Explaining Probate: Define an Essential Inheritance Matter

Explaining the Probate Application

When a person dies, it is necessary by law that all of their personal affairs must be put in order. Below are our thoughts on probate define, as part of our guidance on what commonly happens with a probate challenge.

This is ‘Probate’ and includes ensuring that their estate receives finalisation. The person who finalises the estate is their Executor. However, the executor only has the right to access the testator’s estate once they apply.

In this guide, we will explain what probate is. Especially:

  • the grant of probate;
  • what the purpose of it is;
  • how long the probate process typically takes in the UK and;
  • why probate is necessary to deal with the deceased person’s situation.

Probate: Define why it’s necessary

Also known as ‘Confirmation’ in Scotland, probate definition is the legal process of executing a will and settling a testator’s* estate.

It is important to know that the term ‘estate’ does not simply refer to any property the testator owns. It also includes:

  • making an inheritance tax return to HMRC and paying the tax due;
  • their possessions;
  • their cash holdings and; any land they may own, as well as;
  • any financial obligations they have, including the repayment of loans, child maintenance and the like.

The purpose of probate is to give the executor the legal right to handle the testator’s estate and to make executive decisions on their behalf. Another term for this type of person is Personal Representatives.

Probate: Define What It Does

Probate allows the personal representative to do any of the following:

  1. Finalise all bills and close the testator’s accounts;
  2. Settle debts they did not pay in full yet;
  3. Sell or transfer property the testator owns;
  4. Liquidate or gather assets in all their forms;
  5. Calculate and pay the Inheritance Tax;
  6. Pay any remaining income tax (if applicable);
  7. Distribute the estate as the will outlines, or as the government decrees.

Who Can Apply?

The person who serves as the executor of the will is most often the one who applies for Probate. Executors tend to gain their role through declaration in the will.

However, the situation might arise where the Executor dies. Accordingly, an Executor might also not get a declaration in the will. Moreover, there might not be a will in the first place.

In these cases, the following people can apply for probate instead:

  1. The testator’s surviving spouse. Additionally, this can be done regardless of if the couple is in separation at the time of death.
  2. Also, the children of the testator can apply;
  3. Finally, any other close family members.

If you believe the person who applies for probate is not fit to administer the estate, you can contest it. You can also contest a will if you have a valid reason, but this should be done with the advice and aid of specialist solicitors.

You should be aware though of what happens if you contest a will and take it to court without a reasonable chance of winning. Accordingly, there is a good chance you will be wholly liable for the cost of taking such action. Moreover, that includes the costs of the other side and the court costs.

Probate: Define Who Can Apply

The person who has the right to apply for probate^ can either:

  • apply online through the government website or;
  • hire probate solicitors to do so on their behalf.

If there is no will, the process is similar, but instead of probate, you would instead apply for Letters of Administration. There’s also the matter of an intestate estate, in which the will parties present to the probate court nevertheless earns an invalid declaration.

When you apply, you will need the following information to send in either online or through post as part of the process of administering:

  1. The original Will;
  2. The original Death Certificate or Interim Death Certificate;
  3. Confirmation of an estimate of the estate’s value, critical for estate planning, real estate issues and more.

You will also have to to fill out a few forms. Which forms those consist of in particular will depend on which nation within the UK the testator lives.

For example, suppose the testator lives in England or Wales. In that case, you’ll need to fill out the PA1P application if they have a will. If there is no will, instead it will be the PA1A application.

In Scotland, these forms are officially the C1 and C5 documents.

Once you apply, you will need to send the original documents to the local Probate Registry. You’ll also send along:

  • a fee of £215 if the estate’s potential worth is greater than £5,000.
  • However, if the estate’s potential worth is under £5000, there is no fee to pay.

Probate: Define when it’s not necessary

Probate isn’t necessary when all of the testator’s assets are in a joint account with their living spouse. Also, probate is not necessary if the estate left behind is nominal, or the testator did not have any assets to speak of.

How we can help with probate

As always, legal matters that occur when applying for probate and executing a will are best done with the help of solicitors.

At The Inheritance Experts, we work with law firms who specialise in handling wills and probate. For probate purposes, this means they can effectively support and assist you through all stages of the process.

If you need any help navigating probate, do not hesitate to get in touch with The Inheritance Experts via the contact form on our website or by calling 0161 413 8763.

*A testator is another way of saying a deceased person for whom the will is made for.

^For example, those who are named by either the executor or a close living relative.

