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Probate

The Biggest Probate Mistakes People Make 

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13th July 2022

The probate process of assessing, managing, and distributing the assets of a recently deceased person can be a complicated legal process that requires significant paperwork, time, and expertise. Certainly, it is possible for a non-legal professional to handle the entire process themselves, especially if the estate is small or simple.  However, for those who have never encountered probate or similar legal issues before, it can be incredibly easy to underestimate the time needed and difficulty inherent in managing the process.

To make matters complicated, a well-intentioned person can easily find that they have caused serious damage either to the estate itself, the beneficiaries, or their own financial wellbeing by missing an easily overlooked step or committing a seemingly innocent error.

This article will explain and examine some of the more common mistakes and pitfalls that many amateurs make when attempting to complete the probate process.

1. Distributing Assets too Early

One of the realities of being an Executor is being able to deal with pressure from impatient beneficiaries to distribute assets as soon as possible. Beneficiaries are usually friends and family of the deceased, not legal experts, and may not realise just how long the probate process can be.

While the pressure to keep beneficiaries happy is real, distributing assets early can cause serious complications – if you’re distributing money from an account, for example, while also handling legal or tax paperwork, it can be remarkably easy to lose track of who has received how much money, and how the early loss of that money will affect the distribution of the remaining funds. Additionally, there’s always a possibility for unexpected complications or costs to arise later on in the probate process, and if the estate doesn’t have enough money to cover these issues because the funds have already been distributed, the Executor will be expected to pay these expenses out of pocket.

2. Failing to Record Everything

Executors are required by law to keep careful records and produce evidence of all financial transactions made to and from the estate. This includes money and financial assets like stocks and personal possessions. While an old family armchair may not seem that important compared to hundreds of thousands of pounds in a bank account, it can easily be a source of significant strife between beneficiaries (and by extension, the Executor). In particular, close attention must be paid while clearing out the house to ensure that all possessions are accounted for and recorded.

3. Mis-assessing Estate Liabilities and Debts

One of the common pitfalls of the probate process is missing an outstanding debt or liability the deceased may have had that isn’t readily obvious from the documentation they left behind. If the Executor didn’t complete their due diligence in tracking down all outstanding debts to the best of their ability, and a creditor appears later on, that creditor can pursue legal action against the Executor to recover the debt.

While many debts may be obvious because paperwork such as credit card statements are found with the deceased’s documentation,  an asset and liability trace may be necessary to ensure that a full picture of what the deceased owed and owned are ascertained.   Using a professional solicitor to help you with this step can be invaluable.

4. Failure to Locate All Beneficiaries 

On occasion, some Wills bequeath assets to members of a class (e.g. heirs, family, relatives, and so on). In this case, rather than simply following instructions and distributing assets to a concise list of people who the Executor knows, he or she must trace all the beneficiaries so that every individual that is a member of that class is accounted for.

Here to Help

At Elizabeth Middleton Solicitors, we do more than simply offering probate, Will and Equity Release, we do so in a kind, caring and gentle way to help you deal with the death of a loved one. With nearly 20 years of experience and a long list of pleased past clients, trust us to take care of your probate needs.

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Probate

Debunked: Top Myths About Probate

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3rd July 2022

If you don’t know much about the law regarding Trusts, Wills, and Probate, you’re not alone. Unfortunately, most people don’t want to deal with topics like this, so they tend to avoid them altogether. But it’s essential that you know the basics so that you can recognise the common myths surrounding these topics when you hear one.

The probate process can be complex. There are many parties involved in administering an estate and, as with any complex area of the law, there tends to be common misconceptions about probate. Below you will find eight common myths about probate:

#1. If There Is a Will, It Can’t Be Challenged

Many people believe that when someone writes a Will, it is final, and there is nothing that anyone can do after the person’s death. This is untrue. Based on their relationship with the deceased, some people can contest the Will and make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975.

