Probate is a term you’ll often hear used in discussions about estate management, but few people fully appreciate what the term means and, more importantly, why it’s necessary at all.
For clarity, probate is the name for the process whereby the legal title of property from the estate of a deceased person is transferred to his or her proper and rightful beneficiaries. The actual term ‘probate’ itself refers to a proving of the existence of a valid Will, or determining and proving one’s legal heirs if there is no there is no valid Will in place. In the UK a decedent cannot legally retain property, so probate is the process which determines who inherits the deceased’s property.
Why is probate necessary?
The primary function of probate is to transfer the title of the deceased’s property to the heirs and/or beneficiaries. Under normal circumstances probate would generally not be necessary if there is no property to transfer. However, another equally important function of probate is to aid the collection of any taxes due because of the deceased’s death or the transfer of property. The probate process also provides mechanisms for payment of outstanding estate debts and taxes, for setting a deadline for creditors to file claims to ensure that the heirs or beneficiaries will not be hounded by unpaid creditors indefinitely, and for the distribution of the remainder of the estate to the rightful heirs.
In normal circumstances probate is required before a deceased’s property can be legally distributed; however, in the case of smaller estates a less formal procedure is followed, albeit still under the supervision and jurisdiction of the probate court. Even in cases where there is a valid Will a court will still need to allow others to object to the will, and if there are objections, to determine if the Will is valid. This purpose of this legal process is to eliminate any possibility that:
- The Will was the result of fraud, mistake or the exertion of “undue influence.”
- The Will was made at a time when the deceased was not mentally competent to make a Will.
- There was a later Will which, if valid, would override and replace the older Will.
- The Will was not properly executed.
- The ‘so-called’ Will is a forgery.
- The Will is not fully valid for some other reason, such as a pre-existing contract.
- Other claims against the deceased’s estate impact what the beneficiaries under the Will would be likely to receive.
If the deceased owned property in his or her own name for example, no knowledgeable third party would accept title to the property, nor would any bank approve a mortgage unless the estate went through probate so “clear title” could be established and given the new buyer. Similarly, few third parties would enter into any other transactions involving the deceased’s property before the Will is admitted to probate and/or someone is lawfully appointed to act for the estate.
In essence the probate process clarifies a Will and protects an estate from challenges to the specified beneficiaries of an inheritance. Although using probate for a Will is an effective and necessary process, some matters of a Will can be handled without involving a probate court. Much will depend on the nature and shared ownership of the property in the estate.
Probate can be a tricky legal area, and generally the best advice would be to consult with a qualified solicitor like Harold Stock Co.
Our solicitors can obtain the necessary Court documentation from the Probate Registry on your behalf, and can:
- Deal with the administration of the estate.
- Prepare estate accounts, and
- Distribute the deceased’s estate.
If you have a relative or friend who has recently passed away and you need assistance in dealing with the distribution of their estate, please contact Harold Stock & Co Solicitors on 01457 835597 or email firstname.lastname@example.org.