Most People Are New To Probate – Here’s The Most Common Answers To Questions You May Have

The question of whether or not probate is needed can be a confusing one.

Sometimes it will be easy to determine – for instance, if the deceased person had a small amount of money in the bank and owned nothing else, probate is unlikely to be needed. However, if the deceased owned a property in their sole name, owned a property as tenants in common, or had any high value assets, probate will be almost certainly required.

For many people who are dealing with the death of a loved one, further advice, guidance and support is needed, and our probate specialists can help you to find out for certain whether or not probate is needed in your circumstances.  Please contact us for a no-obligation conversation and we’ll help you determine if probate is needed for your particular circumstance.

If probate is needed but you don’t apply for it, the beneficiaries won’t be able to receive their inheritance. Instead, the deceased person’s assets will be frozen and held in a state of limbo. No one will have the legal authority to access, sell or transfer them. If you don’t apply for Probate, then the deceased’s assets can’t be accessed or transferred to any of the Beneficiaries. Probate gives a named person or persons the legal authority to deal with a deceased person’s assets.

While the presence of a Will can make the probate process quicker, this is not always the case. On average, in England and Wales, it takes around 3 months to obtain the Grant of Probate and a further 3-12 months to complete the Estate administration process, depending on the types of assets to be dealt with, regardless of whether or not there’s a Will.

It can take longer than this though and there are a number of delays that can occur along the way. For example, if a property needs to be sold but there are issues with the sale, this in turn will delay the probate process.

A Personal Representative is allowed 365 days to administer the estate and distribute the deceased’s assets to the Beneficiaries. This is called the Executor’s Year. However, this isn’t a strict deadline and complex Estates often take longer than this to complete. Providing that the person doing the work is acting in good faith and can justify the delay then this is unlikely to be an issue.

It is worth noting, however, that there are still some strict Inheritance Tax and other deadlines which must be met during the Estate administration.

First there is the Grant of Probate which involves obtaining a document which unlocks a deceased’s assets. This allows the assets to be dealt with and distributed according to the deceased’s Will.

Secondly, the Estate Administration then takes place which involves dealing with the estate, collecting in any assets, paying any funeral costs and other debts, putting a notice in the Gazette, distributing the estate to the beneficiaries and preparing final estate accounts.

This will depend on whether you opt to instruct us to apply for the Grant of Probate only,  or if you wish us to handle the full Estate Administration.

Our Probate Only services start from just £785 and our full Estate Administration services are costed on an individual basis but are considerably less than banks and solicitors and we have no hidden fees.

Our probate practitioners are authorised by the ICAEW which means we are legally able to carry out both the Probate Only service and the Estate Administration services and we are covered by professional indemnity insurance.

Click here to visit our page setting out the various pricing options where you will find everything clearly explained and fully transparent.

Probate can be a complex and time consuming process, involving a significant amount of legal, tax and administrative work. The main Executor/Administrator duties that need to be carried out include:

• Valuing the Estate
• Calculating Inheritance Tax liability
• Liaising with HM Revenue & Customs and paying Inheritance Tax
• Contacting beneficiaries
• Applying for the Grant of Representation
• Collecting in the assets and selling or transferring these
• Settling outstanding debts
• Preparing the Estate accounts
• Distributing the remaining Estate to the beneficiaries

It’s important to bear in mind that whoever carries out this work can be held personally liable for any mistakes made. So, while deadlines do need to be met, it’s important not to rush these steps.  Our full probate service takes the worry out of completing these as we can do all of this for you. All of our work is covered by our professional indemnity insurance policy.

There’s no definitive rule on how soon after death probate should be started, but it’s a good idea to begin this process as soon as you feel able to do so. You may find that you are unable to deal with any of the deceased’s assets until you have obtained the Grant of Representation from the Probate Registry, and this can often take around 3 months to process, sometimes longer.