Three Legitimate Will Disputes

The majority of wills and estates receive proper managerial touch and execution. In essence, wills (according to the law) stipulate exactly what the late party wants to happen to the various parts of their estate. However, legitimate will disputes are a reality of handing out the contents of an estate.

Accordingly, a will can be improper occasionally. Alternatively, reasonable suspicions could occur alleging legitimate will disputes.

  • For instance, someone may face accusations of tampering with the will.
  • Also, the will is allegedly not legitimate.
  • Possibly, the deceased dealt with pressure to write the will in a certain unfair manner to their beneficiaries.

Therefore, there can be a number of legitimate will disputes. It is also worth remembering that, in the majority of cases, there is a six-month period where any disputes must be filed, although there are different timescales depending on your reasons for disputing a will.

In this guide, we will outline three of the main reasons why a will dispute may occur.

Legitimate Will Disputes

1. An invalid will

There are strict guidelines in place that cover the legal and procedural requirements of a legally binding will. One of the more common will dispute cases stem from claimants who believe that the will is invalid.

Reasons why a will can be invalid include:

If you want to dispute the validity of a will, you must provide evidence to support the claim. Regarding testamentary capacity, it’s up to the estate executors to establish the testator’s mental capacity. If the will is declared invalid, then the rules of intestacy take effect.

2. Claims of dependency

The Provision for Family and Dependants Act 1975 covers those instances where a dependent has not received sufficient provisions in the will. For instance, consider if the testator was providing for someone financially up until their death. In that situation, it’s possible to claim that this financial providence must continue after they have died.

In most dependency claims, the claimant is a spouse, a child, a cohabitee or a close family member or friend. Courts will consider several factors.

  • Firstly, the age of dependents.
  • Next, the duration and nature of the relationship with the deceased
  • Finally, their expected quality of life if the testator were still alive.

Courts may then award a lump sum or a series of maintenance payments.

3. Additional legitimate will disputes

If the above factors are not relevant, a will can still be changed if a claimant believes that an original will has been lost, or if property and finances have been disputed by another potential owner. These instances will require the claimant to provide evidence to start their claim.

How we can help

It is essential that you seek legal representation from a solicitor who specialises in will disputes as early as possible. Because time limits apply (depending on the type of dispute that you wish to make), the earlier that you begin the process, the more likely that you avoid unnecessary complications to the process.

At The Inheritance Experts, we work with specialist law firms who have a proven track record in helping people when they want to dispute a loved one’s will. This means they are well-placed to help you get the proportion of the estate you are entitled to.

If you believe you have grounds to contest a will and want to know if you have a realistic claim, do not hesitate to get in touch with The Inheritance Experts via the contact form on our website or by calling 0161 413 8763.

How to Proceed if Your Loved One Didn’t Leave a Will

How to Proceed if Your Loved One Didn’t Leave a Will

In most cases when a family member dies, they leave their wishes on how to divide up their estate in a will. When they don’t leave a will, however, intestacy rules take over.

This will should also contain who they name as their executor. The executor will then need to apply to begin the process of Probate from the Government. With that, they have the right to settle the testator’s affairs and execute their will to the best of their ability.

Intestacy means no will to execute

However, if there’s no will to execute (known as ‘dying intestate’), then the process faces complications. Loved ones might have inheritance disputes, at which time hiring contested wills and probate solicitors can help you receive what you deserve from your loved one’s estate.

What Does it Mean if Your Loved One Didn’t Leave a Will

In short, if a family member doesn’t leave a will to dictate the affairs of their estate, the legal system takes over.

(On this, it’s also worth noting that the rules on intestacy changed at the start of February 2020).

This can, at times, mean that those that the deceased would not have wanted to receive anything from their estate will do.

It is also worth remembering that the laws as to who will receive the estate of someone who died intestate differ between England, Wales, Scotland and Northern Ireland. You will need to contact a solicitor to see if you have grounds for contesting a will as laid out by the law in the country you live in. If the testator lives in a different country from the UK though, the intestacy laws of that country will apply.

What Steps Should You Take for Intestacy

If the testator dies part of intestacy, you will need to follow these steps:

  1. Apply to be the administrator or executor of the testator’s estate. This is the same as applying for Probate, except you will need to fill out a different form when applying.
  2. You will need to prove a close relationship, for example, a spouse or child.
  3. If your application is accepted, you will receive what is known as “letters of administration”. These will give you the right to deal with the testator’s estate.

