The Difference between Having a Will and Probate
21 August 2017
What is a will, what is probate, and what is the difference between the two? These are questions we're commonly asked by people whose loved ones have recently died. Below we explain the answers to these questions.
What is a Will?
A will is a legal document that you write during your lifetime. The main purpose of a Will is to set out who you want to inherit your money, property and other possessions when you pass away. These people are called your beneficiaries.
A will enables you to make other arrangements that will come into force when you die. For example, you can name executors who will be responsible for winding up your affairs and distributing your assets your beneficiaries. You can name legal guardians who will care for your children if they are under the age of 18. You can also specify any funeral preferences, such as whether you want to be buried or cremated.
If you die without a will, you are said to have died 'intestate'. Your estate (which is the collective word for everything someone owns when they die) will be distributed to your family members. The law will decide who gets what, regardless of any wishes you may have expressed while you were alive.
What is Probate?
Probate is the legal process that happens when someone dies. The main purpose of probate is to give a person (or people) the legal authority to deal with a deceased person's estate. These people are called personal representatives.
Probate enables the personal representatives to access the deceased person's assets, such as their bank accounts, property, and pensions. It means they can do things such as:
- Finalise utility bills
- Sell or transfer property
- Gather in assets, including pensions, stocks, shares and savings
- Liquidate (sell) all the assets in the estate
- Pay any outstanding debts using funds from the estate
- Calculate and pay any income tax or inheritance tax due
- Distribute the estate to beneficiaries (as set out either in the will, or the law).
With our Probate Complete Service we take full responsibility for getting grant of probate and dealing with the legal, tax (excl VAT), property and estate administration affairs.
Probate isn't needed every time there is a death. Generally there are two scenarios where Probate won't be needed:
- The deceased person's husband or wife is still alive, in which case assets that are jointly owned will automatically pass to the surviving spouse
- The deceased person owned very little – known as having a small estate
Otherwise, it's highly likely that the deceased's loved ones will need to go through the probate process.
Without probate, the deceased person's assets will effectively remain 'in limbo'. There won't be anyone with the legal authority to deal with the estate, so it can't be administered and distributed to the beneficiaries.
The Difference between Having a Will and Probate?
Having a will and probate are two entirely separate things. Yes, they both relate to events that happen after death. The difference is that a will allows the testator (the person writing the will) to record their wishes, whereas probate enables the personal representatives to action the testator's wishes.
The presence or absence of a will doesn't make a difference to whether or not probate is needed. People often say to us that they don't think probate is necessary because their loved one left a will. Actually it doesn't matter. If there isn't a surviving spouse and the estate is worth a certain amount, Probate will normally be required – regardless of whether or not there's a will.
The impact that a will has on probate is that it determines:
- Who should apply for probate – if there's a will, it's the executors named in the will. If there isn't a will, it's a beneficiary, and this person will be known as the administrator
- What type of grant should be obtained from the Probate Registry – if there's a Will, it' a grant of probate. If there isn't a will, it's a grant of letters of administration
- Who the estate is distributed to – if there's a will, to the beneficiaries named in the will. If there isn't a will, to the deceased person's relatives. There's an order of priority that sets out who should inherit the estate and in what proportion
So if you're loved one has recently died, it's possible that you'll need to go through the probate process – even if he/she left a will.