GN Law - Guides to the Law

Guide to Probate

What is Probate Law?

Probate is the legal process of dealing with the assets, money, and possessions of someone who has died. Probate allows for their will to be executed so that their estate passes to the family member or loved ones as set out in their will. If the deceased left no will, probate will follow the Intestacy Rules in order to ensure that the administration of the estate distributes the deceased’s property to the correct beneficiaries as set out in the rules.

What happens when someone dies?

The death of a loved one is always a difficult time with many things that need to be sorted out. The first step in most cases will be to arrange the funeral. Then, depending on whether the deceased left a will or not, the process of sorting out their property and finances may seem a daunting task.

We have created this guide to break down the practical steps that will need to be taken following the death of a loved one.

Step 1 – Register the death

A death must be registered within 5 days of death. You must register the death with the Registrar of Births, Marriages and Deaths for the particular district in which the person died.

You can search online for your nearest register office.

Step 2 – The funeral

Unless the death has been referred to a coroner (which may delay burial) the next stage is to arrange the funeral.

You may be concerned as to how to pay for the funeral. When a person dies their bank accounts are frozen. Some banks will release funds to pay for the funeral if presented with an original death certificate and funeral invoice. Some funeral undertakers will also have flexible payment arrangements for families who struggle to release money from the deceased’s estate for the funeral. You may be able to get a grant to help towards the costs from the Social Fund.

The deceased may also have paid into a funeral plan or life insurance policy, or a pension scheme that provides a lump sum towards funeral costs.

The deceased may have also left instructions in their will or a letter about their funeral wishes.

Step 3 – Apply for Probate

Probate is a term used to describe the administration of someone’s estate after they die. The process involves collecting in their money and property and then paying off that person’s debts and then distributing the remaining money in accordance with that person’s will (or under the ‘Intestacy rules’ if they die without a will).

For estates with a value (money/property) under £5,000 you may not need to obtain a Grant of Probate (or a Grant of Letters of Administration if there is no will) to administer the estate.

There are certain differences between the way Probate needs to be carried out when a person leaves a will and when there is no will.

To have the legal authority to carry out the steps below, executors named in a deceased’s person’s will, may need to apply for a “Grant of Representation” (“the Grant”). This is a legal document which confirms that the executors of a will have the legal authority to deal with the deceased’s estate. When someone dies with a will this document is known as a ‘Grant of Probate’. The Grant can be given to up to four executors.

When there is no will this is known as a “Grant of Letters of Administration”

Personal Representatives (“PR’s”) are the people who are responsible for dealing with the deceased’s estate. This term can be used to refer to either an ‘administrator’ or an ‘executor’.

For example, if the deceased left a valid will, then the PR’s will be the “executors” of the estate as named in the will.

If the deceased did not leave a will (i.e. died ‘intestate’), then the PR’s will be the ‘administrators’ of the estate.

Where there is no will, and therefore no one is named or identified to take on this role, there is an order of priority that governs who can apply –

see below ‘What happens when there is no will?’

In both cases the personal representatives are responsible for:

  • Ensuring that the deceased’s estate has paid any outstanding tax due
  • Obtaining a Grant of Probate (or a Grant of Letters of Administration if there is no will)
  • Collect in the deceased’s assets and money (including property)
  • Pay any outstanding debts owed to creditors of the estate
  • Distribute the estate to the people who are entitled to it under the terms of the will or in accordance with the intestacy rules (the beneficiaries).

How to apply for the Grant

The executors and administrators should apply to their local Probate Registry for the relevant Grant, and they can obtain the application forms from that Probate Registry itself or request them from the Probate and Inheritance Tax Helpline (0300 123 1072 – open Monday–Friday 9am–5pm).

There is a guide that provides more details in how to apply for Probate without a solicitor.

The forms are detailed and require a lot of information about the person who has died including details of the will (if there is one), the value of the estate and the inheritance tax payable.

Personal representatives may also have to attend a 15 minute interview at the relevant Probate Registry before the Grant can be issued in some cases. A fee of £215 (if the application is made through a solicitor the fee is reduced to £155) will need to be paid if the estate is over £5,000 and should you require sealed copies these are charged at 50p each.

PR’s can claim reasonable expenses for this work and if they are professionals such as solicitors they are entitled to charge professional fees.

What legal powers do the personal representatives have?

Executors and administrators have a range of statutory powers which include;

  • The power of sale: PR’s have the power to sell or exchange any property and grant or accept the surrender of leases.
  • The power to delegate: PR’s may employ and pay an agent (for example a solicitor) to act for them in connection with any transaction required for administrating the estate.
  • The power of maintenance: PR’s may spend income from a trust for the benefit of infant beneficiaries.
  • The power of advancement: PR’s may advance a capital amount from a trust fund to a beneficiary who is entitled to receive it – for example because they have attained a certain age.
  • Raising funds to pay Inheritance Tax: The PR’s must pay any outstanding inheritance tax before other debts and will need to pay any tax payable immediately before they can obtain a Grant. If there are insufficient funds in the estate, then they have the authority to obtain a loan for example to pay this liability.

