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information on Probate & Wills

Following a death the financial matters of the deceased will have to be managed. This will include their money, property, possessions and debts and is collectively known as their ‘estate’.  The procedure to follow will depend on whether they left a Will.

pianoLast Will & Testament

If the deceased has left a Will they will probably have nominated someone they wish to be responsible to carry out their wishes, this is known as the ‘Executor’ and it is likely to be a spouse, relative, friend, colleague or sometimes a professional.  The deceased may also have left further instructions and this is known as ‘Letters of Wishes’. It is the responsibility of the executor to ensure the deceased’s wishes are carried out.

Probate

The executor will need to apply for a ‘Grant of Representation’ at the local Probate Registry to give them the legal right to do so. The right to deal with an estate is known as ‘Probate’. In Scotland this is known as ‘Confirmation of the Estate‘.

Probate or Confirmation is nearly always needed when the deceased’s estate includes property or land held in their own name or jointly as a ‘tenant in common’ (where each owner has a distinct share which does not have to be passed on to the other joint owner).

But if the deceased’s estate is worth less than £5,000 (£10,000 in Northern Ireland or £36,000 in Scotland), probate or letters of confirmation are not usually needed, this is known as a ‘small estate’.

It is not always required to use a specialist to manage the probate process for straightforward estate handling but for matters of a more complicated matter it is recommended to use a specialist and details of local companies can be found in the Legal & Financial section of the Funeral Services Directory.

tall trees

Without a Will

If someone dies without making a Will this is called ‘Intestate’ , the person who has responsibility for dealing with the management of the estate is known as an ‘Administrator’.

Different rules apply in different parts of the UK as to the estate and how it is divided.

England, Wales & I Ireland

The spouse or civil partner will inherit the entire estate if it’s worth:

  • Less than £250,000 – if there are surviving children, grandchildren, etc, or
  • Less than £450,000 – if there are surviving parents, brothers or sisters

Over these limits, the estate could be distributed between the spouse and the rest of the family.  Unmarried or divorced partners normally won’t inherit anything under the intestacy rules.

Scotland

  • If there are no surviving children or other relatives, the surviving spouse or civil partner is entitled to everything.
  • If there are children, the spouse or civil partner is entitled to the house up to a value of £473,000 and all the furniture and furnishings up to £29,000.
  • The remainder up to £50,000 also goes to the spouse with the excess split between them and other family members according to Scottish Law.

Living Will

Unlike the ‘Last Will and Testament’ which is the final wishes of someone who has passed away a Living Will is to allow someone living to indicate what type of medical treatment you want to accept or refuse in situations where you may lack capacity to make or are unable to communicate your decisions at the time.

The term ‘Living Will’ doesn’t have a legal meaning but refers to either an Advance Decision or an Advance Statement. Further information is available on the Age UK website.

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