Probate is a vital legal requirement and will continue to remain an essential service during the coronavirus outbreak and subsequent lockdown restrictions.

HM Courts and Tribunals Service (HMCTS) has announced that remote working will mean that applications are taking longer to process and ways of working will need to adapt.

What do I need to do before probate can be granted?

• Secure a medical certificate

A medical certificate signed by a doctor is needed before the probate process can start. If the deceased died in hospital, the certificate will be taken care of by the hospital. Otherwise, the deceased’s doctor will need to be contacted.

In these troubling times, given restrictions and increased pressure on medical professionals, this may take a little longer than usual.

• Register the Death

All deaths should be registered within five days using the closest registry office in order to obtain a death certificate. You will need to take the medical certificate along with any identification documents belonging to the deceased that you have access to.

• Ascertain whether the deceased had a Will

Finding the Will, if there is one is a crucial part in the probate process. In addition to highlighting the express wishes of the deceased, it will also establish who has been appointed to the role of executor or personal representative tasked with administering the estate. It will be there job to ensure all liabilities and assets are calculated and distributed to creditors and the beneficiaries laid out in the Will.

If the deceased has failed to explain where a copy of the Will can be found, loved ones could try the National Wills Registry which will check to see if a Will had been made.

If the deceased died without a Will, the intestacy laws will establish who is best placed to administer the estate and will decide who the beneficiaries will be.

• Collate paperwork, passwords and digital records

Hunting down the paper trail a person leaves behind can be increasingly difficult. Gathering all essential records and documents will help to create a more accurate probate process. All documents that will help to notify organisations like the DVLA, post office, banks, creditors etc. of the death should be found during this stage.

By this stage, the executor will have the information necessary to apply for a Grant of Probate. Obviously, the process to this point is difficult, time consuming and often overwhelming. Our specialist team can be on hand to offer bespoke, accurate advice to minimise delays and ensure the estate is administered smoothly. 

Cornerstone Wills are here to help with your probate needs. Speak to our experts today, call us on 01276 415835/6/7

When a person dies, probate is the process of administering their estate by organising their assets, money and possessions and then distributing them as per the terms of a will or in line with the rules of intestacy.

To be able to start probate, an executor (the person who takes legal responsibility for carrying out the instructions of a will) must apply for a Grant of Probate.  A Grant will give an executor the legal authority to deal with the deceased’s property until all taxes are paid and inheritance has been passed on.

If a person died intestate (where there is no will), a Grant of Probate cannot be applied for, but instead, the estate will be administered through Letters of Administration.  

A person who has been named as an executor can chose to ‘renounce’ the right to accept the role. 

Not every estate will require probate.  If there is no property and only a small amount of money, with a total value usually less than £5,000, probate is not normally needed.  Each bank or financial institution will have different value limits on when they would require a grant of probate. 

Probate will also not be required for property that is owned jointly as joint tenants, as this passes through the right of survivorship, meaning the surviving owner automatically has the property pass to them.

Probate will be required however where there is the property that is owned jointly as ‘tenants in common’ and there are other large assets in the estate above the limit.

If you do not apply for probate, then the deceased’s estate cannot be dealt with.  The estate cannot be assessed or distributed, leaving assets and accounts frozen and in a state of limbo.  

 If you do not apply for probate, as either an executor or administrator then generally the deceased’s estate cannot be accessed or transferred.  As explained, probate may not be needed for smaller estates or for property owned as joint tenants, but it is always best to seek professional advice before distributing any estate.

Cornerstone Wills are here to help you with obtaining a Grant of Probate or letters of Administration. Speak to our experts today, call us on 01276 415835/6/7

For most people, their estate will need to be wound up by either an executor or, if they have not left a Will, an administrator. Part of this person’s job is to value the estate and account to HM Revenue and Customs for any Inheritance Tax (IHT) that may be due, then prepare estate accounts. The first job is to list all the assets held, which would usually include the following:

Bank accounts, insurance policies and shares

You will need to go through the deceased’s papers to find details of where they held assets. This could be bank accounts, shares, investment bonds, insurance policies and pensions. Financial advisers or solicitors who dealt with the deceased may also have information on their holdings.

You should then write to each asset holder to notify them of the death and ask them to confirm that the deceased had a holding with them and what its value was. Before they release the funds to the estate, they may ask to see the Grant of Probate or Letters of Administration which the executor or administrator will apply for if the estate is over a specified value.

