Has Probate Been Applied For?
A grant of probate or Grant of representation is the legal proving of a will. It is a document granted by the probate office to the executors or administrators confirming their right to administer the Deceased’s Estate. When probate is granted, it is made public record along with the will if there is one. A new probate record will appear online 2 weeks after the grant has been issued. If you believe probate has been applied for on an estate of someone who has passed away within the last 6 months you can apply for a ‘Standing Search’. This means if the grant is issued you will receive a copy. If a grant of probate has not been issued on an estate you believe you are an executor for, there are some actions you can take to ensure the estate is administered according to the deceased’s wishes and the law. These actions can vary depending on the circumstances. There are many circumstances in which it would be necessary to locate a grant of probate. If there is a valid last will and testament of the Deceased it will be made public alongside the grant of probate. If there is no will in place the Rules of intestacy must be followed. If you are concerned that the correct legal actions have not been taken it may be helpful to confirm the wishes of the deceased according to their will. When applying for probate all executors named on the will must be accounted for or probate will not be granted.
If an executor cannot be found it must be proved that reasonable effort was made to locate them. If probate was granted on an estate where you were named as an executor and you were not informed you should seek legal advice. It is an executor’s duty to administer the estate according to the deceased’s wishes as stated in the will. This includes locating and informing all the named beneficiaries. The executor must prove they have made reasonable effort to locate them. An executor must inform the beneficiaries that they are mentioned in the will but does not have to disclose any information in regards to other beneficiaries or the details of the Estate. If you are aware that an Estate has been administered and distributed and you have not received your inheritance, after checking that probate has been granted and confirming you are a beneficiary, you should seek legal advice. An example in which this situation applies is when it appears the deceased was due to inherit from someone that has predeceased them. If the assets they were due to inherit cannot be accounted for or have not yet been transferred into their Estate it could be helpful to check the terms in the will of the person who passed away first.
Everything owned by a person who has died is known as their estate. The estate may be made up of:
• money, both cash and money in a bank or building society account. This could include money paid out on a life insurance policy
• money owed to the person who has died
• property, for example, their home
• personal possessions, for example, their car or jewellery.
If the person who died owes money to other people, for example, on a credit card, for fuel, for rent or a mortgage, this comes out of the estate. The estate of the person who has died is usually passed to surviving relatives and friends, either according to instructions in the will, or if the person dies without leaving a will, according to certain legal rules called the rules of intestacy. The person dealing with the estate of the person who has died is called an executor or an administrator. An executor is someone who is named in the will as responsible for dealing with the estate. An executor may have to apply for a special legal authority before they can deal with the estate. This is called probate.
An administrator is someone who is responsible for dealing with an estate under certain circumstances, for example, if there is no will or the named executors aren’t willing to act. An administrator has to apply for letters of administration before they can deal with an estate. Although there are some exceptions, it is usually against the law for you to start sharing out the estate or to get money from the estate, until you have probate or letters of administration.
The executor or administrator (also called the personal representative) takes responsibility for dealing with all of the estate. This involves:
• finding all the financial documentation belonging to the person who died
• sending a copy of the death certificate to the organizations that hold the money of the person who has died. Ask them for confirmation of the value of the money held at the date of death and the amount of income received during the last tax year up to the date of death. Also ask them to freeze the bank accounts so no one can take money out without the correct legal authority
• opening a bank account on behalf of the estate
• finding out details of money owed to the estate
• finding out details of money owed by the person who has died
• preparing a detailed list of the property, money and possessions and debts in the estate
• working out the amount of inheritance tax due and arranging to pay it
• preparing and sending off the documents required by the probate registry and HM Revenue and Customs
• when probate or letters of administration has been granted, collecting in money belonging to the estate from banks, insurance companies, pension funds and building societies
• paying debts, expenses and fees, such as solicitors’ fees and probate fees
• sharing out the estate, as set out in the will or according to the rules of intestacy.
If it appears that there are not enough assets in the estate to cover outstanding tax, expenses, bills and other liabilities, you should seek the advice of a solicitor. Administering an insolvent estate can be complicated.
How to apply for probate
Before you file the forms applying for a grant of probate, you’ll need to value the size of the estate.