There must be a legal connection between the deceased and the person who becomes their administrator. For instance, think of a partner who lives with the testator for decades, but doesn’t marry them. That partner doesn’t have the right, for example.

However, a separate spouse still wed to the testator does. This is arguably an area of the law that needs updating in order to reflect today’s society and modern relationships.

If you are a long-term partner of the testator, contact a specialist solicitor. Accordingly, you can then fight the ruling and make a valid claim towards your dependency.

What Happens if There Are No Close Living Relatives?

If the testator does not have a spouse or direct relatives, then their estate will belong to the Crown or government. This is done under the law Bona Vacantia.

How we can help

At The Inheritance Experts, we work with specialist law firms. They have a proven track record helping people when a family member dies intestate. As a result, they’re capable of helping you get the proportion of the estate you rightfully deserve.

Do you think you have grounds to contest a will? Do you want to know if you have a realistic claim? Then don’t hesitate to get in touch with The Inheritance Experts. Be sure to do so via the contact form on our website or by calling 0161 413 8763.

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Why you should draw up a will

Ah, Wills: it may seem like something you don’t need to do for a long time. Yet there are multiple reasons why you should consider drawing up a will now.

For example, if you have children, a will can clearly state who your child(ren)’s legal guardians would be. Also, who you would want to take care of them in the event anything were to happen to you.

Similarly, you can also specify how those guardians bring up your child(ren) too. For example: should they go to religious schools for their education? Will the child(ren)’s grandparents have access rights?

In addition, you can also use your will to specify what your wishes are for your funeral. This does not simply have to be whether you choose burial or cremation. It can also include

  • any songs to play during the ceremony;
  • where you like the ceremony to be held, and;
  • what you would like to happen to your ashes if you do choose cremation.

Other things you can do in a Will

Some people also use their will to specify that they want to donate their body to a medical research facility, such as the UK Biobank. Or they specify that they wish to donate their organs, too. On this, we would say that you should speak to your friends and family about your wishes too though.

Furthermore, by drawing up a will, you can also state clearly who you want to get what aspects of your estate. To be clear, a person’s ‘estate’ does not refer solely to any property they own, such as a house or a flat, but also all of their possessions and any money, including the contents of ISAs, saving bonds and any investments.

Decide on property division through Wills

Therefore, through Wills, you can leave your property to your direct next of kin. That might mean your spouse or your child(ren), while also leaving individual possessions to specific people inside and outside of your family.

For example, say you have an ornament in a display cabinet that your best friend admires. With a will, you could henceforth specify that they get it once you pass away. Similarly, you might share a hobby with one of your grandchildren (stamp collecting, perhaps). Accordingly, your will can specify that he/she gets your collection when you pass away. Rather than leaving it up to the frailties of common sense to prevail after your death.

On this, it is worth noting that, if you were to die intestate, the rules regarding statutory legacy changed recently.

It makes sense then to draw up a will. It ensures they divide your estate as you wish; therefore, you’re also helping to squelch the possibility that the division of your estate leads to a dispute following your death.

Accordingly, we’d suggest that it will also help those you leave behind. Rather than having to divide your belongings and the potential squabbles this could cause, they can instead focus on grieving your passing.

What you should do about Wills

In the first instance, make sure that you get a will drawn up! Depending upon the complexity of the will you want to draw up, this needn’t cost the earth either. In fact, a simple will could cost you from around £80 to have drawn up depending upon the firm you use.

But a specialist will involving the creation of trusts, overseas properties, etc, cost over £500 to draw up. On this, please note that national laws may apply if you own land and property in other countries. For example, if you own land or property in Italy, Italian law states that this passes automatically to your children upon your death.

However, say one of your family members dies without having left a will (known as ‘dying intestate’). Or you feel that a family member’s will treats you unfairly and the estate is now in dispute. It’s a good idea to speak to someone with experience in the areas of contesting a will or contesting probate.

More About Us

At The Inheritance Experts, we work with specialist legal firms who have a proven track record in handling wills and probate matters. This means they are able to help you get the proportion of the estate you deserve. After your initial consultation with our advisors, which is done on a free no-obligation basis, we will match you with the firm that best suits the circumstances of your claim.

If you believe you are due a portion of an estate and want to know if you have a fair and realistic claim to some or all of it, do not hesitate to get in touch with The Inheritance Experts via the contact form on our website or by calling 0161 413 8763.

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