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Anyone can make a will by writing down their preferences and the details of any legacies they want to make. However, there are important steps to take if you want a will to be legally binding and difficult to contest (or question).
In many cases, these steps include something called a grant of probate. So, do all wills go through probate? This also leads to the question, when does a will not require probate?
The meaning of probate
First, a quick reminder of ‘What does probate mean?’.
The Executors named in a will are responsible for dealing with the estate (all the assets the person has, including property, cash, pensions and shares). Carrying out the deceased person’s wishes may be complex. Including having to deal with banks and other official organisations, or disposing of property.
To achieve all this, executors usually apply to the appropriate civil court for a grant of probate. This is a validation of the fact that this will is a legal document and the Executor’s actions are therefore protected by law.
It can be an important way to stop other people from questioning the ways the Executors distribute the estate, according to the requirements in the will. Around 250,000 families have a probate hearing each year.
(source: Wills and Probate )
Is probate mandatory for wills?
The answer to this is no. There are times when executors don’t need to secure a grant of probate. This is usually when it is relatively straightforward to carry out the measures detailed in the will.
For example, the deceased person may have no property and dealing with their requests is a matter of distributing cash and belongings to a relatively small group of beneficiaries.
Another reason probate may not be needed is if the deceased person made previous arrangements to ensure that the property can change hands easily and legally. A great example of this is a property that’s co-owned (such as by a surviving spouse). It simply passes wholly to the other person named on the existing paperwork.
Another occasion when probate is not required is if the estate is insolvent. In other words, the debts outweigh any assets, leading to nothing to divide up.
It’s also possible to take out certain types of life insurance policies or secure other legal documents that make it unnecessary for executors to need this additional legal validation.
If someone dies without making a will, what happens to probate? In this situation, an appropriate person (such as a spouse or child) can apply for Letters of Administration. It is similar to a grant of probate, in that they are legally authorised to deal with a deceased person’s estate.
Privacy, cost and probate
If the executors choose not to go through probate with a will, it then continues to be a private document and they control who sees it. After a grant of probate, the will is a public document, and anyone can pay a fee to apply for access to it.
Also, keep in mind that there are probate fees when you follow the steps to secure will validation in court. Also, the financial conduct authority does not regulate will and probate planning.
If you want to discuss any issues surrounding probate – and any other financial questions regarding inheritance – don’t hesitate to contact us at WIS Mortgages and Insurance.