Wills/probate process
These notes are intended to give you a very general idea of what is involved in administering an estate and obtaining a grant of probate.
Initial action to be taken by the client
You will be required to do the following:
Register the death
You will need to register the death with the Registrar of Deaths in the area in which the death took place as soon as possible, as funeral arrangements cannot be finalised until this is done.
You need to buy a death certificate from the Registrar.
You are entitled to be reimbursed from the estate for this expense at a later date.
Identify the Personal Representatives
In this Guide, ‘Personal Representative’ is used to refer to both an executor and an administrator unless the distinction is important for clarification.
If there is a Will, the executors named in the will or any subsequent codicils are entitled to administer the estate, and we will act on their instructions.
If the named executors do not wish to act or are not able to act (for example, if they lack capacity, or do not live in the UK, we will
advise you on what further action needs to be taken.
If there is no Will, we will advise on:
1) the persons (called ‘administrators’) who are entitled to administer the estate; and
2) who will be entitled to inherit the deceased’s estate.
Locate the Will and any codicils
You will need to investigate whether there is a Will and any codicils and discover their whereabouts.
You may know this from information supplied by the deceased before their death, or from information discovered among the deceased’s paperwork after their death.
If there is a will, you will need to locate the original.
Make the funeral arrangements
This is the responsibility of the Personal Representatives.
You will need to check the will for any funeral directions given by the deceased.
Collect and supply to us the deceased’s papers
This information will enable us to write to all the individuals and organisations concerned in order to assess the extent of the assets and liabilities within the estate.
Please refer to the Glossary for guidance as to the type of paperwork we require.
However, if in doubt, contact us.
Actions to be taken by the solicitors
Once the initial actions have been taken, we will do the following:
Assess the extent of the assets and liabilities
Once we have all the deceased’s papers from you, we will write to the appropriate organisations e.g. bank, building societies, DSS advising them of the death, and asking them to confirm the extent and value of the assets and liabilities.
We will also obtain valuations of assets such as a house or shares where necessary.
Please note that until the asset holders receive the grant of probate, all assets will be frozen, with the exception of joint accounts, which can be immediately transferred to the surviving coowner on production of a certified copy of the death certificate.
Write to the Beneficiaries
We will write to all the beneficiaries to advise them of their to advise of their entitlement and the estimated time scale.
Bankruptcy searches against beneficiaries
If a beneficiary has been declared bankrupt, the beneficiary’s Trustee in Bankruptcy can require the Personal Representatives to pay any gifts that the beneficiary was entitled to direct to the Trustee in Bankruptcy.
If you have any doubts as to the financial status of any particular beneficiary, please let us know, and we will carry out the necessary searches before payment is made.
We will not make any bankruptcy searches unless you specifically instruct us to do so.
Notices to unknown creditors and beneficiaries
Personal Representatives have a duty to pay the creditors of the deceased and to distribute the estate to the correct beneficiaries.
If they fail to do so, they risk becoming personally liable to those creditors or beneficiaries who they fail to make payment to.
In order to avoid this risk, notice can be given to potential creditors and beneficiaries by placing an advertisement in both a national newspaper and in a newspaper local to the deceased.
Two months must then elapse from the date of the notice before the estate can be distributed in order to benefit from the protection.
Generally, Executors can advertise immediately after the death, but Administrators should only do so after obtaining Letters of Administration.
We can make the necessary arrangements on your behalf.
Please let us know if you would like us to do this for you.
House insurance
We will arrange for the house insurance to be placed in the names of the Executors.
However, please note that if the property is unoccupied for a certain period of time, commonly 30 days, the policy will not cover any damage caused by water bursts.
If this is the case, you will need to drain the water system down and turn off any central hearing system.
Inheritance Tax
We will:
1) Consider whether Inheritance Tax is payable.
2) Advise you on how to finance any Inheritance Tax liability.
3) Prepare the necessary Inheritance Tax forms which are required regardless of whether Inheritance Tax is payable.
4) File the Inheritance Tax return where necessary.
5) Deal with payment of any Inheritance Tax.
6) Obtain a final clearance certificate from the Inland Revenue.
Please be aware that an estate liable to Inheritance Tax will normally take several months longer to finalise due to the following possible factors:
– Agreeing Income Tax and/or Capital Gains Tax liability at the date of death. (The Inheritance Tax liability, which is dealt with by a different department within the Inland Revenue cannot in turn be agreed until this has been done).
– Negotiating asset values with the Inland Revenue if it is not possible to determine their value at the date of death.
– The need to obtain a final clearance from the Inland Revenue.
Apply for Probate
Once we have assessed the value of the estate, we will prepare the probate application, which includes an oath which the Personal Representatives will need to take to a solicitor to sign and swear on oath that the contents are correct.
Once we receive the signed and sworn Oath, we then apply to the Probate Registry for the grant of probate (in the case of a Will) or Letters of
Administration (if no Will).
