There is a lot of confusion that arises when a family member dies. One such question that is on a lot of people’s minds is the Will-Probate difference.
The question is, how can you tell the difference between wills and probate in the first place? What is the purpose of each of these legal terms? Below, we’ll take the time to:
- explain the differences as it pertains to a deceased person;
- how they pertain to a legal proceeding;
- offer guidance on how they apply to estate administration.
What is a Will?
In the UK, a Will is a legal document that you create and keep updated throughout your lifetime in the event of your death. Its purpose is to insist parties respect your wishes when it comes to who does and does not get left your estate.
In the UK, you do not legally have to leave your dependents in your will.
Whether you do this for personal or practical reasons is up to you. A dependent can later contest your will if they prove financial need. But for the most part, all Wills command respect and those you want to leave your estate, also known as your Beneficiaries, receive what you give them.
You can do more in your will than just name your surviving spouse and Beneficiaries as well. For example, you can also name who you wish to execute your Will, known as the Executor or administrator. You can also name the legal guardians for your dependent children, as well as funeral preferences. It all depends on the grant of probate, of course, and its signoff from legal authority after the person dies.
What is Intestate?
Intestate is what happens when you die without a valid and legal will. When this happens, it is the law that decides who amongst your family members receives your estate. This could also mean portions of your estate go to the government. Having a Will, therefore, is imperative for the law to respect your wishes.
What is Probate?
Probate is part of the process after you die: that said, it is still quite different from a Will. Probate is the legal process that follows your death and often occurs before your Estate is managed. In short, the purpose of the Probate is to appoint Personal Representatives to deal with your assets.
In turn, these personal reps have their own responsibilities.
- Finalise all bills and pending accounts;
- Pay off all outstanding debts;
- Assume responsibility for bank accounts;
- Sell or transfer property as required or as written out in the Will;
- Gather assets from different locations to execute the Will;
- Liquidate if necessary the estate into monetary value;
- Calculate and pay the remaining income tax;
- Tabulate and pay the Inheritance Tax (if applicable), and;
- Execute the will and distribute the estate to the beneficiaries.
In short, Probate is the process where someone applies to gain control over the deceased’s (testator’s) assets for the purpose of finalising their debt and executing their Will. Accordingly, if the testator names an Executor in their Will, this person will often need to apply for Probate within a year.
There can be cases where someone else wants to contest probate, in which case the matter will need to be settled legally. We can help you win your right to execute your testator’s will. Contact us today to see if you have a case.
When Does Probate Become Necessary?
Probate is necessary in most cases, regardless of whether there is a Will or not. They are not necessary for two specific scenarios.
- A spouse is alive, and they own the assets jointly with the testator.
- Comparatively, the testator had a small estate.
Otherwise, you will need Probate to administer the estate. If you do not do so, then the estate will remain in limbo as a result. You will need to apply to become the Probate through the government’s website. We can help you through this process, however.
Moreover, we’ll deal with the Government as well as the HMRC on your behalf.