Some of the circumstances that lead to a contested Will are lack of mental capacity, undue influence, and lack of knowledge and approval.  All these will make the Will invalid if proven in a court of law. These claims are difficult to win and expensive.

#2. You Don’t Have to Apply for Probate if There Is a Will

You will not have to apply for a Grant of Probate when someone dies and all assets are held jointly or someone dies without assets of significant value. Other than that, a Grant of Probate maybe required to administer the estate.  The type of asset or the Asset Provider may require a Grant of Probate to access it.

#3. Spouses Aren’t Required to Get a Grant of Probate for One Another’s Estate

Many couples own accounts jointly such as bank accounts and their property. However, the deceased may have assets held in their name only.  They would require a Grant of Probate.  

Even if all of the deceased assets are held jointly, it can still be helpful to have a Grant of Probate to show what happened in an estate. This is especially true when administering the surviving spouse’s estate when it’s time to claim available inheritance tax allowances that can be transferred on the second death if the estate is left to tax paying beneficiaries such as children rather than charities.

#4. Probate Is Expensive

You may have heard stories about how expensive probate costs and all of the court costs and legal fees involved. This costs depend on the assets in the estate and whether inheritance tax is payable.  Simple estates are not expensive to administer whereas complex estates are.

#5. The Length of Time of the Probate Process

You may hear from some people that probate takes “years”, while others will tell you the process doesn’t take much time. Either can be true, depending on the estate.

In some cases, granting of probate takes about about three months to more than a year depending on the complexity of the estate. 

You should remember that a distribution shouldn’t happen until at least six months after the Grant of Probate is issued. This gives claimants and debtors time to come forward to enable their interests to be considered.

#6. All Executors Named in a Will Are Required to Act

If you are appointed as an Executor of an estate, you are not required to act, but you have the right to if you choose to do so. You can renounce your appointment, meaning you formally step down, or, if multiple Executors are named, you can allow the others to get the grant of probate and only act if needed.

#7. Executors Are Paid

Solicitors and professional Executors will have provisions written in the Will stating the payment they will receive for their services. Non-professional Executors, however, are not typically paid for their work. They can be reimbursed for out-of-pocket expenses incurred while carrying out their Executor duties, but they cannot charge for their time.

#8. Solicitors Receive a Percentage of the Estate

Historically, it was common practice for a solicitor to receive a percentage of the estate. However, that is not typically the case anymore. Sometimes smaller estates can present complex issues that require more work, so solicitors usually charge based on the time spent working on the estate.

Let Elizabeth Middleton Solicitors Guide You Through the Probate Process

Finalising the affairs of a recently passed relative can be difficult and dealing with the bureaucracy that is required to obtain probate can make this challenging time even more difficult. A sympathetic and trustworthy solicitor helping guide you along the process can make things much smoother.

At Elizabeth Middleton Solicitors, we know you are dealing with a lot during this difficult time. We are here to help. We can assist you at any stage in the probate process, and if you are named as an executor but do not want to handle things yourself, we can apply for probate on your behalf under a power of attorney.
Contact us today to book a consultation.

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Probate

Is Probate Always Necessary in the UK?

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13th June 2022

If you have been named the Executor of an estate, you may wonder if probate is needed when the person passes away. There are different factors used to determine the answer to this question.

Knowing whether or not you have to apply for probate is essential. If you don’t apply for probate, and you should have, beneficiaries may not be able to access assets left to them in a will.

Understanding what probate is and determining if you need to apply for it or not may seem overwhelming. Let’s take a closer look at what probate is and how to know if it is necessary in your particular case. 

What is Probate?

Probate is the process of administering the estate of a person who has passed away. The executors or administrators of an estate can do nothing with the property in the estate until it has gone through probate.

When You Should Apply for Probate

Before the Executor can do anything with the deceased’s assets, they have to apply for a Grant of Probate or a Grant of Letters of Administration if there are deceased left assets in sole name. You may need to apply for a grant of probate if the deceased left a will, and the Grant of Letters of Administration may be necessary if there is no will. 

