Probate & Estate Administration

Probate is a single page document issued by the Probate Registry (a type of Court) to the people responsible for dealing with the estate of someone who has died, often known as the Executors.

To apply for Probate, you have to provide the Probate Registry with certain information about the deceased person and complete an Inheritance Tax form. An Inheritance Tax form has to be completed in all cases, even if there is no Inheritance Tax to pay.

The Probate document is shown to banks, the Land Registry (when dealing with a property), investment companies, etc. by the Executors as proof of their authority to deal with the assets of the deceased person.

A Grant of Probate is the full name of the Probate document issued to Executors named in a Will.

If a person dies without leaving a valid Will, certain family members can apply for Probate. In this instance the full name of the Probate document is, Grant of Letters of Administration.

There are other types of Probate documents which are issued in specific circumstances.

Whether, or not, you need Probate will depend on the assets held by the person who has died.

For example, if the deceased person owned a house in their sole name, Probate will be needed to sell or transfer the property.

If the person who has died left a Will, the Executors will need to obtain the original document.

At Couchman Hanson, we can assist you in trying to locate the original Will.

If the original Will cannot be located and you are certain the person who had died did leave a Will, we can advise you of the options for applying for probate without the original Will.

An Executor is a person (or persons) named in the Will to be responsible for dealing with the Probate process.

The Executors are responsible for ensuring all the deceased’s assets are dealt with, all the liabilities and expenses are paid, and the remaining funds are distributed as detailed in the Will. Therefore, it is important that the Executors fully understand the Will.

Also, the Executors are responsible to HM Revenue and Customs for any Inheritance Tax, Income Tax and other taxes.

An Executor takes control of all the deceased’s assets to ensure they are safe and obtains the original Will.

They have to establish the value of all assets and liabilities at the date of death. For example, property, bank accounts, investments, loans, credit card bills. Depending on the assets and liabilities in the estate, they may have to apply for Probate.

Once the Probate process is complete, they will distribute the estate as detailed in the Will.

The Probate process can be an onerous task depending on the amount/type of assets and liabilities the deceased left and the number of beneficiaries in the Will. Therefore, Executors are able to seek professional help from a probate Solicitor with the costs of the Solicitor being paid from the funds of the deceased.

• Their responsibilities as Executors

  • The role of an Executor has significant responsibilities. Sometimes Executors do not have a full understanding of their responsibilities. There are consequences if they do not deal with the deceased person’s estate correctly and report fully to HM Revenue and Customs correctly.

  • We recommend using a probate Solicitor to ensure you fulfil your role as Executor.

• The wording of the Will

  • If the Executors have not fully understood the Will, they risk distributing the assets of the deceased person incorrectly.

  • We would recommend you seek the advice of a probate Solicitor to ensure you have understood the Will correctly.

• The information beneficiaries are entitled to

  • Beneficiaries who receive a share of the residue estate are entitled to see a full account of the estate to show how their share of the residue was calculated.

  • We recommend that before any residue distributions are made, all the beneficiaries who receive a share of the residue estate approve the accounts.

• That the costs of a Solicitor are high

  • If the Executors decide to instruct a probate Solicitor to help them deal with the Probate process on their behalf, the cost of the Solicitor comes from the estate funds.

  • At Couchman Hanson, you will receive an estimate of the costs before you decide whether to instruct us and in some circumstances we can offer a fixed fee.

If the deceased person did not leave a Will, the person is said to have died “intestate”. If Probate is required, certain family members are able to apply for Probate.

In this instance, the full name of the Probate document is a Grant of Letters of Administration. The persons dealing with the Probate process for an intestate estate are called Administrators (not Executors).

The Probate process is complex. If there is a Will, the Executor must obtain the original Will.

In general, with or without a Will, the probate process is as follows:

• Secure the assets

• Ascertain the value of the assets and liabilities at the date of death

• If Probate is required, complete an Inheritance Tax form for HM Revenue and Customs and pay any Inheritance Tax that may be due

• Please note, an Inheritance Tax form will need to be completed even if there is no Inheritance Tax to pay.

• Apply for Probate

• Once Probate has been issued; collect in the assets, pay the liabilities and expenses, produce accounts and distribute the estate in accordance to the Will.

Please note, the above is a very simple description of the probate process and the actual work required will depend on the deceased’s assets, liabilities and other circumstances.

The amount of time it takes to deal with the Probate process will depend on the complexity of the estate.

For example, an estate may comprise of one property, two bank accounts and a small credit card liability with only two beneficiaries who both live in England. The time it would take to deal with this estate would likely depend on how long it takes to sell the property. Therefore, it could take 4 to 8 months.

If and estate is very complex, it can take a lot longer. Examples of what may make an estate complex are:

• more than one property

• numerous bank accounts and investments

• overseas assets

• large number of beneficiaries, some overseas

• conflict between beneficiaries

If you are looking for a Grant of Probate that has already been issued, you can contact the Probate Registry direct and request a copy.

Solicitors are regulated and have to adhere to strict rules. They have to be up to date with the law and act in your best interests at all times. Importantly, Solicitor firms must have professional indemnity insurance to protect their clients. This means that law firms provide a high level of professional services and advice.

The Probate process is complex. Executors have responsibilities and potentially liabilities and therefore must do their work correctly. Using a probate Solicitor to help them with the Probate process will give them peace of mind.

To check whether you are dealing with a regulated Solicitor firm, you can look up the firm on the Law Society website. Alternatively, you can check the firm’s website and headed paper for reference to them being regulated by the Solicitors Regulation Authority (SRA).

As Solicitors are regulated, we have to let you know what the costs will be, or at least an estimate of costs, before we start working for you.

The cost of using a probate Solicitor will depend on the complexity of the estate and how much work you would like the probate Solicitor to do.

The Executors do not have to use the Solicitor firm that drew up the Will to help them with the Probate process. They can use a different firm of Solicitors if they wish.

At Couchman Hanson, we offer a free 30 minute meeting to people responsible for the Probate process to discuss their specific requirements. Once we know what work is required, we provide an estimate of our costs before we do any work. In certain circumstances, we can offer a fixed fee.

Therefore, you will know what the costs will be before you decide to instruct us.

If a beneficiary has any concerns with the way the Executors are dealing with the Probate process, they can seek advice from a Solicitor.

The Solicitor can look into their query and let them know their position. If necessary, the Solicitor can communicate with the Executors, or their Solicitors, on behalf of the beneficiary.

• Powers of Attorney end on death

  • Any appointment as an attorney ends on the death of the person who made the power of attorney document. Therefore, if you are appointed as an attorney under a Lasting Power of Attorney, Enduring Power of Attorney or any other power of attorney document, your role will end at the date of death.

  • The attorneys will no longer have any authority under the power of attorney document to deal with the assets of the person who has died.

• If there is a property

  • Check it is secure. Change the locks if necessary

  • Check it is insured. Look for the insurance documents and notify the insurance company of the death. Often insurance companies have certain requirements if a property is unoccupied, for example it may need to be checked every seven days.

• Arranging the funeral

  • The deceased may have a pre-paid funeral plan. Check their papers for any reference to a plan. Also, check with whoever is holding the original Will as to whether there is any paperwork relating to a funeral plan with the Will.

  • The cost of the funeral can come from estate funds. Check who is responsible for dealing with the estate before you arrange the funeral. If you are not the Executor named in the Will, we recommend you seek approval from the Executor before making the funeral arrangements. Also, ensure the Funeral Director is aware of who the Executor is and that it is the Executor they are to seek payment from.

Please note, the above is not a comprehensive list of initial points, it is just a few points that we wish to highlight.