Are All Wills Probated?
Understanding the process of probate can be helpful if you are ever in the position of dealing with a loved one's Will or probate. Probate can be confusing, and there are several factors that can affect someone's probate.
In this article today, we will discuss the topic of probate and provide you with an answer to whether all Wills go through the probate process. Keep reading to understand the probate process further, and to learn what makes a Will bypass probate.
What Is Probate?
Probate refers to the administration of a deceased person’s estate. It is a legal process that involves reviewing a Will (if there is a Will in place) and then distributing a person's assets, including their money and possessions in accordance with their Will. All taxes and debts must be settled before the estate can be distributed as an inheritance.
The Will should name a person that the deceased has chosen to administer their estate. This chosen person is known as the executor. The legal document used to distribute the estate in accordance with the Will is known as the ‘Grant of Probate.’
During the probate process, a Will’s authenticity and validity will be checked as part of the deceased’s estate.
How Long Does Probate Take?
After the probate registry receives the application for the Grant of Probate, it can take on average 4-6 weeks to be processed and the administration of the estate can take up to 12 months to complete.
Probate times can vary depending on several factors - for example, the size of someone's estate and whether the Will is complicated will affect the length of probate time.
Are All Wills Probated?
Most Wills do go through the probate process to administer an estate if it includes property, however, not all Wills need probate. There are several circumstances in such a case where a Will can bypass the entire probate process.
Small Estates
If the estate consists of solid cash. This includes banknotes and coins, along with personal possessions such as a car, furniture, and jewellery.
Joint Ownership
If the deceased has joint ownership of property and other assets with another person. There are a couple of ways of jointly owning property, including beneficial joint tenancies and tenancies in common.
Beneficial Joint Tenants
The surviving partner will inherit the other partner's share of the property automatically. There is no need for probate because of this automatic process - unless there are other assets that are not jointly owned.
Tenants in Common
With tenants in common, the surviving partner will not inherit the other person's share of the property. Probate will be required in this instance so the executor can pass it to whoever will inherit the share of the property.
What Happens if There Is a Mortgage on the Property?
If an outstanding mortgage still stands on the property, then the mortgage will either be paid off immediately or whoever inherits the property will take over the mortgage.
A life insurance policy, an endowment policy or a mortgage protection policy may be in place and therefore be able to pay the outstanding mortgage off. You should write to the company in such a case and ask for a final statement.
If the person who inherits the property decides to sell it, the outstanding mortgage will be settled with the funds from the sale of the property.
Joint Bank Accounts
With couples who have a joint bank account or building society account, if one person dies, the money will go to the surviving partner. If this is the case, no probate is required. The bank may need to see the death certificate before they transfer the money to the other joint owner.
Small Amount of Money
If the estate has a small amount of money held in a bank account or building society, in a pension fund or by an insurance company, then it can be released after all necessary expenses have been paid. If the amount of money held is under a certain amount, then it can be released without having to apply for probate.
The Estate Is Insolvent
If there is not enough money from the estate to pay for debts, taxes and expenses, insolvent estates could expose personal liability for any mistakes made. You should consider getting a legal probate specialist to manage this process for you.
Pensions
Pensions are usually made at the discretion of the pension scheme trustees. The grant of probate is not usually required to release any lump sum pension benefits.
If no instructions have been received from the deceased during their lifetime about who should benefit from their pension fund, or if there is no clear next of kin to whom the payment should be made, then the pension company can decide to make payment to the executor of an estate and will request a Grant of Probate.
Bell Lamb & Joynson Concludes
As you will have now learned, we conclude that not all Wills have to go through the process of probate. If you need help from the experts in Wills and Probate then we have a specialist team at Bell Lamb & Joynson who are always available to help you.
We understand that handling probate after someone's death can be difficult, and that dealing with the legal side of death can be challenging. If you need help, contact us today.