The relationship between Wills and Probate.

Probate 29/07/19 | Superadmin

When considering bereavement, two words often come to mind – wills and probate. They’re terms the majority of us have heard, and most of us would claim to understand them. Yet, when a bereavement occurs, we often find that our assumptions and ideas aren’t quite right. That can leave us attempting to untangle many complications at an incredibly difficult time.

The main complication which occurs here is the misunderstanding that wills and probate are the same thing. Others also make the mistake of assuming probate isn’t necessary where a will is in place.

In truth, though, wills and probate are very different matters, and both are necessary whether there’s a will or not. To clear up these complications, we’re going to uncover what wills and probate are, and the relationship between the two.

Wills explained

Of the two terms, most people have a better understanding of wills. Put simply; these are legal documents an individual can write during their lifetime setting out who should receive their property and other belongings in the event of their death. Wills also involve outlining things like who is the executor (The person who administers the instructions contained in the will), and the selection of legal guardians. It’s also possible to include burial wishes where applicable.

A will is vital for ensuring that property and finances are distributed per an individual’s request. Anyone who dies without a will is considered to have died ‘intestate.’ Regardless of any verbal wishes, this can result in even distribution of assets to family members. This alone can cause much upset and delays in distribution of these assets when decisions are contested.

Probate explained

Probate is the legal process of administering the distribution of assets after someone has died. It’s thanks to probate that relatives can take possession of the deceased’s estate. This is a necessary step whether a will is in place or not, as it ensures that official avenues and rights in law are always adhered to. The only cases where probate may not be required are when a spouse is still alive, or an estate is too small. However, this can often be a vague area and it is wise to consult a probate professional even in these circumstances The people granted probate in each case become personal representatives and are then able to take care of everything from property sales to inheritance tax. In the case where executors are selected in the will, this position will fall to them.

The relationship between the two

So, what is the relationship between the two? In most cases, wills and probate go hand in hand. In simple terms, the will is there to outline an individual’s wishes, while probate allows personal representatives to execute those wishes to completion. The two can also impact each other a great deal, with a will making a considerable difference to probate practices. The naming of an executor, for example, dictates who holds the responsibility for executing probate, while beneficiaries named dictates how probate is applied. Whether or not there is a will also impacts the type of probate grant necessary for each estate.

While these are two very different matters, it’s easy to see where the confusion between them largely lies. But, understanding the difference and relationship between wills and probate can make the bereavement process a lot easier on all sides.

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