Probate

What should I do when someone I love dies?

Dealing with the practicalities of a loved one’s death can be confusing at what is a distressing time. You will need to:

Register the death

Organise the funeral

If your loved one lived alone, you should make sure that their property is secure and that their belongings are kept somewhere safe.

You should tell the insurers of your loved one’s property, home contents and car to make sure insurance remains in place.

You will also need to notify organisations such as pension providers and make sure all bank accounts are closed.

You may need to obtain a Grant of Representation – this will be a Grant of Probate if there is a will and a Grant of Letters of Administration if there isn’t a will.

What should I do if the deceased left a will?

If the deceased left a will then they would have appointed one or more ‘Executor’ to deal with their affairs after their death. The death will need to be registered with the Registrar of Births Marriages and Deaths and Executors may need to apply for a Grant of Probate from the Probate Registry. This is a legal document which confirms the Executor’s authority to deal with the deceased’s assets, this includes the right to access funds, collect assets, settle debts and distribute the estate to the beneficiaries of the will.

A Grant of Probate is likely to be needed if:

  • The deceased’s estate is worth more than £5,000
  • They owned a property jointly, but with each person owning an individual share of it (this is known as being a ‘tenant in common’)
  • The deceased held investments such as stocks and shares or a life assurance policy which pays into their estate.

A Grant of Probate may not be needed if:

The deceased’s estate is worth less than £5,000

  • They owned their entire estate jointly with another person, usually with their spouse or civil partner. For example, joint savings accounts and property which is owned jointly as a whole (this is known as being ‘joint tenants’) rather than each owning an individual share. In this situation, the assets will automatically pass to the surviving spouse/civil partner.
  • When applying for Grant of Probate, the forms which need to be completed depend on where the deceased lived and whether or not Inheritance Tax needs to be paid. Executors can obtain a Grant by accessing the relevant forms online, and making an application to the Probate Registry. However, this can be a complex process and the Executor may therefore wish to instruct a solicitor to make the application.

The time it takes to deal with the deceased’s estate will depend on a number of things such as how quickly you can obtain the information about the deceased’s assets and liabilities, whether inheritance tax is payable and the efficiency of the organisations you are dealing with. In most cases, banks and other organisations will want to see the Grant before releasing assets. However, if the estate is small then some organisations may release money to executors or the deceased’s spouse at their discretion.

The Grant is usually issued within two to three weeks after the application is made to the Probate Registry. The Executor can then start the process of gathering in the estate assets, setting any debts and dealing with any final tax returns if needed before distributing the remainder of the estate to the beneficiaries.

What should I do if the deceased didn’t leave a will?

If the deceased didn’t leave a will, administrators will need to be appointed to deal with the deceased’s affairs. These will usually be the people who are entitled to inherit the deceased’s estate. The death will need to be registered with the Registrar of Births Marriages and Deaths and the Administrators may need to apply for a Grant of Letters of Administration from the Probate Registry. This is a legal document which confirms the Administrator’s authority to deal with the deceased’s assets, this includes the right to access funds, collect assets, settle debts and distribute the estate to the beneficiaries.

A Grant of Letters of Administration is likely to be needed if:

  • The deceased’s estate is worth more than £5,000,
  • They owned a property jointly but with each owning an individual share of it (this is known as being a ‘tenant in common’) or
  • The deceased held investments such as stocks and shares or a life assurance policy which pays into their estate.

A Grant of Letters of Administration may not be needed if:

  • The deceased’s estate is worth less than £5,000
  • They owned their entire estate jointly with another person, usually with their spouse or civil partner. For example, joint savings accounts and property which is owned jointly as a whole (this is known as being ‘joint tenants’) rather than each owning an individual share. In this situation, the assets will automatically pass to the surviving spouse/civil partner.

When applying for Grant of Letters of Administration, the forms which need to be completed depend on where the deceased lived and whether or not Inheritance Tax needs to be paid. Administrators can obtain a Grant by accessing the relevant forms online and making an application to the Probate Registry. However, this can be a complex process and the Administrators may therefore wish to instruct a solicitor to make the application.

The time it takes to deal with the deceased’s estate will depend on a number of things such as how quickly you can obtain the information about the deceased’s assets and liabilities, whether inheritance tax is payable and the efficiency of the organisations you are dealing with. In most cases, banks and other organisations will want to see the Grant before releasing assets. However, if the estate is small then some organisations may release money to Administrators or the deceased’s spouse at their discretion.

The Grant is usually issued within two to three weeks after the application is made to the Probate Registry. The Administrators can then start the process of settling any debts and dealing with any final tax returns if needed before distributing the remainder of the estate to the beneficiaries.

Who inherits the estate if there isn’t a will?

When someone dies without a will or if their will isn’t valid (for example, it wasn’t witnessed or if they got married after making a will), they have died “intestate” and there are certain rules to follow. Spouses, civil partners and children will usually take priority as beneficiaries and many jointly owned assets will automatically pass to the surviving co-owner. Below is a guide to what you can expect to happen in these situations.

Jointly held assets such as money in a joint bank account or a property co-owned jointly as a whole (this is known as being ‘joint tenants’) and is usually the case with a spouse or civil partner, will pass automatically to the surviving co-owner.

Spouses and civil partners then children will usually take priority as beneficiaries to the estate. This doesn’t include unmarried partners or partners who hadn’t entered into a civil partnership with the deceased.

If the deceased didn’t leave a spouse, civil partner or any children, their estate will pass to their parents if one or both are still living or to siblings if neither parent is alive. Other family members will inherit the estate if the deceased doesn’t have any living parents or siblings. In cases where the deceased has left no family, their assets will go to the Crown.

Anyone who has benefitted from the deceased’s estate can voluntarily give some or all of their entitlement to someone else if they wish.