Property

A chartered surveyor will be able to provide a probate valuation of any property the deceased owned and it is also necessary to value the contents. Any likely items of value should be listed and can be valued by an expert, in the case of art or jewellery for example, or by checking similar prices for secondhand pieces of furniture or white goods.

Gifts

Substantial gifts made by the deceased during the seven years prior to their death need to be taken into account. IHT is payable on gifts made during this time on a sliding scale based on when the gift was made.

Calculating the IHT payable

The executor or administrator will also need to take into account the value of any debts payable by the deceased’s estate. This might include a mortgage, tax, credit card payments, loans, care home fees and utility bills.

The calculations need to be sent to HM Revenue and Customs together with the payment, which should be made by the end of the sixth month after the person has died. The executor or administrator can be held personally liable for mistakes made in drawing up accounts, so it is important to ensure both the figures and the valuations are correct.

It is possible to appoint a professional executor, such as a specialist probate solicitor, to carry out this work if you do not feel you have anyone who is willing or able to take on the role.

If you would like help administering an estate or would like to appoint a professional executor, ring us on 01276 415835/6/7.

One of the main reasons for naming more than one executor is in case someone is unable or unwilling to act when the time arises. If a single executor is named in a Will, there is a risk that they may die first, or over time may lose mental capacity. In that event, it would leave the estate without a named executor.

Acting as a sole executor

If an estate does have only one executor, the administration will usually be possible in the ordinary way.

If the winding-up is simple, for example with everything left to the remaining spouse, then a single executor will be able to deal with matters fairly easily.

The benefits of a second executor

With a more complicated estate however, it can be beneficial to have more than one executor. The job of administration can be long and complex, involving the collecting in and valuation of assets, arranging for clearance and sale of any property, calculation and payment of Inheritance Tax, preparation of detailed estate accounts and distribution of the estate to beneficiaries.

It can be helpful for executors to share the burden, particularly if the winding-up takes many months and involves a large amount of correspondence. It can also be good to involve more than one family member to help avoid disagreements and distrust arising at what will be a difficult time.

If the Will creates a trust, then a sole executor is advised to take legal advice in respect of the appointment of trustees. It is always recommended that a second executor be appointed in the case of a more complicated estate.

A joint executor acting alone

If the Will appoints executors to act together, then they are known as joint executors. It will not then be possible for a joint executor to act alone in the estate administration unless the other executor(s) give their agreement.

If the other executor(s) are happy for one person to act solely, then they can either be served with a Notice of Power Reserved, meaning they can take up the position later on, should they choose to, or they can renounce their powers completely. It is advisable for executors to take legal advice before stepping aside.

Choosing your executors

When having your Will drawn up, you should ideally select two executors who you believe will be able to do a good job in estate administration. If you are unable to find suitable candidates, it is possible to appoint a professional executor to act.

If you would like to talk to one of our Wills experts, ring us on 01276 415835/6/7.

When you make a Will you need to consider who you would like to administer your estate and be responsible for any money that is to be held in trust. These can be onerous roles and you should be aware what they involve so that you can discuss them with the people you would like to act on your behalf.

The role of Executor

An Executor is responsible for the administration of an estate in accordance with the terms of the Will. Duties are likely to include making funeral arrangements, valuing assets, collecting them in, arranging for their sale, calculating tax payable, drawing up estate accounts and distributing the estate to the named beneficiaries.

The job can be extremely time consuming, particularly if the deceased held a variety of assets with various stakeholders. Each will need to be notified and will have their own requirements for releasing funds. If there is a property, it will need to be insured, valued, cleared and a sale arranged.

Debts will need to be paid, including Inheritance Tax, which the Executor will be responsible for calculating, based on the value of the estate.

Because the job of Executor can be difficult and they will be personally liable for any errors they may make, you should discuss it first with anyone you might wish to appoint. If you do not have anyone who is willing and able to act, you can choose to appoint a professional executor. This is someone such as a probate solicitor who is experienced in the winding-up of estates and who will be able to prepare the necessary tax returns and estate accounts.

The role of Trustee

If your Will creates a trust, then you also need to appoint Trustees to administer it. You may want to leave money to children under the age of 18 or leave a life interest in a property or a sum of money to a spouse or partner.

