When someone passes away, it is common to assume that you’ll need to go through a lengthy legal process to deal with their estate. This legal process is called probate – and while it can sometimes take a long time, in many situations, it can be avoided.
Here we’ll take a closer look at what probate is and whether or not you need to go through it. We’ll also see who is responsible for the probate process and whether you are legally bound to do it. Read on to find out more!
What is Probate?
If someone dies with assets, probate is the legal process that you need to go through to take control of those assets and distribute them. The person responsible for the probate process is usually their closest living relative.
The complexity of the probate process will depend on the complexity of the estate. If the deceased only had savings in a bank account, then it would be much simpler than if they had multiple properties, businesses and shares, for example.
It’s generally a three-step process which first involves valuing the estate and paying any tax due, applying for a grant of probate, and then distributing the estate.
When is Probate Required?
There is no exact rule on when probate will be required. If the deceased is the sole owner of a property, then it will most likely be required. If all they had were bank account savings, then it may not be.
Let’s look at when probate isn’t required:
No assets
If the deceased has no assets, then probate wouldn’t be required. Unless there was a will, any personal belongings would be the responsibility of their closest living relative, as detailed in the rules of intestacy.
Minimal assets
If the assets were minimal, probate is probably not required. For savings, this is based on a financial institution’s own rules. For example, Nationwide doesn’t require you to have a grant of probate for accounts that contain less than £50,000. It’s a great idea to contact financial institutions first before applying for probate.
Spouse/Civil Partner
If you die, your assets will automatically transfer to your spouse or civil partner, unless they were jointly owned with someone else. This is commonly seen with properties. If you co-owned your property with your spouse, probate wouldn’t be required, unless there were other significant assets.
Partner
If the only assets in question were jointly held with another person, probate won’t be required. For example, if you co-owned shares with your friend, then they would become the sole owner.
Having a will or not doesn’t impact whether or not probate will be required. For example, the deceased was unmarried, with £100,000 in the bank, and had two children. Even if the will stated that the money should be divided equally between them, probate would still need to be applied for.
In the exact same scenario but with £10,000 in the bank, probate would almost certainly not be required, depending on the financial institution. Other assets, such as a vehicle, can be sold by the beneficiaries, without the use of probate.
Your first step should be to get a list of all the assets that the deceased had. Once you do, you’ll have a clear idea of whether or not probate will be required. If you’re unsure, it’s best to contact the relevant financial institution and check what their probate rules are.
Do I Have to Act If I Am Named as an Executor?
No, you are not required to do so. Whether there is a will or not, you are under no legal obligation to deal with the estate. The only exception is if you have already started to act. Here it may be deemed that you have “intermeddled” with the estate. Put simply, if you start dealing with the estate, you can’t stop.
There are many reasons for not wanting to act as an executor, and you shouldn’t feel guilty about doing so. Your grief may be consuming you, the process can be confusing, or perhaps you didn’t end on good terms with the deceased.
You have a few different options at this point. Perhaps the easiest is letting a family member deal with the estate in your name. For example, you have a child that can help you through the process and help you complete the paperwork.
The legal route is to renounce your right to administer the estate. You can also officially appoint someone else to do it on your behalf. It’s vital to note that this does not affect you being a beneficiary of the will. There is no financial incentive or penalty for acting as an executor or not.
Finally, you can get legal help. Here, you remain the executor but use a solicitor to guide you through the process. You’ll pay the legal costs, but you have the huge advantage of someone else doing the burdensome work.
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