While many founders and business owners will implement succession plans to sell or pass their business to a new generation of owners, sometimes it is clear that you have reached the end of the road and the best decision is to call it a day and close the...
One question which many people ask is ‘what is probate?’
In its simplest form, probate is the process of ‘proving’ the Will in the Family Division of the High Court. The ‘proved’ Will is then accepted as a valid document (Grant of Probate) to which anyone can view (subject to a fee) which enables the Executors named in the Will to administer the estate of the person who has died.
However, whether probate is required or not in an estate depends on the size and complexity of the estate in question. Certainly, jointly held accounts, for example, will generally not require probate to be obtained, as these will automatically pass to the surviving joint holder. Probate, also, will ordinarily not be required to sell a deceased’s motor car, nor will probate usually be required to deal with very small amounts in a deceased’s persons bank account. However, this latter aspect is somewhat ‘muddied’ as the threshold for each bank or building society is different, ranging from between £5,000 and £50,000. So, if an account is held at the bank or building society, the answer here is to enquire as to their specific probate threshold.
Probate will always be needed where a house, or other property, or land, is owned by a deceased. This will be the case whether it is solely owned, or owned by another party, as ‘Tenants in Common’. A Tenancy in Common is where each party holds a definite individual share in the property (as opposed to a ‘Joint Tenancy’ whereby the deceased’s share automatically passes to the surviving co-owner). Probate will also be needed where there is a large amount held at a bank or building society or other institution, but please refer to the previous points regarding thresholds. One bank’s threshold may not be the same as another bank’s threshold. The same can be said for products held at National Savings and Investments. It depends on the product and its value. Similarly, the transfer or sale of shares may also warrant probate, although it may be possible to deal with these assets under a ‘small estates indemnity’. Therefore, if in doubt, double check with the institution concerned.
Probate may also refer to the administration of the estate generally. This is undertaken by the Executors named in the Will and on the Grant of Probate. Administering the estate will consist of, amongst others, valuing the estate, applying for probate, dealing with HMRC and paying any tax due, liquidating the assets, selling a house, paying funeral expenses and other liabilities, settling legacies, and once all the estate administration has been attended to, making final distributions to the residuary beneficiaries. The timescales involved will vary from estate to estate. The very simplest estate may take some 4-6 months to conclude, but for a very large and complex matter, it is not unknown for an estate to take 2 years or more, especially where overseas assets and/or trusts are involved.
Of course, not everyone will make a Will. In these situations, the deceased person will die ‘intestate’. Their estate is then dealt with under the ‘Rules of Intestacy’ such rules being set down in law. Essentially, the next of kin will ordinarily inherit the estate, but be careful, as a spouse or civil partner may not automatically inherit everything…
Therefore, in summary, it is best to make a Will.
Our legal advisors here at Crombie Wilkinson will be more than happy to assist you with any queries you may have concerning this topic. Please feel free to contact a Probate Solicitor in our Private Client Team in York, Selby, Malton or Pickering.