What’s the difference between a Will and Probate?

If you’re starting to think about your future, or you’re dealing with a loved one’s estate, you may be dealing with wills and probate – and wondering what it all means. 

A will is a legal document that states how you want your money, property, and possessions distributed after your death. 

Probate is a legal process undertaken by the person administering your estate – it gives them the legal right to fulfil your final wishes. 

Is probate always needed?

Probate won’t always be necessary – it varies from family to family. 

Some people believe that if there’s a will, there’s no need to apply for probate. This isn’t true. It all depends on the financial circumstances of the deceased.

Probate isn’t usually necessary if there is:

• A low-value estate

• No property, or 

• Property jointly owned with a partner (beneficial joint tenants)

• Only money in joint bank accounts

• Less than £5,000 in cash

• Only small possessions, like jewellery, furniture, or a car

• The estate is insolvent

Check the contents of the will carefully and consider getting legal advice if you’re unsure whether you need to apply for probate. 

What is the process for probate? 

The person applying for probate will be the same one administering your estate – distributing your worldly goods to loved ones and settling your affairs. 

When you write a will, you’ll name one or two trusted executors to carry out your instructions. 

When there’s no will, an administrator is appointed by the Court of Protection. The administrator will be one of your beneficiaries, who stands to inherit under intestacy laws. 

If probate is needed:

• The executor of the will must apply for a grant of probate, or

• The administrator must apply for a grant of letters of representation. 

After this, it may be necessary to complete inheritance tax forms and pay any tax due. 

Next, the executor or administrator must pay off any outstanding debts. 

Finally, the remaining estate can be divided amongst the beneficiaries. 

What’s the difference between grant or probate and letters of representation?

Beyond the applicant, there isn’t a lot of difference between a grant of probate and a grant of representation. Both give someone the authority to legally manage the deceased’s affairs. 

In some cases, if an executor can’t or won’t apply for a grant of probate, beneficiaries can instead apply for a grant of letters of administration. 

Remember, more than one person can apply to the courts, and there’s no guarantee who will be appointed as administrator. The court will decide. And relatives may challenge each other to handle the estate. Usually, the Court of Protection will appoint the main beneficiary according to the laws of intestacy. 

This is why writing a will is so important – it give a little peace of mind to loved ones. 

What can executors and administrators do with probate?

Probate lets the person administering the estate distribute possessions. But there’s a lot more work involved – it can be incredibly time-consuming and complicated. This is why choosing the right executor is important. 

With probate, your personal representative can also:

• Access bank and building society accounts

• Sell or transfer property

• Collect assets 

• Liquidate assets

• Pay additional taxes

How long does it take to get probate?

Completing probate takes around four to eight weeks. But it can take long, as it depends on the size and complexity of the estate. 

Who inherits after probate is completed? 

Once probate is complete, the executor will follow the instructions in the will. 

Assuming no-one challenges the will, those you name will inherit your possessions – just as you’d wish. If you’re facing a challenge to a loved one’s will, or you think you have a legal right to contest, speak to a solicitor to make sure you’re entitled to challenge

This is not the case when there’s no will. You and your relatives have no say over who gets what. Instead, strict intestacy laws dictate who inherits. This includes, in order:

• Spouse or civil partner

• Children

• Parents

• Siblings

This is why writing a will is so important – your relatives don’t automatically benefit from your estate. Make sure your loved ones get the inheritance you feel they deserve. Talk to one of our experienced solicitors for support in making a will or applying for probate. 

Get in touch and we promise to make life a bit easier during this difficult time.