Need further help?
If you would like to discuss how we can assist, please contact us.