Some things that will need to be done straight after the death include registering the death, securing the property (if it’s empty), contacting insurers to check that policies are still valid and notifying organisations such as the deceased’s bank and the Department for Work and Pensions (DWP). You can find a list of tasks that need to be undertaken on our Probate Help page by clicking here.

When you make an application for probate to the Probate Registry, you must submit the original will to be proved.

Finding the original will

When a will is made, the Executor/s are usually told where the will is stored. We recommend that a thorough search of the deceased person’s paperwork is done to locate a will, or to locate any reference to a will being held by a law firm or will writing services company. If a solicitor, lawyer or other professional has drafted the will, then it may be held with them. It’s also possible that a bank may be storing the will.

Executors of the will are entitled to obtain a copy of the will from the solicitor. Before the will can be released, the Executors have to prove that they are who they say they are (providing proof of identity) and provide evidence of the person’s death by providing an original death certificate).

In England & Wales there is no central register of wills and sometimes the firm of solicitors which may have drafted the will has either closed down or been taken over. This may make it difficult or impossible to find the original will.

If you know that the will was made by solicitors and it was not revoked, you can contact the Solicitors Regulation Authority (SRA) Intervention Archives department. When the Solicitors Regulation Authority closes down a firm, they take all the documents and papers that relate to its clients, and so the SRA may be able to locate the original will for you.

Other options include contacting the London Principal Probate Registry who have a wills storage facility. In more recent years, a company called Certainty have kept a register of wills and can conduct a search of the register for you for a small fee of £30.

Initially, it is only the Executors who are entitled to see the will, and they do not have to disclose the contents of the will straight away. However, they might not be able to close accounts or sell assets such as property and shares until the Court has issued a Grant of Probate, this being confirmation of the Executor’s legal authority to administer the estate.

When the Grant has been issued the will becomes a public document and anyone can apply to the Court to get a copy of the will for £1.50 by visiting the Government’s website.

When an adult person has died in England or Wales, their assets such as their property, money, financial affairs and possessions must be liquidated (sold) or transferred, their liabilities settled and the balance paid to their beneficiaries. This is known as Administering the Estate.

When someone dies without having a valid Will, this is known as dying Intestate. In this situation, and also if there are no beneficiaries stated in a valid Will, the people who benefit from the Estate aand who can deal with the estate are determined by laws commonly referred to as the Rules of Intestacy.

Put simply, this means that if you die without a valid Will, the law will determine who should be allowed to administer the estate (and apply for Probate) and who should receive everything you own, from your bank accounts to your pets.

Intestacy rules can be harsh, as they often don’t allow for modern family relationships. They only recognise the next-of-kin as those people entitled to administer and receive the Estate, so in many Probate cases when there is no Will unmarried couples, unregistered partners, step children, step brothers and sisters will not inherit anything at all.

When probate without a will is required, an application must be made to the Court before the legal administration of the Estate can begin.

The Intestacy Rules determine who will benefit from an Estate. This can be an involved and complex process, as the family tree will need to be very clearly understood. Broadly, the order in which the law determines who should deal with the estate when there is no will is as follows:

1. Spouse
2. Children (or if they died earlier, their children)
3. Parents
4. Siblings (of if they died earlier, their children)
5. Half siblings (of if they died earlier, their children)
6. Grandparents
7. Uncles and aunts (of if they died earlier, their children)
8. Half uncles and aunts (of if they died earlier, their children)
9. The Crown under Bona Vacantia rules
10. A creditor of the estate

You will need to work down the list until you reach somebody eligible, and where there is more than one person eligible in the same class, those people are all equally entitled to deal with the estate.

However, the list above does not exactly mirror who may inherit an estate where there is no will, although it is similar in some respects.

Due to the complexities of Intestacy law, cases of Probate with no valid Will can have a greater risk of mistakes being made in the identification of the Estate administrators and beneficiaries. Estate administrators can be held personally financially liable for any loss resulting from a breach of their duty, even if any mistakes made were genuine errors.

We suggest that intestacy cases are best dealt with by specialist Probate Practitioners, such as us.

