If you have any difficulty in dealing with the deceased's property, possessions or guardianship of their children, get advice from a solicitor or the Citizens Advice Bureau as soon as possible.
The Legal Services Commission website gives advice regarding legal aid, as well as details of your nearest Community Legal Service Partnerships (CLSPs). These partnerships can help you find the services you need by bringing together organisations such as solicitors, advice centres and law centres. Using these sources of information you can find solicitors who specialise in probate.
Many solicitors are prepared to offer up to half an hour of legal advice for a small fee, some even offer a free initial consultation to discuss your situation.
The word "probate" is often misunderstood. It conjures up images of months of difficulty and delay. This is not inevitable and many simple probates are finished quite easily in a month or so.
What is it?
Putting it simply, a probate is a piece of paper, nothing more. It is a document issued by the Probate Registry confirming that an executor has the right to wind up an estate of the person who has died. The "estate" is the house, money and savings left by someone when they pass away. The "executor" is the person chosen in the will to sort out the estate and make sure it goes to the people named in the will.
Do I have to have it?
This depends upon the size of the estate. Quite often, when the estate is very small, no probate is needed.
How do I get it?
By filling in some forms. If the estate is small the forms do not have to give full details of it. The important form is the "executor's oath". This is not usually available from stationery shops but can be found in books about probate. It has to be sworn as being true.
Do I have to use a solicitor?
No, but it helps. You can also apply direct to the Probate Registry yourself. Most solicitors offer probate services and their fees depend upon the amount of work necessary and the size of the estate. Always ask them first.
In order for a will to be valid, it must be:
- Made by a person who is 18 years old or over
- Made voluntarily and without pressure from any other person
- Made by a person who is of sound mind. This means that s/he is fully aware of the nature of the document s/he is writing or signing and aware of her/his property and the identity of the people who may inherit
- In writing
- Signed by the person making the will in the presence of two witnesses
- Signed by the two witnesses, in the presence of the person making the will, after s/he has signed
A witness or the married partner of a witness cannot benefit from a will. If a witness is a beneficiary (or the married partner of a beneficiary), the will is still valid but the beneficiary will not be able to inherit under the will.
Although it will be legally valid even if it is not dated, it is advisable to ensure that the will also includes the date on which it is signed.
As soon as the will is signed and witnessed, it is complete.
What if there is no will?
Speak to a solicitor - it is safer in the long run because various laws affect who is entitled to wind up the estate and receive the money.
If the person who died was paying tax on income from investments, as a self employed person or as an employee, tell the tax office about the death as soon as possible. This will enable the deceased's tax affairs to be settled.
Depending on circumstances, this may involve paying more tax or claiming a repayment.
The particular tax office to contact will depend upon the deceased's circumstances, for instance:
- If the deceased was an employee or had a pension from a former employer, the pay section of the employer or pension organisation will know the deceased's tax office
- If the deceased was self-employed, contact the tax office nearest to the place of business
- If the deceased was unemployed, or retired without pension from a former employer, contact the tax office nearest to the home address