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.