What is Probate and Should I Pay a Professional?
What is Probate and Should I Pay a Professional
?
What is probate and when is it necessary
Whenever anyone dies, it will always be necessary for someone to step in to deal with the financial affairs of the deceased.If the deceased left a valid Will the person responsible for dealing with the estate will be named in the Will and is referred to as the Executor (or Executrix if female). If the deceased left no Will or if he left an invalid willthen a relative may apply to the Court to be appointed as an administrator of the estate.
In any case wherethe estate is worth more than5,000 or containsshares orproperty then the executors or administrators will need to ask the Court for permission to deal with the estate and this is process is called probate.
The Court will issue paperwork to the executors or administrators proving that they have the right to deal with the deceased's affairs. In the case of executors this is called a "Grant of Probate" and in thecaseof Administrators the paperwork is referred to as "Letter of Administration". Only the people named on the Grant of Probate or Letters of Administration are entitled to deal with the estate so any executors or relatives who choose not to participate in the probate process and who are not named on the paperwork will need to go back to court at a later date if they
Subsequently wish to act.
How difficult is it to obtain probate?
The amount of effort which the executors or administrators will have to expend in order to obtain probate can vary enormously.
If there has been a falling out in thefamilyor relatives of the deceased dispute the validity of the will then obtaining probate can be a complicated task which could involve lengthy court battles these cases are often referred to as "contested probate" or "contentious probate". If you are involved in a case of this type then you will need to take legal advice, and it may be beneficial to pay a solicitor to deal with the issue on your behalf.
However, in many other cases the legal' bit of obtaining probate is actually very straightforward and can easily be completed by the executors or administrators themselves just by filling out some court forms and attending an interview at the local District Probate Registry.
Why would I pay a professional if I could do it myself?
Although the term "probate" strictly only refers to the process of obtaining permission from the Court to deal with the estate, it is often used to describe the whole process of administering the estate,dealing with any of the deceased's debts and property, paying any inheritance tax and distributing the deceased'sassets amongst his relatives orthe beneficiaries of his will.
Very often when you pay a professional, such as a solicitor, to deal with the probate on an estate they will not only obtain a grant of probate or letters of administration, but they will also deal with the complex financial matters involved with administering the estate on your behalf. This can be advantageous for a number of reasons.
Even in cases where the legal bit' of obtaining a grant of probate is straightforward, the actual administration of the estate could still be extremely convoluted and time consuming and could raise legal issues which are beyond most people. For example, few executors would know how to go about suing people who owed money to the deceased.
It is also important to bear in mind that executors or administrators must obtain probate, collect in assets, assess and pay any inheritance tax, collect debts which were owed to the deceased, repay all debts which the deceased owed to othersand be in a position to distribute the remainder of the estate to the beneficiaries or relatives within one year. If the executors or administrators take more than a year to pay the residue of the estate to the beneficiaries or relatives, they are entitled to demand interest on the sums owing.
Finally, executors and administratorsowe a duty to act competently, prudently and in the best interests of the estate. If they fail in that duty, the beneficiaries of the estate could have a legal claim against the executors. Professionals, such as solicitorswill be insured against this risk.
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