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July 23, 2019
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Is probate really required if I already have a Will?

Is probate really required if I already have a Will

Probate is a general term that is used to refer to the administration of the estate of a deceased person.

It is impossible to execute the will before going through the probate process. You will, however, need to have a grant first. Also, without probate, there can be complicated issues arising, which you, as the executor may not be able to solve.

A grant of probate refers to an official court document that is used to assure third parties such as building societies, banks and land registries that the will is valid. It also assures them that they are dealing with the right people, who have been appointed to administer the estate.

Wills and probate go hand in hand, which means that the will of the deceased cannot be acted upon unless the probate has been issued.

Probate is necessary when there is a will:

One of the major issues that are normally resolved through probate is the title deeds of properties for the deceased. Even if a will is present, the property of the deceased at the time of his demise is subject to probate, and this includes his bank accounts as well.

Probate will distribute the property and also do a legal transfer to the beneficiaries.

Dealing with the estate of a deceased person is a complicated process, and the executors appointed by the will have the obligation of ensuring that the terms of the will are understood, and if the deceased died without a Will, the rules of intestacy then come into play.
If you are the executor, your role has no limit and long after the will has been administered, you are still required to deal with any matters that may arise as a result of the estate.
You can also be held personally liable in case any mistakes are made during the administration process, and you may end up paying compensation to a beneficiary who may not have received their entitlement.

Common reasons why probate is extremely important:

  • Where there is no will, probate will be necessary in order to determine the beneficiaries and distribute the estate to them.
  • If there is a will, probate is also necessary for the same purpose as above.
  • If there are problems with the will – there are various issues that can arise from a will such as; the will submitted is not the final version, the will has some mistakes, the will is fraudulent, it was drafted when the decedent was of unsound mind, amongst many other will-related issues that can arise.
  • Probate is 100% required if the entire estate of the deceased was under his name, or if he owned properties under other names of people who are not mentioned in the will, meaning they are not part of the beneficiaries. In this case, the estate must go through probate in order to transfer the properties to the named beneficiaries.
  • If the deceased owned property in a joint partnership – this is what is commonly known as tenants-in-common. In this case, probate is necessary in order to remove the name of the deceased from the joint ownership and transfer the said properties into the names of the beneficiaries.
  • When there are no beneficiaries to the will, or if they happen to have predeceased the decedent, then probate will become necessary. This is a situation that can actually happen, where the deceased has no beneficiaries, and therefore the only way to deal with such an estate is through probate.

What to do before the process begins.

Before you begin the probate process, as an executor, there are a few things you can do to prepare yourself for the complicated process;

  1. Identify who are the beneficiaries of the estate from the will. Go a step further and list them down. This list should include every single information you can think of concerning them such as their names, their jobs, their social security numbers, etc.
  2. Put together a list of everything the deceased owned. This should be very comprehensive and must not leave out anything, as everything the deceased owned will be subdivided among his beneficiaries, and therefore if he had land, cash, bank balances, etc, they must be listed.
  3. List down all his debts – Remember the estate must settle all of his debts before his estate can be divided, and therefore it is important to know everybody he owed money to.

Final thoughts:

As long as the grant has been issued, the executor can decide to probate the estate personally, but there is so much more than meets the eye, and they must be extra careful because if anything goes wrong in an estate the executor is helped personally liable.

If you decide to start the process personally and mid-way through you get bogged down by the process, you can still go to court for assistance.

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