Most people are familiar with the term ‘Probate’ and the concept of ‘obtaining the Grant’, yet many do not have a clear understanding of the legal implications or procedure required. It does not help that 53% of adults have not discussed what should happen to their estate upon their death, leaving executors and family members uncertain and often overwhelmed.
Probate is a court-supervised procedure whereby effectively, a deceased person’s estate can be administered. It is where the Will is validated and the named executor is given the authority to collect, manage and distribute the assets in accordance with the Will.
A ‘Grant’ is the legal document issued by the Probate Registry that confirms the authority of the executor named in the Will.
If your loved one did not leave a Will, you may still need to apply for probate but an eligible close relative will apply for Letters of Administration under the intestacy rules instead. The deceased person’s assets will be collected, managed and distributed between relatives of the deceased in order of priority under the intestacy rules.
Register the Death: Within five days, the death must be registered with the local registrar. This will enable you to obtain the Death Certificate;
Tell Us Once Service: This is a government initiative that allows you to report the death to several government departments (such as HMRC, DWP and the DVLA).
Locate the Will: If you are struggling to find the Will, or uncertain whether a Will has been made, we are able to do a search across law firms in England and Wales to potentially see whether your loved one left a Will and where this may be located.
Identify the deceased’s Assets and Liabilities: You will need to identify the assets held by the deceased, including any joint assets. This will include any properties, bank accounts, investments and chattels. You will also need to ascertain whether the deceased had any liabilities. This could include a mortgage, personal loans and utility bills. If the deceased was discreet about their personal affairs, or experienced cognitive decline in later life, it may prove challenging to establish what assets or liabilities are involved.
Under the Administration of Estates Act 1925, an executor must exercise reasonable due diligence in locating assets in the estate. If not, the executor may face personal liability. In this case, they may have to compensate from their own funds, potentially be subject to tax penalties for underpaid tax and may be subject to legal claims from the beneficiaries.
Therefore, it is imperative that you ensure that the executor is thorough in ascertaining the deceased’s assets and liabilities. You should firstly search your loved one’s home for documents or letters from the banks or other financial institutions. Alternatively, speak to close family and friends to ascertain whether they had discussed their financial arrangements.
We can also assist. We use a tracing service which reaches out to many financial institutions and government bodies without you having to contact them individually. They will send us a Report detailing which assets may be/have been held by the deceased and we can reach out to them to inform them of the death.
Valuations: You are required to obtain valuations for the assets as at the date of death. You may also be required to obtain professional valuations, particularly for shareholdings or personal chattels. If there is a property, there are different valuations required dependent on the tax liability of the estate.
Calculate Inheritance Tax: Once you have obtained the date of death valuations for the assets and liabilities, you will need to ascertain whether any Inheritance Tax is payable. This will depend on the circumstances of your loved one, including whether they were married or whether the Will sets up a Trust, for example. There may also be various reliefs available, such as Agricultural Property Relief and Business Property Relief, which may need to be applied for. All of which we can help you with.
1. Submit Inheritance Tax Forms: This will depend on whether the estate is a simple or complex/taxable.
2. Complete the required Probate Forms and pay the Probate Fee: Currently £300 with no fee for estates which are under £5,000.
3. Send the Application to the Probate Registry.
The Executor/Administrator will receive the Grant of Probate or Letters of Administration.
1. Collect the assets: The Executor will close the bank accounts, sell the property, cash-in investment and sell any personal chattels.
2. Pay liabilities: This will include Inheritance Tax, pre-death or post-death Income Tax, Capital Gains Tax and any other liabilities due from the estate.
3. Distribute: Once all funds have been received and debts paid, you may be in a position to administer the estate and distribute to the beneficiaries according to the Will or Intestacy Rules.
4. Notify HMRC: to confirm that all tax obligations have been finalised.
Given the complexity and legal obligations involved, professional assistance is often recommended.
We offer comprehensive probate services, including will searches, asset tracing, obtaining valuations, tax relief applications, and full estate administration. We are able to explain the Will, administer/dissolve any trusts, ascertain whether any tax is payable, deal with any liabilities and importantly, help take the worry away from the Probate process.
Our award-winning private client team are here to help and advise on probate matters. For further information on all our private client law services, please click here. We have produced a series of podcasts on the probate and administration process which can be found here.
We offer an initial one hour fixed fee appointment with one of our friendly private client solicitors for £150 + VAT. This gives you the opportunity to talk your matter through with a solicitor, get their advice and then consider your options before deciding how to progress your legal matter. Please get in touch if you feel this type of appointment would be beneficial.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
