Probate Myths vs. Reality: Debunking Common Misconceptions
- Wills, Trusts & Probate
- 19th Oct 2023
Probate is often misunderstood, leading to misconceptions that can cause unnecessary stress and confusion. Myth 1: Probate is always required. Probate is the legal process of proving a Will and administering the estate of a deceased person. To prove they have authority; the executors will need to apply to the Probate Registry for: Grant of […]
By Sophie LennonMLP Law
Probate is often misunderstood, leading to misconceptions that can cause unnecessary stress and confusion.
Myth 1: Probate is always required.
Probate is the legal process of proving a Will and administering the estate of a deceased person. To prove they have authority; the executors will need to apply to the Probate Registry for:
- Grant of Probate if the deceased person made a Will; or
- Letters of Administration if the deceased person did not make a Will.
However, this is not always necessary. Assets that are owned jointly, including properties, or cash under the value of £50,000.00 (this varies from bank to bank), will not require probate. Financial providers for which the deceased person had accounts with should confirm whether they will require a Grant of Probate/Letters of Administration to close the account.
Myth 2: It’s a speedy process.
We wish! In reality, probate can take several months, or even longer, to complete. This timeline largely depends on the complexity of the estate, potential disputes among beneficiaries, and the efficiency of the executor. Executors must gather assets, pay debts, and distribute the estate according to the Will or intestacy laws. Delays can occur if there are disputes, complications, or delays with the Probate Registry.
Myth 3: Probate is expensive.
This depends entirely on the deceased person’s estate and the work involved. Probate fees depend on the value of the estate and the overall complexity, which depends on the number of assets/liabilities in the estate and any disputes.
Our legal advisors will review the estate with you and then provide you with an outline of the costs.
It is also important to note that any legal fees incurred during the probate process are payable by the estate and not by you personally.
Myth 4: A Will avoids probate.
The purpose of a Will is to set out your wishes for what happens to your assets after you die. If a person dies intestate (without making a Will) the process can be more time consuming and costly for their executors. A properly executed will can make the probate process smoother, but it doesn’t eliminate it.
Myth 5: Executors cannot be held personally liable.
Executors can be personally liable if they mishandle the estate. Executors have a fiduciary duty to act in the best interest of the estate and its beneficiaries. If they fail to perform their duties correctly, they can be held personally responsible for any financial losses incurred by the estate. This is a critical responsibility that requires careful attention to detail and compliance with the law, and why having the professional support of an experienced probate lawyer is so important.
Myth 6: Probate is always a source of family disputes.
While family disputes can arise during probate, they are not inevitable. Open communication and proper estate planning can help minimise the potential for conflicts among beneficiaries. In many cases, clear instructions and a professionally prepared Will can reduce the likelihood of disputes. It is essential to keep lines of communication open to address any concerns that may arise during the probate process.
Myth 7: DIY probate is always the best option.
While some individuals choose to handle probate without legal assistance, it’s not always the best choice. Probate can be a complex and legally intricate process, and one mistake can lead to costly delays and complications. Hiring a lawyer experienced in probate matters can ensure that the process is handled correctly and efficiently.
About the expert
Stephen is the Owner of MLP Law and leads our Commercial, IP and Dispute Resolution teams which provide advice on all aspects of the law relating to mergers, acquisitions, financing, re-structuring, complex commercial contracts, standard trading terms, share options, shareholder and partnership agreements, commercial dispute resolution, joint venture and partnering arrangements, IT and Technology law, Intellectual Property, EU and competition law, Brexit and GDPR.
Interested in working with Stephen?
Let’s start by getting to know you and your business - either on the phone or in person. Complete the form below and we’ll be in touch shortly.