The Relationship Between Wills and Probate

Wills and Probate: Wills are a legally binding confirmation of who does what (e.g., Executors, Guardians, Trustees, etc.) and who receives what (e.g., Beneficiaries of the assets within your estate). When created locally by a suitably qualified and insured professional Will Writer, and in accordance with your specific circumstances and requirements, Wills are also powerful protective tools to ensure that your assets cannot be accidentally lost to risks such as the remarriage or marriage of your surviving spouse or partner, or their potential subsequent requirement for care for which they must pay.

It is not uncommon for a deceased spouse or partner’s assets, or their share of assets (such as property, savings, and investments), to be lost upon the death of their surviving spouse or partner if they have subsequently married someone else, thus unintentionally disinheriting your children as your original intended eventual beneficiaries.

Also, although there is no obligation for a deceased spouse or partner’s assets, or their share of assets, to be used to pay for their surviving spouse or partner’s subsequent care needs, this quite often happens automatically when a surviving spouse or partner has absorbed their deceased spouse’s assets directly into their own estate. Although not all Wills protect against this automatically, provided you ensure that yours does, then you can ensure that your assets, or your share of assets, pass directly to your children AFTER the death of your surviving spouse or partner, regardless of your surviving spouse or partner’s circumstances before their death.

Any care provision for a surviving spouse or partner would be undiminished in its quality however, as the state, rather than a deceased spouse or partner’s assets, would fund any shortfall instead. So what is the relationship between Wills and Probate?

Wills and Probate – What is Probate?

If there is a Will, then the people dealing with an estate are called “Executors”, and if there is no Will, then those people are called “Representatives” instead.

Applying for a Grant of Probate is a request for official and legally valid permission by Executors/Representatives to distribute an estate to the beneficiaries of a Will, or according to the law if there is no Will (known as the Law of Intestacy).

A Grant of Probate will usually be necessary if any of the following situations apply.

If the deceased person:

Owns property in their sole name or jointly as a “Tenant in Common” * with another person; and/ or

They have significant savings (approximately £25,000 plus) in one bank account or Personal Equity Plan (PEP) or Individual Savings Account (ISA) or Investment/Premium Bond holding; and/ or

If they hold more than approximately £10,000 in one shareholding (e.g., BT, Santander, Glaxo SmithKline, etc.)

(The variance in the figures above is due to differing requirements between the various banks, investment companies and share administrators).

If any of the above apply, then the Executors of a Will or Representatives of an estate must obtain permission from a government department known as the Probate Registry before the estate can be distributed to the beneficiaries according to a Will, or the law if there is no Will.  

Only once the Executors/Representatives have obtained this Grant of Probate from the Probate Registry can they then commence fully accounting for, and/or collecting in, and then distributing the relevant assets of a deceased person’s estate.

The Myth that you must use a solicitor!

Not only is it a myth that you must use a solicitor firm to obtain a Grant of Probate, but this is also an extremely expensive and unnecessary route to take. It is not uncommon to pay over £5,000 to a solicitor to obtain a Grant of Probate, and so-called “legal services” firms can often charge even more than this.  It is an unregulated and inconsistent marketplace where practitioners are free to charge whatever they like, so be aware that it pays greatly to shop around for a more cost-effective and local service.  Such companies prey upon Executors/Representatives when they are at their most vulnerable.

However, it benefits ALL beneficiaries for as little as possible to be expended in probate costs, as they then all receive a greater value of an estate value by inheritance as a result.

Grant of Probate

Some Executors are confident enough to apply for a Grant of Probate directly from the Probate Registry.  However, if Executors/Representatives are not confident to apply to the Probate Registry directly, they need not spend more than £1,000 to obtain the same outcome, merely by carrying out some worthwhile research. This can easily be achieved by using a local Probate Guidance service instead. As a result, Executors/Representatives obtain lower-priced full guidance as to how to correctly obtain a Grant of Probate.

*Property owned jointly as “Joint Tenants” means that if one co-owner dies, then the surviving co-owner inherits the deceased’s interest in that property outright by law and does not require a Grant of Probate. Property owned jointly as “Tenants in Common” means that each co-owner is free to gift their share of a property to people other than their co-owner, so a Grant of Probate will usually be required to achieve this.

For further information on Wills and Probate, without fear of consultation fees or obligation, please visit our Probate page.