If There Was a Will

You will typically need a Grant of Probate if the person who passed away leaves any of the following:

  • An account with a balance of around £20,000 and above.  Typically, the bank or Asset provider will set its own rules.
  • Shares or stocks
  • Certain types of insurance policies that have not been written into trust
  • Land or property in their sole name or as ‘tenants in common’

If any of the above is true of the estate, most institutions will require the Grant of Probate before transferring the assets.

To apply for the Grant, the executor must have the original will along with any codicils. A codicil is an addition to the Will.  

If There Was Not a Will

If there was no will, you can apply for a Grant of Letters of Administration if you eligible under the intestacy rules. The priority list is as follows: spouse or civil partner, children (excluding step-children), grandchildren (if children have already passed away), parents, siblings (if their siblings have died, their children), grandparents, and finally uncles, aunts, or cousins.

Up to four people with equal entitlement can apply on the same application if they wish to do so.

When Probate May Not Be Necessary

Many times estates do not need to go through the probate process. Some of the instances where an estate can avoid probate are as follows:

  •  If the estate only consists of property that is joint ownership or if there are assets that pass to a spouse or a civil partner when one of them dies
  • If it is a small estate and the deceased had no property, land, or shares in their name. There is no clear cut definition of a small estate. It can range anywhere between a value of £5000 to £50000.
  • If the person was insolvent, meaning that they had more debt and expenses than they had funds to pay them.
  • An insurance policy in the form of a trust. In this case, the trustees will need to provide a copy of the insurance policy and the death certificate.

And while these situations can help you avoid probate, there is the possibility of contentious probate. Contentious probate happens when a person disputes a will or how the deceased’s estate was handled. If this happens, even if the estate wouldn’t have to go through probate, there is a process that it will have to go through before the estate can be settled.

Let the Experts at Elizabeth Middleton Solicitors Help You Navigate Probate

If you are left to finalise the affairs of a loved one after they have died, you are already going through a very difficult time. The probate process can be complicated, and adding complications to this challenging time is unnecessary.

Elizabeth Middleton Solicitors are here to help you work through all of the procedures required in probate. We will work to finalise the estate of your loved one as efficiently and effectively as possible. We understand that each family we work with deals with different circumstances, so we provide personalised service for each customer.

To discuss your specific situation, contact us today for a consultation.

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Probate

Understanding the Risks of DIY Probate

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10th November 2020

When it comes to protecting your assets, you want a knowledgeable solicitor to administer your estate. Many people tend to handle estates themselves, especially if a family member dies. It’s understandable to consider doing it yourself, but as many quickly realize, this can be a much taller order than expected.

There are countless resources available online to help aid you through the process. If your estate is simple your loved ones will be able to administer it. 

But, if you’re not a professional, you may miss things that could cause major problems down the road. As an experienced solicitor, I understand the pitfalls that can occur. I want to guide you through a few of the major risks of DIY probate. 

Risk #1: Checking the Will and Assets

It would help if you made sure that the Will in your possession is the deceased’s last Will. This issue may seem simple, but another Will may exist that would void the previous one. Having another Will come up after you have dealt with the estate could be catastrophic. 

In addition to the Will, a thorough evaluation of all the assets needs completion. You could miss old bank accounts, premium bonds, the holding of shares, gifts, and many other things easily. 

Hiring a professional to survey the details helps decrease the risk of missing something. If you miss something when you do it yourself, you could be personally liable for it and may have to pay out of pocket later on. 

Risk #2: Interpretation

Reading a Will is one thing, but interpreting it is another. Sometimes they are handmade and not easy to understand. Sometimes the wishes are unable to be fulfilled, which could cause even further complications. This problem could come from a missing beneficiary or an asset that no longer exists. 

There are rules laid out in legislation about what should happen in these instances. When you hire a professional, you help eliminate the risk of mistakes.  