When do I have to pay Inheritance Tax?

Inheritance tax is payable on estates whose value exceed the “Nil Rate Band” (“NRB”) threshold. The NRB remains at £325,000.

Anything you leave to your wife, husband or civil partner is not subject to inheritance tax.

From 9 October 2007 new rules were introduced which allowed a surviving spouse or civil partner to inherit any unused proportion of their deceased’s spouse’s NRB on death. This means that the surviving spouse’s estate could have an allowance of up to £650,000 on their estate before incurring any inheritance tax liability.

As stated above, inheritance tax must be paid before the PR’s are able to apply for a Grant. A form IHT205 will need to be filled in if there is no inheritance tax payable and an IHT400 form if there is tax payable.

If IHT is payable on the estate, it must be paid within six months following the end of the month in which the person died.

The relevant inheritance tax (IHT) forms are available on the HMRC website.

As of 6 April 2017, an additional Residence Nil Rate Band (RNRB) has been introduced and is intended to provide an additional allowance on top of the existing NRB which is due to incrementally increase in the following way;

  • £100,000 from 2017 to 2018
  • £125,000 in 2018 to 2019
  • £150,000 in 2019 to 2020
  • £175,000 in 2020 to 2021

To benefit from the RNRB, the deceased’s main residence needs to be passed to their lineal descendants as part of their estate. This is the basic criteria for eligibility but you should seek advice from a solicitor as to whether it applies to the particular estate you are dealing with.

What happens when there is no will?

All reasonable steps must be taken to find a will before simply accepting that one does not exist. Steps must be taken to try to ensure that the views and wishes of the deceased are ascertained before that person’s estate is distributed.

However, sometimes there is no will and this situation is known as “intestacy.” The estate will need to be distributed in accordance with the intestacy rules.

Even when there is no will, registering the death and arranging the funeral are still required. Somebody who knows the deceased (i.e. a relative or close friend) should take the responsibility of registering the death and ensuring that the funeral is arranged.

The Grant of Representation may also need to be obtained. As stated above, when there is no will the Grant is referred to as a “Grant of Letters of Administration.”

The absence of a will means that there could be uncertainty from the outset as to who is able to apply for the Grant and ultimately deal with the estate of the deceased.

There is also the added task of establishing who is entitled to inherit under the intestacy rules. It may be prudent to seek a solicitor’s advice on these issues.

Who can become an admistrator if there is no will?

When there is no will the personal representatives are known as the “administrators” of the estate.

There is a statutory order of priority for the deceased’s relatives who are entitled to become administrators and therefore apply for a grant of letters of administration. They are;

  • husband, wife or civil partner
  • sons or daughters
  • parents
  • brothers or sisters
  • more distant relatives

In an intestacy the persons entitled to become administrators will need to apply to any Probate Registry to obtain the Grant in the same way that an executor under a will would do.

The procedure undertaken to pay off any tax, other debts and ultimately distributing the estate is the same as if there had been a will.

Who inherits if there is no will?

If someone dies without having left a will they are said to have died ‘intestate.’ The rules are designed broadly to benefit the deceased’s immediate family.

Can the will ever fail and create an intestacy?

Yes. The will can fail wholly or partly. If it partly fails this is known as a “partial intestacy.”

Some of the common reasons for failure include;

  • If the will is not valid (see our will guide to find out that are the requirements for a valid will)
  • If there is a sole beneficiary who cannot inherit under the will and there is no substitute beneficiary in their place.
  • If an executor cannot act and there is no substitute executor in the will

Whether the will fails wholly or in part, then the part that fails may be subject to the intestacy rules.

In this situation, the executors named in the will (unless this is the part of the will that fails in which case they will be the class of people entitled to apply to be administrators in an intestacy) may apply for what is known as a “Grant of Letters of Administration with Will Annexed.”

The process of applying for this Grant is the same as that stated above.

All the necessary procedures prior to obtaining this Grant will need to be taken as those stated above when there is a will or intestacy.

It is prudent in these circumstances to seek the advice of a solicitor so that advice can be obtained as to exactly what parts of the will are valid and what parts need to be dealt with under the intestacy rules.

Contact a Probate Solicitor

This guide is meant to be a helpful overview of Probate matters only. It is should not be used as a substitute to seeking legal advice on your specific circumstances. If, having read this guide, you feel you require assistance with a probate matter you should seek specialist probate advice. It can be daunting trying to understand when probate is required or dealing with the various stages of the probate process.

If you would like advice on any of the issues discussed in this probate guide, please do not hesitate to contact a member of our Probate Team or get in touch on 020 8492 2290.

© Guile Nicholas Solicitors

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