What’s the difference between a will and probate?
Wills and probate can seem daunting but an understanding of the probate process and the differences between wills and probate make things more straightforward.
Simply put, the will is the legal document that contains instructions, and probate is the process that must be carried out to enact those instructions.
What is a will?
A will is a legal document that states what happens to your money, property and possessions – known as your estate – after you die. It also includes details about who will care for your children, and who the executors to your will are – the people responsible for carrying out your instructions.
Anyone over the age of 18 can write a will, and all adults should have one regardless of how much money they have. Solicitors are commonly used for will writing to ensure that your will says what you want it to and it is valid.
There are a number of reasons that a will can be deemed invalid, including not having sufficient testamentary capacity, or being unable to fully understand the implications of your decisions, being considered unduly influenced, or most often, the signing of the will not being witnessed properly. If a will is deemed invalid, the same rules apply as when there isn’t a will at all, and your wishes will not necessarily be carried out.
What is Probate?
Probate is the process of administering someone’s estate after their death. This process includes dividing the estate up according to instructions left in the will as well as ensuring all relevant taxes and debts are paid. Generally, if there is a will, the named executors will carry out this process.
If there is a will, the first step in the process is applying for the ‘Grant of Probate’, which is a legal document that grants the executors the lawful right to administer the will.
While some people carry out probate themselves, it is common to involve a probate solicitor in the process to ensure all the forms are filled out correctly – errors can cause delays or even cost additional money which will be taken out of the estate.
What happens if there isn’t a Will?
If someone dies without a will, or a valid will, it’s referred to as dying intestate, which means a court will intervene and administer the estate and inheritance according to the set rules of intestacy. This means only a spouse or civil partner, children and other close relatives can benefit from the estate, excluding unmarried partners and step-children.
If your estate is subject to intestacy rules, people you would have liked to inherit may not and those that do may not benefit in the way you would have liked.
If you have children and don’t appoint a guardian in your will, they will become the responsibility of the Court who will decide who should care for your children on your behalf. While the decision is being made, your children could end up in care. If you have a will, you are able to choose exactly who should look after your children, leave guidance for your chosen guardians to follow in terms of your wishes and ensure financial provision is in place.
Why should I have a will?
There are many reasons to make a will, from providing for your loved ones after you’ve passed and relieving some of the stress on them, to ensuring your children are properly taken care of and deciding to who you want to entrust the task of carrying out your final wishes.
Even if you don’t have any surviving family, you may want to leave your estate to a friend or a charity – if you don’t have a will and no surviving relatives, your entire estate will go to the Crown.
The earlier you make your will the better, and you can update it at any time in the future.
How can Shaar Bridge help?
Shaar Bridge’s specialist team are here to guide you.
Jaffar Shah is the Managing Partner of Shaar Bridge Solicitors and is known for his aggressive litigation and advocacy.