A Beginners Guide to Probate Law

Nobody likes thinking or talking about laws that are related to death. However, it is usually of great advantage to make sure that we possess at least a basic understanding of these laws, so that if we are ever faced with them, we are prepared for the procedure which will follow.

Probate law is a law that will become relevant to almost everyone at some point, should a close family member of theirs pass away. Probate essentially refers to the person or persons that have the authority, by law, to administer an estate to its beneficiaries.

In the wake of a death probate will, in most cases, need to be obtained.  This involves filling in a number of forms. The nature and complication of the forms will vary depending on whether or not the deceased left a will. However, in most cases it is wise to seek the assistance of a solicitor, because the forms can often be rather difficult to complete, and mistakes could be costly. Although the probate fees charged by specialist solicitors can be very high, probate fees can be kept to a minimum by choosing a solicitor or firm that will offer a fixed rate for their services.

However, there are some circumstances in which probate will not need to be obtained - if the total value of the estate is below a certain threshold and when a property or bank account is held in both names. In the instance that the deceased held a joint bank account with their spouse or business partner, it is usually sufficient to simply supply a death certificate, in order for the monies within to be transferred to the joint holder.

The person responsible for applying for probate is usually the executor. The executor will be named in the will as the person the deceased has chosen to be responsible for their finances, following their death. If there isn’t a will, it is the next of kin that is responsible for applying for probate.

Before an application for probate can be made, the precise value of the deceased’s assets needs to be determined. This will involve getting formal evaluations for any property, as well as any items of significant monetary value such as cars, antiques and jewellery. The total amount held in all banks, savings accounts, shares and certain insurance policies will also need to be ascertained.

However, it is also important that any debts owed are calculated. This is because they may affect the amount of inheritance that is to be paid, and you want to be absolutely certain that you are not paying more tax than is necessary. You also want to consider if you want to sell the house due to bereavement. 

If there is no will, the matter gets more complicated, since it needs to be established who should be entitled to a portion of the estates value. Again, it is usually worth hiring a professional to deal with these matters, not just because they can often be very difficult legal matters, but also because the period following a loved one’s death is incredibly sad and stressful, and it is easier to just have to worry about, rather than all the complicated matters involved in obtaining probate.

The desired end result is for the executor or next of kin to have in their possession a ‘grant of representation’. This is an order of the high court that states that a grant of probate has been obtained, along with the name of the representative who is able to distribute the estate to the beneficiaries, as well as paying any outstanding debts.