A Trustee’s role can include dealing with the investment of money as well as taking decisions as to where it should be spent. For example, a child’s guardian may ask for a contribution towards maintenance or education and the Trustee will need to consider whether the request is reasonable and in accordance with the intentions of the deceased.

As well as looking after the assets included in the trust, a Trustee will also need to keep clear records and prepare accurate trust accounts.

The role of both Executor and Trustee can be demanding, with consequences for inadequate performance, so it is essential that your chosen appointees understand the job they are taking on and believe they are capable of carrying it out.

If you would like to talk to one of our expert probate lawyers, ring us on 01276 415835/6/7.

Whether business assets are sold or transferred depends on the way in which the business was owned and operated as well as the wishes of the deceased.

The estate’s executor or administrator will need to obtain a Grant of Probate or Letters of Administration enabling them to deal with the business.

Sole trading and probate

If the deceased was a sole trader, then their finances and assets are simply treated as part of the estate.

Business partnerships and probate

Where the deceased was in a partnership, there would normally be a partnership agreement giving details of each partner’s contributions and liabilities. It should also set out what is to happen in the event of the death of a partner.

The deceased’s estate will be liable for any debts or a share of partnership profits. Separating the estate from the partnership may well be complex and an executor or administrator should take independent legal advice on behalf of the estate.

Companies and probate

Where the deceased owned shares in a company, the company’s Articles of Association will govern how shares can be sold and/or transferred, for example if first refusal must be given to company directors.

The executor or administrator will need to contact the company secretary and arrange for valuation of the deceased’s shareholding.

Complications

It may be that the business will need to be sold or shut down. If there are redundancies, there may be liability to make payments.

If it is advantageous to keep the business running while a buyer is sought, then someone needs to be appointed to do that. If there are other owners or partners, then liaising with them will be essential.

As well as dealing with probate, the executor or administrator may also find themselves having to deal with questions of employment law, company law, property law and insolvency.

For this reason, it is highly recommended that when the deceased owned a business, professional legal help is sought.

If errors are made during the administration of an estate, executors or administrators may be held personally liable.

If you would like expert help in dealing with a probate matter, ring us on 01276 415835/6/7.

There are many decisions to be made at a time when people may be feeling overwhelmed and fraught. It is not uncommon for executors to fall out during this time, which is the last thing the deceased would have wanted.

People may feel that the other executor(s) are not acting in the most beneficial way, or that they are taking over or not sharing information.

Some of the administration tasks and problems that can arise

One of the main jobs after someone’s death is often to clear their property, dispose of their personal effects and put the house up for sale. Selling a home frequently causes friction, even in ordinary circumstances, and when it closely follows a death then emotions can run high.

There are also choices to be made over payments of expenses, who should be allowed to buy assets such as property or valuables, agreeing on valuations and closing or moving bank accounts. One executor may want to hold on to any property until the market improves, while another may want to sell straight away.

The process itself always takes a long time, which can be a source of frustration.

Maintaining a good relationship between executors

One of the key ways to maintain a good relationship between executors is to communicate as much as possible. If something has caused a delay, make sure everyone knows why and that it is unavoidable. If different valuations have been received, make sure the situation is talked through and try and take everyone’s point of view into account.

Stepping aside as an executor

If an executor does not want to act, it is possible to stand down before administration begins. They can either renounce the role permanently or ask for their power to be reserved, which could allow them to apply to court to become an executor at a later date.

If the relationship between executors breaks down completely, it is possible for one of them to apply to the court to have another removed, which the court might do if it believes this is in the best interests of the estate. There is then the option for a new appointment to be made.

Avoiding conflict in estate administration

It is possible to request a professional executor when drawing up your Will. This means that an expert probate lawyer will act as your executor. The advantage of this is that they are experienced in dealing with probate and will also act impartially. It can minimise delay and reassure everyone involved that the estate’s best interests are being observed.

To talk to one of our probate specialists ring us on 01276 415835/6/7. 

When someone dies, the person named as executor in their Will is responsible for collecting in, valuing and distributing their assets.

Whether or not that person needs to apply for probate depends on the value of the estate and how any assets were held.

Small estates

If an estate only has a modest amount of money, it may be classed as a small estate and probate might not be necessary.

There is no exact definition of a small estate, although as a rough guide estates worth less than £5,000 may qualify.

Each bank has its own different threshold under which it will close an account and release funds without requiring a Grant of Probate, ranging from around £5,000 to £50,000.

