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Probate

grant of probate

What does grant of probate mean?

By | Probate

Losing a loved one is always deeply distressing. The adversity of the experience can easily be compounded if they have named you the executor of their will. However, before you can start managing their assets, you will need to establish whether you would need a grant of probate.

What is a grant of probate?

This term – often abbreviated as simply ‘probate’ – refers to a legal document you would show to numerous organisations, such as banks and the Land Registry. It confirms that you are authorised to deal with your recently departed loved one’s estate.

A grant of probate is not always needed where the estate is of low value or comprises of limited assets. It’s also possible that, if the deceased owned their assets jointly with someone else who is still alive, ownership is automatically transferred to this person upon the other’s death. Obtaining legal advice at an early stage in the process is beneficial to assist you in determining whether a grant of probate is required.

How long does a grant of probate take?

On average, it can take a year from a person’s death to complete probate and distribute the estate. If the estate is less complicated, then it may take less time. However, the probate process could still take at least six months. It depends on the value and complexity of the estate.

solicitor grant of probate meeting

The process begins by establishing the assets and liabilities of the estate. We then calculate whether Inheritance Tax is payable. Then, you must complete an application to the probate court to appoint an executor or executors of the estate. Before a grant of probate can be issued, any outstanding inheritance tax that’s due from the estate will need to be paid. There will often be exemptions and allowances available. These can reduce the tax payable, or may mean that no Inheritance Tax is due.

Do I need a solicitor for a grant of probate?

You don’t always need the assistance of a solicitor in obtaining a grant of probate. However, the legal and financial stakes can be so high that a solicitor’s assistance is often recommended.

Remember that if any beneficiaries of the Will take issue with how you have administered the estate, they could take legal action against you. You can get valuable peace of mind from a solicitor making sure the probate application process in your case is legally watertight.

For expert advice as to whether a grant of probate is required please contact one of our expert solicitors either based at our offices in Nuneaton or Warwick. Our website includes further guidance on obtaining probate, while we can also advise you over the phone. Please telephone our offices on 024 7638 2343 to make an appointment.

power of attorney document

What can a power of attorney do?

By | Probate, Wills

Do you need more information before you appoint a power of attorney? Or perhaps you have just been assigned power of attorney and want to know your responsibilities.

Here we will dive into the specifics of what a power of attorney means, what the most common type of power of attorney is and what a power of attorney can and can’t do.

What does a power of attorney mean?

A power of attorney is a legal document that allows someone to make decisions for you, or act on your behalf, if you are no longer able to or if you no longer want to make your own decisions.

Who can be an attorney?

Anyone aged 18 or over who has the mental ability to make financial, property and medical decisions. It is important that you trust the person/people you choose to be an attorney. Your attorney could be a family member, a friend, your spouse or partner; or they could be a professional such as a solicitor.

power of attorney meeting

Please note that your spouse does not automatically have the authority to make decisions for you if you lose mental capacity. Even if you are married or in a civil partnership, you must get a power of attorney document signed.

How many power of attorneys can I have?

You have the option to appoint one or more power of attorneys. If you appoint more than one attorney, they can act either:

  • ‘Jointly’ – they must always make decisions together
  • ‘Jointly and severally’ – they can make decisions together or individually

For example, you may want your attorneys to act jointly when deciding on where you live; but may trust one individual to pay your mortgage on your behalf.

A ‘jointly and severally’ appointment of power is preferred. This option reduces risk because the surviving attorney can continue to make decisions on your behalf.

Lasting power of attorney (LPA)

A lasting power of attorney (LPA) is the most common type. An LPA can be used in two circumstances; it can be used immediately with your permission while you still have the capacity, or it can come into effect when you lose mental capacity. To make sure you are covered in the future, it is a good idea to set up an LPA.

couple talking about lasting power of attorney with a solicitor

You can restrict the types of decisions your attorney can make, or let them make all decisions on your behalf. LPAs can be broken down into two types depending on your interest; property and financial affairs LPA and health and welfare LPA.

LPA for financial decisions

An LPA for financial decisions can cover things such as:

  • Buying and selling property
  • Paying the mortgage
  • Investing money
  • Paying bills and debts
  • Arranging repairs to a property
  • Dealing with tax affairs

It is important to note that an attorney must keep their accounts and money separate from yours. You can ask for regular updates on how much is spent and how much money you have. If you lose mental capacity, these details can be sent to your solicitor – offering extra protection.

LPA for health and care decisions

An attorney can generally make decisions about things such as:

  • Where you live
  • Your medical care
  • Your day-to-day care, including what you wear and what you eat
  • Who you should have contact with
  • What kind of social activities you should take part in

couple speaking to a solicitor about lasting power of attorney

In addition, you can give special permission to your attorney to make decisions about life-saving treatment.

What can’t a power of attorney do?

