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Wills and probate explained

By Ian Robinson

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Wills and probate explained

Find out what probate is, how wills and probate work together and how to administer someone's estate in accordance with their will.

What happens in probate?

Technically speaking, probate is the business of legally verifying someone's will. But over time, the term has also come to be used to describe the process of administering the estate of someone who has died. The executors named in your will have a duty to deal with your affairs and distribute your estate, in accordance with what's in your will.

If you've been appointed as an executor to an estate, you have to apply for a grant of probate from the Probate Registry. This is a legal document that will give you the authority to deal with someone’s property, investments and possessions.

Need help with probate?

Which? Legal Probate can help you through the entire probate process with comprehensive guidance and one-to-one, expert help from our trained probate specialists for a fixed fee. See probate.which.co.uk or call 01992 825001 Monday to Friday 8.30am-6pm.

What to do when you apply for grant of probate

In order to obtain the grant of probate, there are a number of tasks you have to carry out. These include:

  • Obtaining the death certificate
  • Establishing your authority as the executor of estate
  • Valuing the person’s estate
  • Calculating whether or not the estate is liable for inheritance tax
  • Returning completed probate forms
  • Attending a Probate Registry interview and swear an executor’s oath
  • Paying any inheritance that’s due.

Find out more: Read our step-by-step guide to DIY probate

Dealing with probate when someone dies intestate

In cases where there is no will, or none that is valid, the deceased is said to have died intestate. This applies in about 25% of cases.

Beneficiaries are identified by the intestacy rules, which provide for a surviving spouse or children to receive a specific share of the estate. If there is no spouse or children, the parents or siblings of the deceased inherit.

The estate is administered by a family member, who applies for Letters of Administration, rather than a Grant of Probate. Once these are obtained, they follow the same process as an executor, gathering in the assets and distributing them.

When should you get professional help with probate?

If the will is complicated, or unclear, it might be prudent to seek professional help. That’s partly to make sure you’re protected – if you get it wrong, you could be liable. In any case, you’ll want to respect the wishes of the deceased.

If the will is complex and was written by a lawyer, you might find the language hard to understand too. It might also indicate the deceased wanted assets put in trust, or refer to assets already in trust.

If any beneficiary suffers a loss when the estate is administered due to an error, you could be personally liable as the executor. This might be due to the tax being misunderstood, or assets being divided in a way that leaves someone liable for a tax bill.

It’s also possible to change a will in some circumstances, if every beneficiary agrees to it. This could be to rearrange someone’s affairs for tax purposes. If you want to do this, you’ll need legal help.

Find out more: What to do when someone dies - from planning a funeral to applying for probate and administering an estate.

  • Last updated: September 2017
  • Updated by: Tom Wilson
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