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Probate

 
 
 

When a person dies, someone has to deal with their affairs. This is called ‘administering the estate’.

If the person who has died leaves a will
If the person who has died leaves a will, it will usually name one or more people to act as the executors of the will – that is, to administer the estate. If you are named as an executor of a will you may need to apply for a Grant of Probate. This is an official document which the executors may
need to administer the estate. It is issued by a section of the court known as the Probate Registry.

If there is no will
If there is no will (known as dying intestate) the process is more complicated. The Administration of Estates Act 1925 sets out who can act as administrator – that is, who has the legal right to deal with the affairs of the person who has died. The administrator will usually be a close relative of the person who has died, if there is one. There may be more than one person who has an equal right to do this.

Anyone who has this right can apply to the probate registry for a grant of letters of administration. This is an official document, issued by the court, which allows administrators to administer the estate. In some cases, for example, when the person who benefits is a child, the law says that more than one person must act as administrator.

We recommend that all executors perform a search of the National Wills Database (www.nationalwillregister.co.uk) to ensure they are using the last will.

Some more legal terms you may come across

  • Personal Representatives (PRs) – This means executors or administrators. If there is more than one personal representative they must work together to decide matters between them. Disagreements between personal representatives can cause delays. PRs are responsible for making sure that the estate is administered correctly. If there is a will, they must make sure that the wishes of the person who has died, as set out in their will, are followed. If there is no will, you must follow the rules of intestacy (set out in the Administration of Estates Act 1925 and amended by the Inheritance and Trustees’ Powers Act 2014), that Brown & Company can advise on as necessary.
  • Grants of Representation – This includes grants of probate (when there is a will) and grants of letters of administration (when there is no will). Often people just refer to “Probate” even if there is no will.


 

When a grant of representation is needed
A grant of representation is not always needed, for example if the person who died has left less than £5,000 in total or owned everything jointly with someone else.

In other cases, some financial organisations, such as banks, may agree to pay funds to a personal representative without a grant of representation – it is always worth asking.

Usually a grant of representation will be needed when the person who has died left more than £5,000, stocks or shares, a house or land or certain insurance policies.

Inheritance tax
Personal Representatives are also responsible for finding out if inheritance tax is due as a result of a person’s death. If it is, the personal representative has to make sure that it is paid to the Inland Revenue.

Whether inheritance tax needs to be paid can depend on:

  • How much the property and belongings
    of the dead person were worth when
    they died
  • The value of any gifts that they gave before the died, and who they gave these gifts to
  • The value of certain trusts from which the dead person benefited
  • Which people benefit under the will or under the rules of intestacy (the beneficiaries)

It is also possible to claim the unused portion of the deceased’s spouse with a further application to HMRC.

Likely timescales
Dealing with the affairs of someone who has died can take a long time. It is not unusual for it to take up to a year, perhaps longer if things are not straightforward. Many organisations may be involved in the process, for example banks, building societies, insurance companies and the Inland Revenue.

The estate cannot be dealt with until all claims on it have been received. Individuals have six months from the date when
probate was granted to make claims against the estate.

 

Other things that may affect the time
taken are:

  • Whether the financial affairs of the person who died were in order
  • What the person who died owned and where it is
  • Whether he person who died had an interest in a business or a farm
  • What the will or the rules of
    intestacy say
  • Whether there are any legal disputes (claims against the estate or claims by the estate)
  • Whether inheritance tax needs to
    be paid
  • Making sure that all Inland Revenue files are closed and that matters relating to income tax, benefits agencies and pensions have been sorted out.

Who can help with these matters?
At Brown & Company we will lend a sympathetic ear at a very difficult time whilst assisting to wind up the personal affairs of the person who has died as efficiently as possible. We will relieve you of many of the form filling burdens as is possible including applying for the grant of representation on your behalf.

Our charges for this service are based on time spent in carrying out the work and sometimes there may also be an additional charge based on the value of the estate, usually only in more complex cases. We are always happy to discuss our charges with you and give you an estimate of how much they are likely to be.

Please contact us with your requirements and we will discuss how we are able to
help you.