In short, no you do not need to use a solicitor.  Many people falsely assume that you need to use a solicitor for the probate process. However, you usually only need to use a solicitor if the Will is contentious.

You can use a professional probate practitioner organisation such as us. We are  authorised by the Institute of Chartered Accountants in England and Wales to carry out the reserved legal activity of non-contentious probate.

You can handle probate yourself, but we’ve found that many people don’t want the stress and worry of this when they’re already going through an incredibly difficult time following the loss of a loved one.

An Executor is the person (or people) who have been named in a will to administer the estate of the deceased. Sometimes they will also appoint a Trustee, who will be responsible for managing any ongoing Trusts that are specified in the will, such as a property trust, or a trust set up for children.

Often the same people are named as both Trustees and Executors. To clear up any potential confusion between these two roles, the following information outlines how they differ and the main duties of each.

TRUSTEE

When a Trust has been established as part of the will, a Trustee needs to be specifically named in the will. The Trustee will then become responsible for receiving and managing this part of the inheritance on behalf of the Trust or beneficiary.

After the Executor has distributed this part of the Estate to the Trustee, the Trustee will be free to carry out their role in accordance with the terms of the Trust. This includes treating all the beneficiaries and their interests fairly, as per the duty of care under the Trustee Act 2000. This falls outside of the estate administration.

The main duties and responsibilities of this role include:

• Administering the Trust, including distributing its assets to any beneficiaries, whilst complying with its terms.
• Deciding when and if any beneficiaries will receive payments, according to the Trust terms.
• Preparing and keeping records of any statements, documents, and tax returns – along with making tax decisions relevant to the Trust.
• Ensuring assets are safe, and that all account records are secure and in order.
• Communicating all relevant information, including accounts, tax reports and any concerns to the beneficiaries when required.
• Investing any Trust assets effectively, so that they are preserved and productive for any beneficiaries.

When a beneficiary is under the age of 18, a Trustee will likely be appointed to look after any inheritance until they come of age.

EXECUTOR

An Executor will also be officially named in the Will. More than one person can be named as an Executor, and they will be legally responsible for administering the Estate of the deceased. They will also be fully entrusted to carry out the terms of the will.

This can be an extensive and time-consuming role, and carries a significant amount of responsibility, along with potential liability. It may also require a certain amount of knowledge on trusts, beneficiaries, legal responsibilities and estate process in order to carry out their duties correctly.

As well as potentially needing to apply for a Grant of Probate, which will give them legal authority, the Executor will have a number of important responsibilities and duties, including:

• Issuing notifications to banks or building societies and pension providers, along with potential notices of probate and statutory notices to beneficiaries.
• Valuing all of the Estates assets and liabilities.
• Paying off any debts and expenses from Estate assets, as well as planning for any cash and liquidity needs.
• Preparing accounts in case Inheritance Tax is payable to HM Revenue & Customs, then arranging to pay this. Funds may need to be raised before probate can be applied for.
• Distributing any assets to the beneficiaries in accordance with the will.

Once the beneficiaries have issued receipts confirming they have received payments they were due from the Estate, the Executor can be discharged from their duty as administrator.

We are authorised and regulated non-contentious probate practitioners and we understand that the roles of Executor and Trustee can bring complexity, pressure and stress, so we want to help you get things done correctly.

If an executor named in the Will dies before the deceased and before the grant of probate has been issued by the Court, what happens next depends on what the Will says. If there are other named executors in the Will, it would be their responsibility to deal with the estate.

If all of the named executors have died before the deceased then it’s likely the beneficiary or beneficiaries who are receiving the largest proportion of the estate would have the right to administer the estate. A maximum of four executors can act during probate and we would always recommend that two executors act to minimise the risk of this situation arising.

If there are more than four beneficiaries with equal shares of the estate, they are all equally entitled to act as executor, but only a maximum of four can do so. It is up to the beneficiaries to decide between them who should act and administer the estate.