• Register the death: First, you’ll need to register the person’s death. This needs to be done within five days in Utah
• Value the estate: You will need to go through the deceased’s papers and bank statements to establish their assets and liabilities, and find records of any other accounts they hold. For some estates, this is straightforward, but others are far more complex, with multiple investments, properties and personal belongings to consider.
You’ll need to contact the following institutions:
• banks, in relation to cash assets and accounts
• lenders, including for mortgages, credit cards and any loans
• fund managers or stockbrokers
• pension providers
• the local government in relation to outstanding council tax
• the Department of Work and Pensions
• HMRC in relation to outstanding tax.
• File probate applications: After assessing the size of the estate and what’s included, you should be in a position to complete a probate application form, or you can apply online here. Once you have worked out the details of the estate, the next stage is to complete a probate application form (PA1).
• File inheritance tax forms: If you are applying online, you’ll need to provide the inheritance tax reference and the value of the estate during your application. You will also need to upload a copy of the death certification.
Probate Research Steps
• Determine where the deceased was living at time of death.
• Find out where the records for that probate court jurisdiction at that time are now housed. Remember that the boundaries and names of counties might have changed. If the county (or state) has changed, then the records will be filed with the records in the county at the time of death, not under the county’s name as it is now.
• Find the index of the probate records you want. This will be at the archive that holds the probate records. Look on-line for a Web site of the likely archive. Many archives now have Web home pages with holdings information, telephone numbers, and directions for getting there. The probate index you want might even be accessible on-line. Some indexes and abstracts are also published or are on microfilm. Archives and research libraries can help you find these.
• If necessary, go to the archive.
• Look in the index for the deceased’s name. This will usually be listed alphabetically by surname. Find and note the docket number. Usually the date of probate is also listed, and this is usually fairly close to the date of death.
• Be thorough. Look also under the names of relatives of the deceased you might be surprised to find a file full of relevant documents.
• Make a list of files you wish to see and give these to the clerk, who will retrieve the files for you. If the files are old and are in a storage facility off-site, it might take several days for the request to be filled. This is all the more reason to make the request on-line or by telephone if you can.
• If files are missing, and they sometimes are, probate record books might give some evidence of the probate. Probate record books are not likely to contain all the information that is/was in the actual file, however.
• Examine the files and make notes. The cost of making photocopies will vary from archive to archive. It may be as little as 15 cents per page to a dollar or more per page.
• Return the original file, as you found it, to the clerk.
• Label and file your findings, being sure to note the name of the archive, address, telephone number, Web site address, and the date you did your research there. I also usually pick up an information pamphlet at the archive and file it in a dated folder of its own along with address information, driving directions, and helpful archivists’ names, for future reference.
Documents You Might Find in Probate Files
The documents found in a probate file will vary radically. They may range from a single letter to a sheaf of court and family documents.
If the file represents proceedings to settle the estate of a deceased, its contents might include…
• a will, if there was one
• codicils (amendments) to the will
• a petition for an executor or administrator
• probate of the will
• a list of heirs or devisees
• an inventory of the deceased’s estate at time of death
• a report of the committee for partition when heirs cannot agree amongst themselves about how to divide the estate
• receipts from heirs and devisees
• a closing statement by the court
• an inventory of real estate and stocks and bonds held in joint tenancy, even though not part of the probate proceedings
If the file represents a name change, its contents might include…
• a petition for a name change
• a court decree
If the file represents adoption proceedings, its contents might include…
• a petition for adoption
• a deposition regarding the character of the prospective parents
Probate records are very useful for family historians because:
• They are often the only record for the time period before census records where all members of a family might be listed
• They can give vital information such as localities that the individual is associated with.
• They were recorded much earlier than birth, marriage, and death registration.
Probate records were not created for every person who died. Courts probated estates (with or without a will) for fewer than 10 percent of English heads of households before 1858. However, as much as one-fourth of the population either left a will or was mentioned in one.
While probate records are one of the most accurate sources of genealogical evidence, they must be used with caution. For example, they may:
• Omit the name of the eldest son who received his inheritance according to law; the names of others who had previously received their inheritance; or any deceased family members.
• Mention children from a spouse’s previous marriage.
• Mention a spouse who is not the parent of the children named.
• Give inaccurate relationships of people mentioned in the document
There are three steps to locating probate records.
• Determine the parish/city and the year in which your ancestor died.
• Determine the court or courts that had jurisdiction over the parish/city.
• Search the indexes and records of the court.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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