Do I need probate if there is a will?
The passing of someone you know can provoke a range of emotions, but it can also raise a series of legal questions. Often those questions will centre around what happens to that person’s assets, such as any money they hold in their bank accounts, or any property they owned, when they are no longer with us. That is where probate (may) come in.
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What is probate?
Probate is the term given to the legal right to handle someone’s estate after they die. An estate is any combination of finances, property and other assets that they owned. It extends to smaller items such as artwork or jewellery, in addition to monies that may be owed to that person by others. For example, if they provided a loan to an acquaintance that is yet to be paid back, that would be considered part of their estate.
The reverse is also true, as any debts left by the deceased pass to the estate. This may include unpaid loans, a bank overdraft, a credit card debt or a mortgage(s).
How does a will factor in?
If the person who has passed left a will (or carried out estate planning) with a lawyer before their passing, they may have designated a representative known as an Executor to handle their estate. Often that person will be a family member, but it could also be a professional such as an accountant or solicitor. They are known as an executor of the estate.
If there is no-one appointed then one of the beneficiaries may be ab le to be nominated as a Personal Representative.
When is probate required?
If the deceased person’s estate includes any kind of property such as their family home or business premises, probate will usually be required. That remains the case even if someone has been specifically named in the will.
When isn’t it needed?
Probate is not required if the deceased person did not own property or if the property is jointly owned by other parties such as their spouse.
Probate also is not required is the estate is very small, with little cash or personal possessions to manage, withdraw or liquidate. If the estate is insolvent due to the amount of monies being owed superseding the cash and assets available, probate may not be necessary, but if it is there is no cost.
Should you seek legal advice?
Managing an estate can be a complicated undertaking. Certain circumstances add to that challenge – for example, if the person who has passed away has a child under the age of 18 or if assets have been left to a trust. If someone chooses to dispute the will, things can become more complicated still.
It is always advisable to seek legal guidance to ensure that you are acting in accordance with the law and meeting your obligations as executor of the estate.
Our Private Client Team offer a professional and discreet service. We are here to help in pre- and post-death matters regarding estate planning, wills, probate and estate management.