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A Quick Guide to Probate
What is Probate?
Probate is the term used for the application made for permission to deal with the estate of someone who has died. The Executors of a Will apply to the Court for permission to allow them to legally deal with the assets of the Deceased. The division of the Court is the Probate Registry.
What are Executors?
Executors are the people appointed by the Deceased in his or her Will to administer the Will and the wishes of the Deceased. The Executors are responsible for making sure the terms of the Will are implemented, including applying for a Grant of Probate, and then distributing the assets of the Estate once any debts have been paid. The Executors can do this themselves or appoint a solicitor to do it for them.
When does an Estate require a Grant of Probate?
There is a financial threshold of £5,000. However, if the Deceased has left less £5,000, but the Deceased has left stocks and shares, property (unless it transfers automatically) or certain insurance policies, then Probate will be required.
When does a property transfer automatically?
Take an example of a husband and wife who jointly own their home. If the property is held as “Joint Tenants”, the property automatically transfers to the surviving spouse outside of the Will. However, if the property is held as “Tenants In Common”, a Grant of Probate is required. This is because the Deceased's share does not transfer automatically when the property is held as Tenants in Common.
So what happens if there isn’t a Will?
This is called intestacy. In these types of matters, an application is make for a Grant of Representation (this is like a Grant of Probate, but relates to cases where there is no Will – the terminology changes). The same £5,000 threshold applies though, so if there is less than £5,000 left by the Deceased and any property transfers automatically under the “Joint Tenants” principle outlined above, the Grant of Representation is not required.
How is the Estate divided up on Intestacy?
This is worked out under the rules of intestacy, which are set out in the Administration of Estates Act 1925. The distribution is dependant upon who survives the Deceased, for example, a spouse, children, brothers and sisters. As an example, if the Deceased left a wife and a child, the wife would take the personal “chattels” (i.e. personal property), £125,000 absolutely and a life interest in half of the remainder. As for the balance, this would pass to the child, often on trust. It is not straight forward, so take legal advice.
How the Estate is divided on intestacy is one of the main reasons why people make a Will because sometimes the rules of intestacy do not match their wishes. It can also lead to a financial headache for the surviving spouse – so it pays to make a Will.
Can Bradshaw Hollingsworth help with probate matters?
Yes we can. We regularly assist Executors applying for Grants of Probate. We recognise that it is a difficult process and we aim to guide you through it professionally and efficiently.
If you would like any more information about how to deal with an estate of someone who has died, including applications for Probate, please contact Hema Patani or Greg Hollingsworth on mail@bhlaw.co.uk or by telephone on 0116 204 2500.
Bradshaw Hollingsworth provide specialist legal advice in the areas of Employment Law, Litigation, Commercial, Insolvency, Debt Recovery, Wills & Probate and Property, including residential conveyancing, house sales, house purchases and re-mortgages. For more information about our services please contact Greg Hollingsworth of Bradshaw Hollingsworth Solicitors, 19 New Walk, Leicester on 0116 204 2500 or by email at greg.hollingsworth@bhlaw.co.uk.
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