Although an attorney holds a lot of responsibility, there are a few things that they cannot do. Some examples of actions that a power of attorney cannot take are:

  • Change a principal’s will
  • Break their fiduciary duty to act in the principal’s best interest
  • Make decisions on behalf of the principal after their passing
  • Change or transfer power of attorney to someone else

When can my attorney no longer act on my behalf?

Your attorney no longer has the authority to act on your behalf when they:

  • No longer want to act as your attorney
  • Lose mental capacity
  • Were previously your spouse or civil partner but your relationship has legally ended since your LPA was registered
  • Become bankrupt or are subject to a debt relief order
  • Pass away

What do I do if I lose my original power of attorney?

Without the power of attorney document, the agent cannot prove that they have the right to act on your behalf.

The Office of the Public Guardian can supply office copies of the original document and may charge a fee. Using the Office of the Public Guardian, you can also:

  • View a summary of an LPA
  • Check whether an LPA is valid
  • Check who the attorneys are on an LPA

If you still cannot access the document, a new power of attorney will need to be created. You should now be up to speed with the basics of what a power of attorney is and the responsibilities they have. If you are looking to create a power of attorney, we can advise and support you every step of the way with our services.

Contact one of our qualified and experienced solicitors today.

what does probate involve

What does probate involve?

By | Probate | No Comments

Probate is the process of dealing with the estate of someone who has passed away. It generally involves getting permission to carry out the wishes within someone’s Will, organising and settling their estate, and possibly clearing any taxes and debts left behind.

There are specific rules that set out how you go about notifying the authorities and distributing the estate, so if you are responsible for executing someone’s Will, you need to be aware of how it all works.

Who is responsible for arranging probate?

If the deceased has left a Will, it will name someone that they have chosen to administer their estate. This person is known as the ‘executor’ of the Will. In most cases, this will be a family member or close friend of the deceased. The executor is the only person who can apply for probate to administer the estate.

what does probate involve

If you have been appointed as an executor and you don’t want to administer probate yourself, you can appoint a professional executor. You may also want to do this if you’re faced with a particularly complex case. In fact, in complex cases, a professional executor may be essential. A professional executor will expect to be paid from the proceeds of the estate for carrying out this duty, and they will usually carry out the entire probate process and receive a fee for this also.

What does the probate process involve?

Every estate and every Will is different, and the exact probate process will depend on the instructions left in the Will and the assets and beneficiaries that the estate has. Here is the basic process for an executor:

  • Gather the full details of the estate’s assets and debts
  • Apply for a Grant of Probate, the legal document that gives you the authority to deal with the deceased’s property
  • Notify banks, building societies, and relevant government departments such as the council and HMRC of the deceased person’s death (most government departments can be notified in a single move via the Tell Us Once service)
  • Complete an inheritance tax return and pay any tax due
  • You receive a Grant of Probate
  • Repay any of the deceased’s outstanding debts
  • Distribute the rest of the estate according to the instructions left in the Will.

what does probate involve

Once all taxes and debts have been paid and all the inheritance has been passed on, probate ends. The process will take around a year for most estates, however, this will depend on the size and complexity of the estate. International probate can be more complicated and usually takes between six months and two years.

Can probate be contested?

Sometimes, disputes can arise during probate between the executor, beneficiaries, creditors, or tax authorities. These disputes can cause delays and if you aren’t already using a professional executor, you may need to list the help of a solicitor to advise on how to progress.

There are several ways in which probate could be contested. This could prevent you from even being given a Grant of Probate. In some cases, a beneficiary or relative of the deceased may enter a caveat, which can prevent or delay probate being granted. This might happen if two people are entitled to apply for probate, or if questions arise about the legitimacy of the Will. An individual can challenge or contest a Will if they believe:

  • The Will has been forged
  • The deceased had reduced mental capacity when writing their Will
  • The deceased was under undue influence when writing their Will
  • The person contesting the Will was financially dependent on the deceased and the Will doesn’t provide for them.

what does probate involve

When a caveat is placed on the estate, the person who placed it will need to state their reasons within eight days, or it will be removed. Otherwise, it goes to the courts to resolve and probate will be granted to the most appropriate person.

What if there isn’t a Will?

In many cases, someone may pass away without having written a Will. If this is the case, you cannot get a Grant of Probate. You can, however, administer the estate and distribute inheritance through a slightly different process. Instead of being distributed through the terms of the Will, the estate must instead be distributed according to the Rules of Intestacy. Only spouses, civil partners, children, and other close relatives can inherit under these rules and the law will decide this based on an order or priority, as follows:

  • Spouse or civil partner
  • Children
  • Grandchildren
  • Great-grandchildren
  • Parents
  • Siblings
  • Nieces and nephews
  • Other close relatives.

Do you need help and advice with obtaining probate, or are you looking to appoint a professional executor? At Bromfield Legal, we have qualified experts who are well placed to assist. Please contact us to find out more.