Debunking Common Probate Myths

Losing a loved one is a difficult time. Alongside coping with grief, many people find themselves faced with the responsibility of dealing with paperwork, navigating legal processes and administering an estate. It’s easy to feel overwhelmed and confused when confronted with unfamiliar terminology, forms and procedures. To make matters worse, there is a great deal of conflicting and inaccurate information available online, making it harder to know where to start and often leaving people unsure whether probate is needed.

This article explains and debunks some common probate myths, helping you understand when a Grant of Representation may be required, what happens if there is no Will, and why professional advice can make the process more straightforward.

When people ask whether an estate needs to “go to probate”, they are usually referring to the need to obtain a Grant of Representation. This is the legal document that confirms who has authority to administer the estate. If there is a valid Will, this is usually called a Grant of Probate. If there is no Will, it is usually called Letters of Administration.

A Grant is not always needed. Joint assets, including some jointly owned property and joint bank accounts, may pass automatically to the surviving owner. Some banks and financial institutions may also release funds from sole accounts without a Grant if the balance is below their own internal threshold, although these limits vary and can change. However, a Grant is usually required where the estate includes property in the deceased’s sole name, significant investments or larger balances held by financial institutions.

It is a common misunderstanding that the entire estate automatically passes to a husband, wife or civil partner when someone dies without a valid Will. Joint assets do pass to the surviving joint owner, but if the deceased leaves children, the surviving spouse is only entitled to the first £322,000 of the estate and half of the remainder of the estate. The other half is divided equally between the children.

Unmarried partners do not automatically inherit under the intestacy rules, regardless of the length of the relationship.

A valid Will is extremely important, but it does not always prevent disputes. Someone may challenge the validity of a Will, dispute how the estate is being administered, or make a claim if they believe reasonable financial provision has not been made for them.
Even where a Will has been correctly drafted and executed, it may be possible to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This allows certain people to make claims against the estate if they can prove that they were financially dependent on the deceased and the deceased did not provide for them adequately in the Will.

Those who may be able to claim include:

• A spouse or civil partner
• A former spouse or civil partner who has not remarried or entered a new civil partnership
• A child of the deceased, or someone treated as a child of the family
• A person who lived with the deceased as a spouse or civil partner for the two years before death
• A person who was being maintained, wholly or partly, by the deceased immediately before death

To reduce the risk of disputes, it is advisable to have a clear, professionally drafted Will that is signed and witnessed correctly. You should also review your Will regularly, especially after major life events such as marriage, divorce, the birth of children, the purchase of property or a significant change in your financial circumstances.

There may also be situations where beneficiaries agree to vary the provisions in a Will, usually for tax planning purposes. This is commonly done using a Deed of Variation. The beneficiaries affected by the change must agree, and the deed usually needs to be completed within two years of the date of death for inheritance tax and capital gains tax purposes.

The Probate Registry will normally require the original Will before issuing a Grant of Probate. If the original Will cannot be found, it is possible to apply using a copy. However, this can take longer and may require additional evidence because questions can arise about whether the original Will was revoked. For this reason, we recommend storing your Will in a safe and secure place, making sure your executors know where it can be found. At Backhouse Solicitors, we offer a Will storage service and register all Wills we hold with the National Will Register, giving you added peace of mind that your executors will be able to locate it when needed.

There can be a great deal to organise and manage, and the level of support needed will depend on the circumstances. Having the right solicitor by your side to guide you through the process with clear advice and practical support can provide valuable peace of mind and help make a challenging time a little easier.

As the cost for probate services can vary widely, it’s important to shop around for quotes and compare the services included, not just the fee being charged.

Be clear about what level of help you need, and think carefully about your expertise and available time to fill in forms, deal with banks, calculate Inheritance Tax if payable and so forth. Typical levels of advice would be:

• Ad hoc advice only, supporting you as you do the probate
• Your solicitor applies for the Grant of Probate and then leaves the rest to the executors
• Your solicitor applies for the Grant of Probate, takes care of any Inheritance Tax and completes a full estate administration, distributing the assets for you

Whatever level you choose, ensure that your advisers are properly qualified and insured for probate work. There have been several high-profile cases of unregulated businesses going bust and leaving beneficiaries substantially out of pocket.

At Backhouse Solicitors, our experienced probate team combines legal expertise with a compassionate and sensitive approach. We can support you through every stage of estate administration, tailoring our service to your needs. As every family’s circumstances are unique, we will do our utmost to make the process as straightforward as possible, easing the burden wherever we can.

To find out more about how we can help, contact us today to book a free initial consultation with one of our probate solicitors.

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Email: info@backhouse-solicitors.co.uk
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