DO I NEED A GRANT OF PROBATE? WHAT TO DO WHEN SOMEONE YOU LOVE PASSES AWAY?
Having a loved one pass away is a stressful time in the lives of the family and friends that remain. Besides the obvious immediate issues concerning the funeral and dealing with grief, the process of dealing with the deceased’s property and testamentary intentions can seem daunting and challenging. This guide will help you understand the decisions you have to make and what formal steps may be required to ensure the deceased’s estate is properly distributed.
WHETHER OR NOT YOU WILL NEED PROBATE OR LETTERS OF ADMINISTRATION?
The first step in dealing with any estate is to consult a lawyer who will help you decide what kind of process you need to go through to deal with all the assets in the estate. If the deceased did not own real estate and held minor sums in their bank account, it is likely that you will not need to go through an extended formal process to obtain those assets for distribution. Banks and other monetary institutions often accept a copy of the will (if there is one) and death certificate, as enough evidence to make payments to close family members of the deceased and to close accounts.
WHEN IS PROBATE REQUIRED?
If the deceased left a will and left substantial assets (such as property and shares) it is likely that you will need to go through the process of obtaining Probate. A Grant of Probate is a court process of proving the validity of the will of the deceased and therefore affirming the authority of the executor in dealing with the estate. You do not need to go to court, it is all done by sworn documents called affidavits. This process allows people to challenge the will if they believe it is not legitimate and allows others to make claims against the estate for any money they feel is owed. The costs of obtaining probate depend entirely on the value of the assets of the estate with the filing fees, and the rate that solicitors charge being linked to this value. Once obtained, a Grant of Probate allows the executor to recover the assets on behalf of the estate and distribute those assets according to the will.
WHEN SOMEONE DIES WITHOUT LEAVING A WILL?
If the deceased did not leave a will and left substantial assets, you will be required to obtain what is known as a Grant of Letters of Administration. This is a certified Court document that provides you with the legal authority, as an administrator, to deal with the estate. During the process, other family members may oppose your application to be the administrator or may seek some payment from the estate. While the filing fees are set for this kind of application in the same manner as the grant of Probate, the legal costs for letters of administration depend entirely on the work involved.
COMMON MISTAKES MADE BY FAMILY MEMBERS WHEN A LOVED ONE DIES
Some of the common mistakes made by family members include:
- Selling and dealing with assets before the formal Court process is concluded: This occurs mostly in situations where the deceased leaves no will, and there is nothing to dictate who should deal with the estate. Some examples include selling or using the car of the deceased, taking personal property from their homes and withdrawing money from their bank accounts.
- Not considering the liabilities of the estate: Many people forget that people often die with multiple debts and liabilities. These need to be paid out before any payments or transfers are made. It may also take time for creditors to emerge, so it may not be possible to obtain funds quickly after death.
- Finalising taxes of the deceased. More often than not, a final tax return of the deceased will be required, and perhaps even tax returns on behalf of the estate.
The most important thing to remember is that the process takes time and that assistance is there if you require it. Contact our team at Eleven Legal and we will be happy to guide you through the process, and make sure that the estate of your loved one, is wrapped up and finalised, as quickly, efficiently and effectively as possible.