Someone dying intestate is not always straightforward and it’s advisable to speak to a solicitor if there’s any dispute over who should benefit from the estate. If you feel you’re entitled to benefit from a deceased person’s estate or that the benefit you received was inadequate, you may be entitled to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Legal wording you may hear during probate

There are many decisions and arrangements to be made when a loved one dies and these will be especially difficult to deal with during this distressing time. You may hear some legal wording during probate, so here is an explanation on what these terms mean.

  • Advance decision – Another name for a living will.
  • Assets – Any item of value you own. For example, your home, land, money in bank accounts and building societies, cash, stocks and shares, pensions and investments.
  • Beneficiary – A person or organisation (like a charity) that benefits from your will by being given property or money, for example.
  • Chattels – An old-fashioned word for belongings, such as cars; pets; furniture; china; books; pictures; jewellery; household articles; musical instruments; TVs; computers; mobile phones and similar things. It doesn’t include money, investments, land or property (see assets, above).
  • Codicil – A document you create to change a will you’ve already made. It means that you don’t need to write a brand new will. For example, you can draw up a codicil to give an extra gift to someone.
  • Declarant – Someone who signs a will, statement or declaration.
  • Discretionary trust – A trust in which the legal owners (the trustees) have total control over how to use the trust’s income and capital. For example, they can decide who, and how much and how often someone receives payment from the trust.
  • Equity – The difference between how much your property is worth and how much there is left to pay on it – i.e. outstanding mortgage and other debts secured on it.
  • Estate – Everything you own when you die. It includes your house, any other property or land you own, savings, premium bonds, stocks and shares, plus all your personal belongings, for example, cars, caravans, paintings or jewellery.
  • Executor – Someone you name in your will as the person you want to deal with your estate when you die. They’ll be responsible for finding out what’s in your will and are in charge of making sure that everything you asked for is done (often called ‘administering your estate’).
  • Financial dependant – Someone who relies on you to provide for them financially, for example, a child, partner or a disabled person you care for.
  • Foreign assets – Anything you own outside England and Wales. It includes property; land; money in bank accounts and building societies; cash; stocks and shares; pensions and investments.
  • Free Estate – Items of value that you own and are free to dispose of under your will.
  • Full estate administration – This is the process of gathering information to establish the full value of the deceased’s estate, making an application for the Grant of Representation and then distributing the estate after any debts, expenses and taxes have been paid.
  • Grant of Letters of Administration – This will give the Administrators authority to deal with the deceased’s estate if they didn’t leave a will.
  • Grant of Probate – This will confirm the Executor’s authority to deal with the deceased’s estate if they left a will.
  • Grant of Representation – This will be a Grant of Probate if there is a will and a Grant of Letters of Administration if there isn’t a will.
  • Guardian – The person you appoint to look after your children if you die.
  • Incapacitated – When someone is prevented from functioning in the usual way because, for example, they are suffering from ill-health or have a disability.
  • Inheritance Tax – The tax that needs to be paid if your estate is worth more than a certain amount (you can find out how much this is on the Gov.uk website.
  • Joint tenants – The property is owned jointly as a whole, rather than each person owning an individual share. If either of the joint owners dies, then the property automatically passes to the other.
  • Living will – A statement of what you would like to happen to you if you become seriously ill or incapacitated and which has been made while you have the mental capacity to make your wishes. Also called an advance decision.
  • Longstop beneficiary – A ‘plan B’, meaning that if all the beneficiaries of your will die before you do, this is where the remainder of your estate goes.
  • Mirror wills – Two separate but identical or very similar wills. They are not the same as mutual wills (see below).
  • Mutual wills – Very similar or identical wills made by two people who both agree that they will not cancel or change their wills without the other person’s consent.
  • Mental capacity – The ability to make particular decisions for yourself and to understand what impact those wishes will have.
  • Mortgagee – Someone who has a mortgage.
  • Parental responsibility – Certain rights and responsibilities that someone has for a child, for example, making decisions about education or medical treatment.
  • Residuary estate – Everything left over after your debts, taxes, funeral expenses and administration costs have been paid and gifts from your will given away.
  • Residuary estate beneficiary – Someone who gains from your remaining estate in your will.
  • Revoke – To cancel. When you sign a new will, any previous wills or codicils you made are automatically revoked.
  • Severing a joint tenancy – Changing the way you own a property from a joint tenancy to a tenancy in common. For example, if you had a joint tenancy but wanted to own a specific share of a property so you could leave your share to someone when you die, the procedure is known as ‘severing the joint tenancy’.
  • Sole executor – One person you appoint to deal with the administration of your estate on their own.
  • Substitute beneficiaries – In wills, a substitute beneficiary means the person who will inherit if your first choice of beneficiary does not. E.g. if any of your children die before you, their share passes on to their children.
  • Substitute executor – A back-up person you can appoint in your will, in case your chosen executor dies before you or cannot act as the executor for some reason (e.g. because they are ill). If you have only named one executor in your will, it is a good idea to also add a substitute executor.
  • Substitutes – In wills, a substitute means that, if any of your children die before you, their share passes on to their children.
  • Tenants in common – The property is owned jointly with each owner owning an individual share. If either of the joint owners dies, their will should set out who is to have their share in the property.
  • Testamentary guardian – A person you appoint in your will as guardian with parental responsibility for your children.
  • Total assets – The combined value of everything you own, including your home, savings, valuables and other belongings.
  • Trustee – A person who is legally responsible for managing a trust.
  • Trust – A legal arrangement where someone or several people look after your assets on behalf of the person you are giving them to. For example, if you want your daughter to inherit at 21 but she is 15 when you die, the trust will hold onto her inheritance until her 21st birthday.

 

 

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