Probate Explained

As defined in the government website for the legal right to deal with someone’s property, money and possessions (their `estate’) when they die is called “applying for probate”.

Before the next of kin or Executor named in a will can claim or dispose of any of the deceased person’s assets they may have to apply for probate. Probate is required when the deceased owns property, in the form of houses, buildings or land, or when a bank or other financial institution requires a Grant of Representation in order to release funds it holds in the deceased’s name.

If the deceased has left a will, a `grant of probate’ will be issued and the next of kin or Executor can begin dealing with the deceased’s assets, in accordance with the terms of the will.

If there is no will (known as `dying intestate’), usually the next of kin must apply to the Court to be the `administrator’ of the estate`, and ‘letters of administration’ will be granted to prove they have the legal right to deal with the estate. Applicants to be the `administrator` would usually be the spouse, civil partner or child. Even if the applicant was separated from the deceased at the time of their death, so long as they were still married or in a civil partnership they could still apply. However, you cannot apply if you were the partner of the deceased but were not their spouse or civil partner when they died. Nor are you automatically entitled to any of your partner’s estate.

When a person dies without leaving a valid will, the beneficiaries of the estate are decided by laws referred to as the Rules of Intestacy. These rules can appear harsh, as they make little allowance for modern family relationships and recognise only the next of kin as those eligible to administer and benefit from the Estate. This means that very often in Probate cases where there is no will, unmarried couples and unregistered partners, step children, or step brothers and sisters will inherit nothing from the Estate. In these cases it is also essential to correctly identify Estate administrators and beneficiaries, as an Estate Administrator can be held financially responsible for any loss brought about by their actions, even if it is through genuine human error.

However, if the deceased has jointly owned property, money or shares then probate may not be required, as ownership automatically passes to the surviving owners.

The Probate process itself can involve complex legal, financial and taxation issues. These may involve identifying and valuing the deceased’s assets, submitting an Inheritance Tax return, selling the assets and paying off any debts or liabilities, paying any Inheritance or Capital Gains Taxes due, and the preparation of Estate accounts prior to distributing the remaining funds.

While it is possible to administer an Estate yourself it is clear that this can be a time-consuming and complex process. Bretherton Law’s expert Probate Law team can help you share the burden at a difficult time, and take responsibility for dealing with Inheritance Tax, Capital Gains Tax and Income Tax, as well as the legal responsibilities involved in liquidating and distributing the Estate’s assets.

Bretherton Law have been helping the people of Hertfordshire to manage their affairs for over 50 year, and we have built an enviable reputation for our professional service and honest advice. Our expert team can guide you through the Probate process, as well as helping you to draw up a Will, dealing up with Lasting Powers of Attorney, Court of Protection, or Trust services on your behalf. Contact us on 01727 869293 or use the contact form below. 

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