Risk #3: Personal Liability

As the executor of the estate, you could be liable for unpaid debts. This liability means you will have to pay out of your pocket if you don’t receive the due inheritance. This problem could happen for several reasons, including not obtaining the real market value for a property. 

You could also have an unknown beneficiary come forward after the estate is distributed, or there could be an outstanding tax bill. Ignorance is not something you can plead if this happens, so the risk is very high. 

All estate debts need payment before any beneficiaries receive compensation. The single way to avoid liability is to make sure the estate is dealt with appropriately. You need a specialist solicitor with the training and experience to get the job done to do this. 

Risk #4: Calculating Taxes

Most estates have tax issues. More estates these days are now liable for inheritance tax (IHT). When an estate exceeds value at £325,000, IHT can charge up to 40 percent of the value exceeding the amount. 

Since many properties are worth that amount and more, it makes sense that many come with the IHT band. 

Many tax reliefs and exemptions are available. Some of these include charitable legacies, business assets, and your primary residence. The rules aren’t simple, and inaccurate calculations could mean that you pay the wrong amount. You could end up having to pay beneficiaries out of your pocket, and you will be responsible for all of it. 

IHT needs early payment. With this responsibility, it could cause financial issues. You may not have the money available just yet. As executor, you will be responsible for paying it. It may be tempting to pass the responsibility onto a beneficiary, but it is not worth the risk.

 Even if you trust the beneficiary, there are cases where the beneficiary has backed out or even ran off with the money. This situation will still leave the executor responsible. 

Other details should be considered, such as lifetime gifts that could create more IHT. Income tax could also be payable on trusts and rental properties. 

Risk #5: Risking Unexpected Claims

The rise in extended families means a higher risk for unexpected claims by unknown beneficiaries. You could deal with the estate yourself, pay all the heirs, and someone could suddenly come forth with a formal claim that they are entitled to a share of the estate. This issue could blow all of your plans out of the water.

The only way you could avoid personal responsibility for this is if you have publicly notified creditors of the death through the correct newspaper sources. This practice isn’t a strict legal requirement, but it helps protect you if a claim arises. 

We’re Here to Help

Elizabeth Middleton Solicitors is here to help you through your probate challenges. Don’t risk unnecessary complications, contact us today to get started, and make sure you and your family are in good hands. 

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Probate

The Probate Process: Applying for Probate and Taking Next Steps

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24th July 2020

When a loved one passes, it’s already a difficult enough time without added stress. On top of that, it can be a challenging process taking on the complicated duties of administering the estate, but that’s exactly what the executor of a Will and an estate has to do.

This is called the probate process, and it involves calling in assets, paying off any remaining debts, and paying any applicable inheritance taxes. All of that comes before distributing the estate according to the Will of the deceased or, worse, dealing with the rules of intestacy if the deceased died without leaving a Will.

Most of the time, a probate lawyer is best equipped to help an executor through this process, but before going to that step, it’s important to understand the process first. The exact steps and details may vary according to the Will and other factors, but what follows is a basic summation of the process.

Apply for a Grant of Probate

The person designated as the executor of the Will must file for a Grant of Probate with the probate court. This is the process of asking for legal recognition of executor status and permission to represent and administer the estate.

Additionally, the executor has to file the Will and a death certificate with the court along with any other documents the jurisdiction may require. The court will then hold a hearing to approve the executor. This is also the stage where the court will hear any objections from other parties regarding the executor.

If the deceased did not leave a will, the court will decide how to administer the estate, or a relative of the deceased, commonly the next of kin, may petition to become the executor.

Give Notice and Take Inventory of Assets

Assuming the executor is approved and obtaining the Grant of Probate succeeds, it is now time to notify all creditors, beneficiaries, and heirs that the estate is in probate. The exact means of doing this may vary by local laws.

At the same time begins inventorying all assets and appraising their values. This includes but is not limited to financial accounts (bank, retirement, etc.), stocks and bonds, real estate holdings, and valuable personal items (art collections, automobiles, and jewelry are some examples).