Grant is used in this Guide to cover all cases, unless the distinction is important.
It usually takes about 2 weeks for the Probate Registry to issue the Grant.
Once the Grant has been issued
We will:
1) Apply for the release/sale of the assets as appropriate
2) Pay the liabilities owed by the deceased, including any Inheritance Tax which may be payable, and distribute the estate in accordance with the will/rules of intestacy.
Finalise the administration of the Estate
We will prepare Estate accounts and send copies to the Personal Representatives and beneficiaries for approval.
We will then distribute the estate to the Beneficiaries.
Glossary of terms
Here are some legal terms that you may find useful:
Accountants
The name and address of the deceased’s accountant.
Administration period
The period between the date of death and the date of the final estate accounts.
Administrator
A person responsible for winding up the estate of a person who has died leaving no will or the executors of whose will are unable or unwilling to act.
Annuities
Details of any annuities received by the deceased, such as recent statements, vouchers and correspondence from the pension supplier.
Any other assets
Details of any other assets held by the deceased, including jointly owned assets.
Any other liabilities
Details of any other liabilities owed by the deceased.
Appropriation
The transfer of an asset instead of its sale proceeds on account of a legacy or share of residue.
Assent
The legal document which transfers a property to the beneficiary.
Bank and building society accounts
Passbooks or statements for any bank, building society, including the National Savings Bank.
Beneficiaries
A beneficiary is a person or entity that receives benefits from a will, trust, insurance policy, or other contractual arrangement.
Beneficiaries can receive assets, rights, or proceeds, and are responsible for ensuring that the wishes of the policyholder or grantor are honoured.
You must supply the up-to-date addresses of all beneficiaries.
You must also confirm if any beneficiaries named in the will died before the deceased.
Business
Details of any business which the deceased had an interest in, whether as sole proprietor, partner or director/shareholder.
Catalogues
Recent statements for all catalogues.
Codicil
A legal document by which a person amends his will.
Credit cards
Recent statements for all credit cards.
Contingent gift
A gift conditional on the happening of a particular event e.g. a beneficiary reaching 21.
Death certificate
All copies of the original watermarked death certificate.
Estate accounts
Accounts recording the financial transactions during the administration period.
Executor
A person appointed by a will or codicil to wind up the estate.
Funeral
The funeral account.
Grant of Probate/Representation and Letters of Administration
The court order authorising a person to deal with the assets of the deceased.
A grant of probate applies where a valid executor appointment was made under a will, and Letters of Administration are where there was no will or no valid executor appointment under the will.
Inheritance Tax
If the net value of the deceased’s estate exceeds (currently) £325,000, Inheritance Tax may be payable.
Inland Revenue
Any correspondence with the Inland Revenue or other tax papers.
Intestacy
Where a person dies without making a will fully disposing of all their assets.
The administration of ‘intestate’ estates is largely governed by the Administration of Estates Act 1925.
Investments
Certificates for stocks and shares, unit trusts, National Savings certificates, premium bonds or any other investments.
Legacy /bequest/devise
A gift of chattels/money/other assets by will.
Life Insurance
Lifetime gifts
Details of any gifts exceeding £X per annum in any one year in the last 14 years
i.e. the nature of the gift, the name of the beneficiary, the date the gift was made.
Personal chattels
The deceased’s personal belongings which have been defined in the Administration of Estates Act 1925, Section 55 (1)(x) to include:
- Carriages
- Horses
- Stable furniture and effects (not used for business purposes)
- Garden effects
- Domestic animals
- Silver plate
- Plated articles
- Linen
- China
- Glass
- Books
- Pictures
- Prints
- Furniture
- Jewellery
- Articles of household or personal use or ornaments
- Musical and scientific instruments and apparatus
- Wines, liquors and consumable stores
It excludes any chattels used at the death for business purposes, or any money and securities for money.
Personal representative
Generic term for an executor or administrator.
A personal representative is responsible for administering the estate of the deceased and is called an executor where appointed under a will, or an Administrator where appointed in the absence of a will.
Private/occupational pensions
Details of any private and/or occupational pensions received by the deceased, such as policy documents, and recent statements and correspondence from the pension supplier.
Power reserved
Where an executor appointed under a will declines to act as such, but reserves the right to do so at a later date.
Renouncing probate
Where an executor appointed under a will declines to act at all without reserving the right to do so at a later date.
Residuary beneficiary
A person entitled to share in the residuary estate.
Residuary estate
What remains of the estate after payment of all debts, legacies and all taxes and expenses.
State Pension and benefits
Details of any state pension or other state benefits received by the deceased, such as payment books and correspondence from the DHSS.
The House
Title Deeds.
Trusts
Details of any trust in which the deceased had an interest at the date of death or during the preceding 14 years.
Will and any codicils
The originals of all wills and codicils made by the deceased, or alternatively the name and address of who currently holds them.