With our Estate Administration service, we take full responsibility for getting the Grant of Probate and dealing with the Legal, Tax, Property and Estate Administration affairs.

If the executor dies after obtaining the grant of probate

If the executor dies after obtaining the grant of probate, but before they have completed the administration of the estate, what happens next depends on what the Will says. If the Will names any additional executors, then they would be responsible for stepping in. If no other executors are named, find out whether the executor who died left a Will.

If the executor has left a Will then it becomes the responsibility of their executor to finalise the original estate. This is called the Chain of Representation. The grant of probate that was issued to the original executor must be revoked by the Probate Registry and the new executor must make a new application for a Grant of Probate in their own name.

If the executor who died didn’t leave a Will then, again, it’s likely that the beneficiary or beneficiaries who are receiving the largest sum of the estate would want to deal with the Estate.

The Grant of Probate that was issued to the original executor must be revoked by the Probate Registry and a new application made. Any executor who has previously renounced their role will not able to take the place of the executor who has died.

Any situations that fall in to these categories or similar would certainly require professional advice to ensure things are dealt with correctly and we are happy to advise in these situations.

Not all of the Executors named in a Will have to apply for probate, although this can sometimes be the most logical option. If some Executors choose not to be involved in the administration of the Estate, then they have a couple of options;

a). Renouncing executor duties.  Any Executor who does not wish to have an active role in winding up someone’s affairs when they die has the choice to resign or “renounce” their right to apply for a Grant of Probate. This will be by way of a formal “Deed of Renunciation”. A renunciation is usually final, and once it has been sent to the Probate Registry, it can only be retracted or withdrawn with the consent of a District Judge or Probate Registrar. It is important to consider this if you are an Executor who is considering renouncing.

b). Probate ‘power reserved’ letter

An Executor named in a Will can also choose to have Power Reserved to them. It is a requirement of the Court that any Executors who are not applying for a Grant of Probate be served with a “Notice of Power Reserved”. This is a formal written notice from the acting Executor or Executors, advising that they are intending to apply for a Grant of Probate in the names of the acting Executor or Executors only.

The Grant of Probate issued by the Probate Court will state the name of the acting Executor or Executors but the Executor who is not named on the Grant will be known as “Power Reserved. This means that they can seek to become an active Executor at a later date.

Applying for a Grant of Probate with power reserved to others can be particularly useful in situations where for example an Executor lives in another country and it would be impractical for all of the paperwork to be signed by all or both Executors named in a Will.

Unlike a renunciation, an Executor who has power reserved to them can still choose to become involved in the administration of the Estate at a later time if they want or need to.

When an application is made to the Probate Registry for a Grant of Representation, then an Inheritance Tax form will need to be submitted with this application. This will include a calculation of the value of the Estate as well as a calculation of any Inheritance Tax that is due. The forms are required even if there is no actual tax to be paid. This is so that HMRC know that no tax is due.

If Inheritance Tax is payable, then this will need to be paid (or partially paid) by the end of the sixth month after the death. If this deadline is missed, HM Revenue & Customs will charge interest on the outstanding amount up until it is paid.

Yes. The Estate’s beneficiaries may decide for a number of reasons that they wish to amend the way in which assets in the estate are distributed. The reasons may include a potential tax saving, or to avoid risks to the estate assets in the event of care fees if a large sum is left to an elderly beneficiary, or to avoid the risk of double taxation in the event that a beneficiary dies shortly after they inherit. If the beneficiaries choose to alter or redirect their share of the inheritance a Deed of Variation will be required. This can be done at any time after the death, but it will need to be signed within 2 years of the death. If it is signed after this point, then it will not be treated as valid for Inheritance Tax purposes, which can have significant implications on the Estate’s Inheritance Tax liability. A deed of Variation cannot disinherit anybody unless they agree to it. We can advise on the merits or having a Deed of Variation and is very much dependent on the circumstances of not just the estate but also the beneficiaries.