legal & fi nancial
Dealing with Probate
The right to deal with the estate of someone who has died is called Probate. Here we answer the most frequently asked questions about probate
Words Reshma Field
authority to administer the deceased’s estate. Most banks and share registrars and other institutions will want to see this before they will close accounts or sell shares. However, Executors do derive their
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authority from the Will, which means they can begin to do some things immediately after death and do not have to wait for a Grant to be issued, for example, signing a contract for sale of land. However, in the case of selling land the Grant would be needed before completion can take place. A maximum of four people can apply for Grant of Probate and any dispute between rival applicants is decided by the registrar. If the deceased died intestate (without
a valid Will) the Grant is called a “Grant of Letters of Administration” and if there are no Executors named in the Will, or the Executors are unable to act, the grant is called a “Grant of Letters of Administration with Will annexed”.
How do you apply for a Grant of Probate? The following documents need to be lodged with the Probate Registry in order to obtain a Grant of Probate: • An original Will and Codicils (if any) signed by the Executors. • An appropriate Oath sworn by the Executors. • Receipt to show Inheritance Tax has been paid (if appropriate). • An Inheritance Tax Account signed by the Executors.
• Any other papers the Registrar or District Judge may require. • Fees for the Probate Court fees. You can apply for the Grant yourself or you can instruct legal professionals to complete all the paperwork and apply for the Grant on
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hat is probate? A Grant of Probate is a court order, which provides evidence of the Executors’
your behalf. If the deceased died intestate, then the same paperwork is required but there will be no valid Will or Codicil to send to the Probate Registry.
What happens if a Probate is contested? This will very much depend on the specifi c circumstances and what exactly is being contested. For example, the validity of the Will may be in question. It could be that there is a question over the deceased’s mental capacity at the time the Will was made or their knowledge and approval of the Will. The Probate could also be contested if an individual decides to make a claim against the estate. For example, one particular benefi ciary believes he/she may be entitled to more than has been left to them in the Will or somebody who is not a named benefi ciary under the Will may have a claim against the estate if, for example, they were being fi nancially maintained by the deceased. Depending on the circumstances, it could be that an agreement or compromise could be reached between the respective parties without going to Court. Alternatively, if agreement cannot be reached then the Court will become involved. In either case the costs of dealing with a contested probate can be substantial.
How long does it take to administer an estate?
This again very much depends on each estate but if, for example, the estate is relatively straightforward and there is no inheritance tax to pay and no property to sell, then the estate could be fi nalised within a period of four to six months. Where a property is concerned then it is very much dependant on the property market at the time and how soon the property can be sold. However, at the other end of the scale, where matters are complex, the administration of the estate can take much
longer. Where estates are contested they can even take years before the administration can be fi nalised.
DIY Probate v professional advice? Some people believe that DIY Probate is the best option, saving costs in the hope that a larger sum will be passed on to the deceased’s benefi ciaries. Nowadays Executors are far more aware of what needs to be done and have information at their fi ngertips via the internet. Therefore, you may be able to deal with a relatively simple and straightforward probate yourself. The main issue is completing all the paperwork and making sure you meet all the legal and fi nancial requirements. This may be diffi cult at a time when you are grieving for the loss of a loved one. Employing the services of a legal
professional to apply for the grant and administer the estate relieves Executors from a lot of the legal and fi nancial tasks that must be undertaken when dealing with the administration of a probate. Therefore, on balance, many individuals feel that the benefi t of instructing professionals far outweighs the costs that are incurred both from a fi nancial and emotional perspective. For people named as Executors it is also worth noting that they are personally liable for dealing with the administration of the estate correctly and are therefore liable for any loss to the estate arising from any breach of duty committed by them unless they acted honestly and reasonably.
What happens if a Will contains an error? If you are aware that the Will contains an error before death then the best solution is to seek legal advice and have the Will updated so that
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