What Is Probate And When Is It Needed?

Losing a loved one is an emotional and overwhelming time and dealing with their estate can be stressful. 

In short, ‘Probate’ is the legal right to deal with someone’s estate (their property, money and belongings) when they die.

The first step in the probate process is to check if a valid Will exists. This may be as simple as looking through the deceased’s personal papers or contacting their solicitor to ask if they store a Will for the deceased. 

If the deceased had a valid Will you must then determine if you are the person appointed to deal with the estate – have you been appointed as their Executor?

An Executor is the person who is given the role of sorting out the estate. 

Unless an estate is very small or made up of only jointly held assets that have passed via survivorship, an Executor must then apply to the Probate Registry for what is known as a Grant of Probate – a document confirming the Executor’s authority to deal with the estate. 

If no valid Will was in existence, the next-of-kin would apply in the same way but for a document called Letters of Administration appointing them as an Administrator.  

When Should You Seek Probate Legal Advice? 

We recommend Executors and Administrators obtain legal advice and support from a probate solicitor when dealing with an estate, especially when an estate is complex. 

It may be particularly important to instruct a solicitor in the following situations: 

1. Calculating inheritance tax
2. The terms of the Will are not clear
3. The person who passed away left money or property in trust 
4. It is likely someone will challenge the Will
5. The estate is due to pass to children under 18
6. The person who passed away owned a business

1. Calculating Inheritance Tax

An Executor or Administrator is required to value the Deceased’s assets and liabilities and accurately report to HMRC within strict deadlines. 

The Executor or Administrator will be personally liable for any inheritance tax due and therefore it is advisable that they obtain legal advice from a solicitor. A solicitor can ensure all available inheritance tax allowances have been awarded to the estate.

2. The Terms Of The Will Are Not Clear

Perhaps the deceased wrote their Will themselves or instead of seeking help from a solicitor, they paid someone to write their Will online, meaning that the Will hasn’t been drafted clearly or contains mistakes.

Aside from the numerous risks of online Will writing, an online Will might not be fit for purpose and a badly drafted Will can actually cause more problems down the line. 

You should always seek legal advice if the terms of the Will need to be clarified as an Executor or Administrator can be held personally financially liable for mistakes made in the distribution of the estate.

3. The Person Who Passed Away Left Money Or Property In Trust

There are a variety of types of Will trusts, which can both simplify and complicate the structure of a Will. 

Trusts are a useful mechanism for passing on property on death whilst still exercising some control over its use. 

However, trusts can be very complex and it is important to seek support from a solicitor.

4. It Is Likely Someone Will Challenge The Will

Disputes can make the process of dealing with a Will not only more complicated but also more stressful. 

Wills can be challenged for a number of reasons. Lack of capacity when making the Will, lack of valid execution (for example the Will may not have been witnessed by two independent adults), lack of knowledge and approval, undue influence at the time of making the Will or fraud/forgery are just some challenges to a Will. 

Specific categories of people including a spouse or civil partner, former spouse or former civil partner or a child can also make a claim against the estate if they feel they have been left insufficient provision in the Will. 

If anyone is likely to dispute the Will, then, it’s best to seek advice from a probate solicitor.

5. The Estate Is Due To Pass To Children Under 18

While it’s possible for minors (anyone under the age of 18) to be beneficiaries of an estate, generally speaking, they are unable to accept their inheritance until they turn 18.

As such, their inheritance will be held in trust by trustees named in the Will until the beneficiaries reach the age of 18.

Often, the Executor of a Will will also be appointed as the Trustee but this is not always the case.

6. The Person Who Passed Away Owned A Business 

There are numerous types of businesses, with varying degrees of complexity, and legal advice when dealing with businesses in an estate is recommended.

Generally speaking, the legal fees can be paid for by the estate in question.

How We Can Help 

At Harding Evans, we understand that losing a loved one is a difficult and emotional time, so we aim to make the probate process as straightforward as possible.

Our dedicated probate solicitors have years of experience and offer an initial 30-minute free consultation at both of our offices in Cardiff or Newport.

Get in touch today to discuss the probate process.