Wills and the Probate Process

Losing someone close to you can be devastating. This can be made much worse if the deceased has not left clear instructions about how their assets should be distributed. It is, therefore, much better for all concerned if a will is written.  

The Will  

A will represents a person's wishes before they die. The will may deal with property, goods or money. For a will to be valid, it must be written and signed by the testator in the presence of two independent witnesses.  

It is essential that the will is carefully drafted—this is a skill and, therefore, it would be advisable to instruct a solicitor who specialises in will writing. A will, although drawn up before a person's death, only serves to distribute the assets remaining at the time of the testator's death.  For instance: if the will allocates property or money in a specific bank account to a person, but the property or money has been gifted or transferred to another party during the testator's lifetime, then that part of the will will fail. It is possible to draft the will in such a way that envisages this situation and, thus, provides for the beneficiary in some other way but if no alternative clause is included then that beneficiary will not receive that part of their inheritance.  

Furthermore, if a person dies without a valid will, their estate will be distributed according to the rules of Intestacy, giving priority of succession to close relatives such as spouses and children.  

In the circumstances, great care must be taken when drafting a will.  

The Probate Process  

When someone dies, it's important to follow these steps to ensure that their estate is handled appropriately:

1. Register the Death

Firstly, the death must be registered within five days. You will need to provide the death certificate. This certificate is provided by a medical practitioner.  

2. Find the Will

If the deceased left a will, it may be at their home or left in a safe place. The will is crucial in determining how their estate should be distributed.  

3. Value the Estate

Before applying for probate, you must calculate the total value of the deceased’s estate. This includes assets such as property or savings, and you will have to identify any debts remaining. You must also check if Inheritance Tax is payable.  It will be necessary to contact any banks, creditors etc for an up to date account of the amount due or owing,

How to know if applying for probate is necessary?

 In most cases, you will have to apply for probate to manage the deceased's assets. Nonetheless, it is not always required, for example if:

-All assets are held jointly as joint beneficial owners including joint bank account (they automatically pass to the other owner).

-The value of the estate is very low.

-The debts exceed the assets.

4. Apply for probate

   -If there is a will: the will should appoint executors to deal with the estate. The executors may be different to the beneficiaries of the will. The executors will be the ones to apply for a grant of probate. The grant will then be produced to any creditors of the deceased (such as banks) who will then release the money to the executors. The grant will also need to be produced to sell any property.

   -If there is no will: a close relative must apply for Letters of Administration, which grants similar authority.  

5. Administer the Estate

Once legal authority has been granted, the executors or administrators will legally have the right to manage the deceased's estate, such as accessing their accounts or selling their property.  They could also distribute the remaining assets to the beneficiaries according to the will or the rules of Intestacy.  

If you have any issues during the probate process or the drafting of your will, Bangor University Legal Advice Clinic (BULAC) offer free legal advice. To make an appointment, please call 01248 388411 or email us at bulac@bangor.ac.uk .