Probate: Real life v television
Having qualified as a solicitor in September 2014, I now deal with a whole variety of matters, from trusts and tax planning to wills, lasting powers of attorney and the administration of estates.
I thought I would begin my blog life by talking about some of the common myths surrounding probate. People have many different ideas about what the process actually involves, often influenced by television and the media.
You've seen dramatic funeral scenes in the soaps, some even featuring a drunken brawl at the wake. You may have seen a more Dickensian portrayal of the process after a loved one dies, with the whole family gathered round a flickering candle, waiting with bated breath for the solicitor to read the will.
The reality is somewhat different. What usually happens is we receive a telephone call from a family member, usually to ask how to register the death and asking about funeral wishes. The clients will then come back to us when they are ready for us to deal with the estate.
What follows is a process of determining the deceased's assets and liabilities, whether these be in the form of property, cash, shares or other investments, before calculating any inheritance tax which may be payable and drafting formal documents for the personal representatives to sign. We cannot apply for the Grant of Representation (the document which gives authority to deal with the deceased's assets) before this. Once the Grant is received, we can begin the process of settling liabilities, producing estate accounts and making distributions to beneficiaries in accordance with the terms of the will or under the intestacy rules. This can be some time after we started the process!
Another myth is that executors can make alterations to a will where they think that a particular gift is "not really intended". The executors may not be enamoured by the prospect that a particular relative is going to get the diamond jewellery, but they are not legally allowed to give it to someone else if this contradicts the wishes as set out in the will. However, if an executor (or indeed anyone else) has been left a legacy under the will, he or she is within their rights to give this to someone else instead.
The length of time which it takes to wind up a person's estate very much depends on the complexity of the assets and, often, the helpfulness (or otherwise) of the various organisations with whom we have to liaise. Sadly, the way in which probate is represented in books or on television means that often people misunderstand the process and think that the day after the funeral, the solicitor will turn up at their house with a suitcase full of cash, and that the whole matter is put to bed in a matter of days. Alternatively, you might hear the word "probate" and shudder at the thought of having to deal with this, imagining that it always takes years and costs hundreds of thousands of pounds.
The reality is somewhere between the two, and it is our role to explain to our clients the steps required and the likely timescale.
You can see that administering an estate is rarely as shown on television. It is a process with which most of us are not familiar, as it is something that we fortunately do not have to deal with very often in our personal lives. I hope that this blog post has debunked some of the myths and has given you an insight into what really happens.