What you need to know about probate
What is probate? It is the legal process of transferring of property upon a person’s death. When creating wills, we set out our intentions as to how our property is to be distributed and perhaps how certain debts shall be paid, or if trusts need to be set up. Throughout the years, the laws have changed but the purpose of probate remains the same, and in most circumstances it is an easy process.
The probate process
When making a last will and testament, you appoint someone you trust as executor of that will so that they can carry out the instructions laid out therein. The executor presents the will to a local court in the country where the decedent (the person who died) lived. If you have not provided a will, then someone will need to apply to the court to be appointed as the administrator of your estate. This is usually the spouse or child of the decedent, so if neither of these are preferable, or you’d prefer not to give them the responsibility, then you can also appoint powers of attorney to other trusted individuals who can help with the administration of your estate after you’re gone.
What is covered in probate?
Any property owned by the person at death is subject to the probate process. If you’ve heard the term “probating a will” – this refers to the process where it is demonstrated that the decedent followed proper legal formalities when they drafted their will. This is to ensure that the decedent was in no way influenced when preparing their will, and that they had sufficient mental capacity at the time of writing it to make decisions of this stature. The basics of what happens in and outside the courtroom are as follows:
- All probate property of the decedent must be collected
- Any debts or taxes outstanding by the estate must be settled
- All right’s to income, dividends, life assurance policies etc. must be collected
- All claims or disputes must be settled
- The remaining property is distributed to the heirs, either named in the will or by the court
Can the probate process be contested?
Often the process is left uncontested, when a will has been prepared and the details laid out simply. This also happens regularly when there isn’t a large amount of property to be distributed. However, the probate process can be contested when one heir is seeking a larger share of the decedent’s property than they have initially been instructed to receive. In these cases, the disgruntled party will often suggest that the decedent didn’t follow the necessary formalities when drafting their will, or that they may have been improperly influenced by another heir. Creditor’s can also make a claim on the estate of the deceased.
Is it an expensive process?
A number of fees apply to the process and it can prove quite costly after solicitor’s fees, court fees and the fees of those involved. The probatesystem does exist to protect all parties but it can also be avoided. Before death, one can distribute gifts, set up trusts or set out joint ownership so that their property goes to the surviving party.
In order to avoid a lengthy probate process, it’s best to have your will in order, so call Heritage Will Writers on 01603894500 for assistance today.