In simple terms, probate is a financial and legal process designed to deal with the estate of a person who has died. This typically includes property, possessions and money. Wills, on the other hand, are legal documents that allow people to state how they wish their assets to be distributed after they die.
In this in-depth guide, we fully explain probate, when it is necessary and whether wills play a role in the process. We’ll also provide practical answers to commonly asked questions regarding wills and probate.
What is probate?
In England and Wales, the word “probate” describes the legal and financial processes that deal with a person’s assets upon death. The process is used to prove if a will is legally valid and confirms who has the legal right to administer the estate of the deceased.
Before an executor, surviving partner or relation nominated in the will can interact with the assets of the person who has died (for example, claim, sell, transfer, or distribute) they may need to apply for a legal document called a grant of probate.
How long will probate take?
The process of probate typically takes between nine to 12 months in total to complete. However, this can vary considerably depending on multiple factors.
When is probate required?
Statistics show that one in every two individuals require probate after a person passes away. Whether probate is required is determined by what the deceased owned at the time they were alive. For instance, if they had sole ownership of a property, or possessed other assets of high value, it is likely that those managing an estate will require probate to deal with how it is distributed upon death.
Is probate needed if there is a will?
Whether probate is necessary is not impacted by the presence of a will. Instead, it is determined by the financial circumstances of the person who has died. Regardless of whether a will has been written or not, the probate process is similar, though the terminology involved differs.
What are the rules of probate?
The rules of probate dictate that it is a necessary process under certain financial situations. These include when the deceased leaves behind a minimum sum of 20,000 in a single bank account, as well as investments like stocks and shares and specific insurance policies. It also applies when the person who has died has land or property as tenants in common or in their name and when the estate that they leave behind is valued over £5,000.
Who normally applies for probate?
If the deceased has left a legal and valid will, the document will name one or sometimes more executors. The responsibility of applying for probate falls to the executors. In situations where no will is made, special inheritance rules apply, referred to as the “rules of intestacy”. They are designed to decide who has the responsibility of getting probate.
How much money can you have in the bank before probate?
Just how much money can be in a bank account before probate becomes a requirement varies between institutions and can range from between £5,000 and £50,000. Some financial institutions may release available funds without probate when an account balance falls below their set threshold. However, others may still insist on a grant of probate before they release the money.
Do you need probate when you have joint assets?
If the deceased owned joint assets, like a house with joint tenants or a joint bank account, these would pass on to the surviving co-owner via the “right of survivorship”. However, the co-owner must produce a valid death certificate to transfer the asset legally and formally into just their name. Probate typically isn’t required to perform this process.
If you are named in a will as an executor, do you have to serve?
Multiple options exist if you are named as an executor but don’t want the duty. You can give up your right to act as executor or nominate another executor named choosing to reserve your power. This allows you to re-join the probate process later. You can also opt to instruct a qualified probate solicitor to complete the process for you.
Do you need wills and probate solicitors in North Wales?
At Bennett Smith Solicitors, we are specialists in wills and probate, as well as family law. Operating from our offices in Bangor and Gwynedd, we are perfectly placed when you seek a face-to-face consultation and wills and probate advice in North Wales. Get in touch with our dedicated team of solicitors today for assistance.