Take Care of Remaining Bills and Debts

Before distributing assets to beneficiaries and heirs, it is necessary to close out any outstanding debts. This can be a time-consuming process because it often requires extensive scrutiny of records, accounts, and the like.

Likewise, the executor has to pay all applicable income and inheritance taxes.

To pay these debts, the executor will use the estate’s assets. In the event that the estate cannot cover all debts, the court will have to take over and prioritize the remaining claims against the estate.

This works the other way as well. If there is money owed to the estate, such as through paychecks, rent owed by tenants, and other forms of owed compensation or remuneration, the executor sees that those obligations are met.

If there are disputes between creditors and the estate, it’s best for the executor to seek representation by a probate lawyer immediately if he or she has not already done so.

Establishing an estate account to pay bills and other expenses makes this part of the process easier to manage.

Distribute the Rest of the Estate

Now that all debts have been covered, it is time to distribute the remaining assets according to the instructions in the Will. This is the stage where there might be disputes between the executor and beneficiaries, and this possibility is another persuasive argument for hiring a probate lawyer to help steer the executor through what can be a protracted, complicated, and occasionally bitter process.

Finally, Close the Estate

With all debts paid and assets distributed, the executor submits all records and receipts to the court and petitions for the estate to be closed. Once the court grants that, the executor is released from that role.

Probate Service by Elizabeth Middleton Solicitors

By now, you likely appreciate that the task of being the executor of an estate and managing the probate process is a daunting one even when everything goes smoothly. It’s easy to feel overwhelmed by all this on top of the stress surrounding the deceased’s passing. When there are disputes or when the Will is unusually complicated, things can get even more difficult to sort out.

Sometimes an executor desperately needs help. Sometimes an executor really prefers not to manage this process at all and would rather entrust it to a skilled professional solicitor.

Elizabeth Middleton Solicitors personalises its probate services according to every particular circumstance, and our lawyers are experts in managing and walking you through every step of the process.

Because we know this is a challenging time and a difficult process, we’ll work at a pace comfortable for you. Because we have spent more than a decade specializing in just such affairs, we work tirelessly to make this process as easy as possible on you while being efficient and effective in closing the estate. And because we know that circumstances can change rapidly, we provide the flexibility you need to handle all legal proceedings surrounding the passing of a loved one.

Let us help you manage your responsibility as executor and get you and your loved ones the closure they need. To learn more or to schedule a consultation, contact us, and let us help you move forward and ensure that your loved one’s estate is wound up properly.

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Probate

What Is Probate?

solicitors fees for probate

22nd April 2020

A SIMPLE GUIDE TO THE STAGES OF PROBATE

Managing the financial and property related affairs of a loved one when they die is never easy. At Elizabeth Middleton Solicitors, we have prepared a simple guide to talk you through the steps required when administering a dead person’s estate.

The entire administration process is called ‘Probate’. In a nutshell, this process involves organising the finances, assets and possessions of the deceased and distributing them as inheritance – after paying any debts and taxes.

Every estate and every Will is different so the process will vary according to the instructions left in the Will and the assets, creditors and beneficiaries the estate has. You can read more about the benefits of writing a Will in our article titled ‘Do I need a Will?’

If you have been appointed an Executor in somebody’s Will, you are responsible for carrying out probate. There are four main stages to the process:

  • Assessing the total value of the estate and whether it’s liable for inheritance tax.
  • Apply to the probate registry for a grant of probate and submit an inheritance tax form to the tax office.
  • Pay any inheritance tax that is due and swear an oath at a Solicitors office or a probate registry.
  • Administer the estate by gathering in assets, paying off any debts and distributing what is left according to the Will.


For more information about applying for probate or the probate process including how long it takes and how much it costs, get in touch with Elizabeth Middleton Solicitors based in Woodley for trusted advice and a professional and respectful service.

Tel: 0118 343 2737
Email: [email protected]