The same applies to share registrars, life assurance companies and pensions administrators. Where the estate is fairly small, then it is worth enquiring of the asset holders what documentation they will need.

Property

Where the deceased owned a property in their sole name then probate will be needed to deal with the sale or transfer.

Similarly, if the property was owned as tenants in common with others, probate is required.

However, if a property was held by the deceased as a joint tenant, then it will automatically pass to the other owner(s).

Jointly held assets

Similarly, joint bank accounts and other jointly held assets will pass automatically on death to the survivor(s).

It is therefore always worth checking whether probate is necessary. If most of the deceased’s property passes automatically, then it may be possible to avoid the time and expense involved in applying for a Grant of Probate.

What documents will asset holders need?

If probate is not needed, asset holders will need to see a copy of the death certificate and may require the executor to complete a form called a ‘Small Estates Declaration’.

They may also ask to see a copy of the Will and identification, such as birth or marriage certificates.

To speak to one of our probate experts, ring us on 01276 415835/6/7.

It is usual for the executor of an estate to apply to the Probate Registry for an official Grant of Probate, the document allowing them to collect in and sell or transfer someone’s assets after their death. However, if a deceased person leaves a small estate or the majority of their assets are jointly owned, it may be possible to transfer their assets without probate.

Property

When selling or transferring property such as a house or land, probate will be required unless the property is owned jointly with someone else. If the property is held with someone else as ‘tenants in common’, the deceased’s share will pass in accordance with their Will or under the Rules of Intestacy.

Bank accounts

Banks may close accounts on production of a death certificate and without requiring a Grant of Probate if the sums involved are below a certain level. This varies depending on the individual bank but can be anything from £5,000 to £25,000 or even higher, so enquiries need to be made.

Shares

Share registrars will ask to see a Grant of Probate before selling or transferring shares, but in the case of a small estate it may be worth asking if they will do it on sight of a death certificate as some providers may have the discretion to act without a Grant in this context.

A share in another estate

If the deceased passed away before they received their inheritance from another Estate to which they were a beneficiary, then the executor of the deceased beneficiary’s estate needs to make sure that they recoup the inheritance.

In these circumstances, executors dealing in the first estate have the right to request sight of Probate on the second Estate before they will release funds to the deceased Beneficiary’s Executors.

Intestacy

If the deceased died without a Will then there may be a number of parties who could potentially administer the estate. In that event, it is advisable for a person who is entitled to inherit and wishes to wind up the deceased’s affairs to obtain Letters of Administration (issued instead of a Grant of Probate when there is no Will) from the Probate Registry to avoid any future disagreement or conflict.

Because of the low threshold for administering an estate without probate, a grant is usually required, and will certainly make it easier to deal with financial institutions after someone’s death.

If you need help applying for a Grant of Probate or Letters of Administration, speak to one our expert probate team on (01276) 415835.

If a relative dies and you have not inherited what you feel you have a right to, you may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the Act).

It may be that you believe you were left less than you are entitled to, that you have been left nothing or that because there is no Will you have not been made a beneficiary.

If you can show that you are entitled to ‘reasonable financial provision’ then you can ask the court to grant you a share of the estate.

How long do you have to make a claim?

The Act has a strict time limit for making a claim of six months from the date of the Grant of Probate or Letters of Administration.

In very exceptional circumstances this may be extended to allow a late claim, but as a rule you must stick to the six month deadline.

Who is entitled to claim?

A spouse or civil partner may make a claim under the Act as well as a former spouse or civil partner where they have not remarried, a person living in the same household as the deceased for at least two years prior to the date of death, a child of the deceased, anyone who was treated as a child of the family such as stepchildren and anyone who was being financially maintained by the deceased.

What will the court consider?

The court will look at the applicant’s financial resources and needs as well as their future needs. This could include whether they are employed, able to work, whether they have a dependent family or are a carer.

The physical and mental capacity of the applicant will be considered at along with the obligations the deceased may have had to them.

The financial resources and needs of the beneficiaries under the Will is also taken into account together with the size of the estate.

Other factors such as the applicant’s behaviour towards the deceased will also carry weight.

The court will not simply ignore the wishes of the deceased, so it is important to put together as persuasive a case as possible.

It is also essential not to miss the six-month deadline for making the claim.

If you would like to speak to our expert probate team, contact us or ring us on (01276) 415835.