What is probate?
Based on the law in England and Wales this is the legal term given to the process to be followed when someone dies, it is normally undertaken by the executor of the will.
The Probate Registry gives the executor a document called a Grant of Probate which is a questionnaire listing the deceased assets and family members. It needs to be provided along with the death certificate.
Probate is required:
The time taken for probate to be completed depends on the complexity of the case. It is normally between 3 to 12 weeks.
It is important to make a will
Introduction
"The lack of money is the root of all evil” ~ Mark Twain.
You can see from the previous case studies that the expression of wish form is not binding on the trustees and if a will exists it should be taken into account although, it is also not binding.
If a will does not exist then the estate is subject to Intestacy Rules that set out an Order of Entitlement and who can apply for probate. The person applying is known as the Administrator and the legal document is known as the Grant of Letters of Administration.
In Scotland the position is different and probate is called "confirmation”.
Many people think that it is not important to have a will but consider the following scenarios.
I don’t need a will - 1
"I don’t need a will, the family will take care of my assets when I die.”
A member dies leaving 5 children, 4 of which live outside the UK.
Without the others knowing, the son living in the UK takes out a grant of letters of administration to the estate.
He subsequently empties his mother’s bank account and spends it.
Consequence of not having a will in place - 1
The other 4 children are powerless to stop this as no will was made appointing executors.
I don’t need a will - 2
"We are living as common-law husband and wife so I don’t need a will as she will get everything when I die.”
Tony and Cheryl are a happy young couple with a 3 year old daughter. They plan to marry one day but haven’t got around to it yet. Tony is the sole financial provider and gives Cheryl money every week, they have their own bank accounts.
Tony dies suddenly in a car accident.
Consequence of not having a will in place - 2
Under the rules of intestacy Cheryl is not entitled to any of the estate as they were not married.
Tony’s bank account is frozen.
Their 3 year old daughter inherits everything including the home and all the money but won’t be able to access it until she is 18.
Cheryl has no option but to make a claim against the estate – effectively claiming against her own daughter.
This is a costly process.
