The definition of Probate
The definition of probate is the legal proving of a will. Applying for probate is the legal process of making an application to the Probate Court for a ‘grant of probate’ or when there is no will ‘letters of administration’. You need a grant of probate in order to pass the deceased’s property and other assets to their chosen beneficiaries as stated in their last will and testament. When there is no will the law decides who has the right to inherit by placing any potential heirs into an order of priority known as the rules of intestacy.
When someone dies, their property will be distributed to their beneficiaries after probate has been granted and at the end of the administration of the Estate. The administration of the estate is the process in which probate is applied for. The process is generally overseen by an executor if there is a will. If there is no will it is overseen by the next of kin who has agreed to act as the administrator of the estate or by a court (and a court appointed personal representative)
An executor is the person designated to administer the estate, this person is also known as the personal representative. Most jurisdictions require that the executor post a bond to protect and hold the assets of the estate.
Probate involves identifying and listing the deceased person’s property and assets, accounting and appraising the estate, and then paying taxes and creditors with the deceased’s assets.
When there is a valid will the estate will be distributed according to the deceased’s wishes as stated. When there is no will state law determines rightful beneficiaries and how much they should receive.
Having a will, does not mean probate is unnecessary. The definition of Probate is to ensure that the will is valid and that the executors have the right to access the deceased’s assets in order to distribute them. Although having a will does make the process simpler, probate is still required for any assets in the deceased’s sole name.
Property that was owned in the deceased’s sole name or as tenants in common cannot be transferred to the beneficiaries without a grant of probate, therefore you would not be able to sell it. Institutions where the deceased held assets in their sole name will not release those assets until they have seen a grant of probate, therefore you would not have access to them. Property or assets held in joint names such as the proceeds of life insurance policies, retirement accounts, and annuities pass to the surviving joint owner or the named beneficiaries without the necessity of probate.
If you are the executor of an estate that you believe is subject to probate give us a call on 08007318722 to speak to one of our probate specialists for a fixed fee probate quote or send us an inquiry via our website.