Straightforward Guide To Probate And The Law

Revised Edition

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• Publisher: Straightforward Publishing Digital
• Year: 2014
• ISBN:
  9781847162755
• Topic: Law
• Subtopic: Civil Law
• Index: Law

A Straightforward Guide to Probate and the Law, Revised Edition, is a concise and informative guide to all the processes that underpin probate and the obtaining of probate. The book is designed exclusively for anyone who is either a family member or who is acting as an executor of an estate. By using this clear and easy to understand Guide, the processes of applying for probate and also understanding taxation and the final account and finalising the probate process will become clear. Will formulation is also covered.

Chapter 1

Probate

 

What is probate?

When a person dies, it is necessary for someone to be appointed, with legal authority, to manage the deceased’s financial affairs and wind up his/her estate. In law, the uncompleted financial matters of a deceased are known as ‘the estate’ and the person who is given the legal authority to wind up the estate is called the legal personal representative. After the application for probate, the document which proves the legal authority of the personal representative is called the grant of representation to an estate.

Where to get a grant of representation to an estate

Grants of representation to an estate are obtained from an office of the High Court known as the Probate Registry. The process of obtaining the grant is commonly known as ‘probate’.

If someone leaves a will but dies without appointing an executor to carry out the terms of that will, or if the executors who are appointed by the will are unable or unwilling to carry out the duties of an executor, then the grant of representation obtained from the probate registry to prove that the will is a valid one and to authorize the person who obtains it to carry out its terms is called ‘letters of administration with the will annexed’. If someone dies without making a will, that person dies intestate and the grant of representation obtained from the probate registry to authorize someone to wind up the estate is called ‘letters of administration of the estate’. Those who obtain letters of administration are known as administrators of the estate. The main difference between the executor appointed under the will and the administrator of an estate are that an executors powers are given by the will and are more or less immediate whereas the administrators powers cannot be exercised until the Registry has appointed the administrator.

Essentially, probate and letters of administration can be seen as title documents to the assets of the deceased person’s estate. However, there are a few assets where they are not required and can be dispensed with. These include what are known as nominated assets, jointly owned assets owned as joint tenants, estates of small value and estates which consist entirely of personal effects and/or personal currency. There may however still be a requirement to deal with HMRC in relation to inheritance tax. If in doubt contact the HMRC helpline 0845 3020900.

Property held jointly

Assets owned jointly are those that are not held in the sole name of the deceased. In English law, there are two ways of owning property jointly, either as joint tenants or tenants in common. In this sense, the word tenant doesn't mean tenant in the sense of landlord and tenant but is used universally in relationship to ownership of property.

If property is held as joint tenants the law clearly states that on the death of one of the owners, that person’s share of the property does not become part of his estate (except for the purposes of Inheritance tax), it is inherited by the surviving joint owners, regardless of what is contained within the will. However, if property is held as tenants in common, the law states that on the death of one owner that persons share of the jointly owned property does become part of his or her estate.

The line between jointly owned property and property held as tenants in common is fine. However, there are a few obvious indicators. Usually, if bank or building society accounts are held jointly, along with stock and shares, they are considered joint tenancies. However, there has to be evidence of equal ownership of property. Any evidence to the contrary such as unequal payments, or sharing of rents, dividends etc, can mean tenancy in common.

Value of the estate

Estates valued under £15,000 gross

If the value of an estate before deducting the cost of the funeral and any debts left by the deceased is under £15,000, it is usually worth contacting organizations such as banks or building societies holding assets, to request that they make payment to the personal representative without going through the formalities of obtaining a grant of representation. They may or may not co-operate but it is worth contacting them. If the amounts involved are low then banks or building societies will co-operate on sight of a valid original will or if there is no will they will deal with the next of kin and a solicitor.

Obtaining a grant of representation and letters of administration

There are a number of main steps involved in obtaining probate or letters of administration with the will annexed or letters of administration and then administering the estate:

1. Obtaining the information necessary to fill out the paperwork to obtain the grant of representation.

2. Preparing the documentation and then lodging the documentation to obtain an inheritance tax assessment and the issue of the grant of representation.

3. Registering the grant in connection with the various assets and giving instructions as to how they are to be dealt with and collecting what is due to the estate.

Following the completion of the three main steps above there are a further three steps:

1. Finalise the income and Capital gains tax positions

2. Pay off the debts and discharge the liabilities of the estate.

3. Distribute the remaining assets of the estate to the beneficiaries.

Dealing with the estate yourself or employing a solicitor

There are obvious advantages to using a solicitor. These are that solicitors are trained in law and can usually give sound guidance. They are usually necessary when it comes to complicated wills. They will take a lot of the work away from the executor which can be very helpful. They also have insurance to cover themselves against negligence. The obvious disadvantages can be the cost. Solicitors charge anything from between £150-250 per hour. In addition, a percentage charge can be made depending on the value of the estate. This is usually between 1-2% of the estate depending on value. If you intend to use a solicitor make sure you are fully acquainted with the costs before you instruct them to act.

Problems with personal representatives

In some cases, a will can specify an executor but that person is unwilling to act. Generally speaking, there is no legal obligation upon an executor or any other person entitled to apply for a grant of representation to apply for one. A person can give up their right to apply by signing a document to that effect, but this document is not binding until it is lodged with a probate registry. When it has been lodged with a Registry he or she cannot then change their mind unless permitted by the court, which is rare. The only person who cannot refuse to take out a grant of representation is an executor of a will who has ‘intermeddled’ with an estate, which means someone who has already done something which shows an intention to act as executor or apply for a grant of probate.

Removing someone unsuitable to act

If a person who has already taken out a grant of representation to an estate behaves in a manner which is considered improper in relation to the estate or proves unsuitable in some other way, it is then usually possible to commence proceedings in a court to ask that he or she be removed from the position of personal representative and someone else replace him.

Stopping an application for a grant

If someone who is claiming an interest in an estate feels that an application has been made which should not be issued and he or she wants to make their views known to the registry, he or she can give notice to the registry that they wish to be heard before a grant is made. This notice, which is called a caveat, must be in writing and signed by the person issuing the notice. This caveat will last for six months and while it is in force no grant of representation, other than one limited to the below can be made:

• the administration of an estate until the conclusion of litigation currently taking place in the Chancery Division of the High Court in relation to the estate

• the preservation of an estate which will be endangered by delay in administering it.

 

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Chapter 2

The will

Who can wind up an estate?

To answer this question we need to go right back to the will, or the existence of a will or otherwise. Who will be entitled to wind up the estate depends on whether or not the deceased has left a valid will or codicil appointing an executor who is still living and prepared to act as an executor. A codicil is a document separate from the will but which is similarly signed and completed and annexed to the will and adds to or amends the will.

The existence of a will

There are several scenarios to consider here. If it is believed widely that the deceased person has made a will but the will cannot be found it may well have been lodged for safe keeping with the deceased’s solicitor, bank or other person such as the accountant. If all enquiries draw a blank then enquiries can be made to the Record Keeper’s Department at Principal Probate Registry, which is situated at First Avenue House, 42-49 High Holborn, London WC1V 6NP Telephone [phone]. Wills can be deposited here for safe keeping. The Registry maintains an index of wills which is search...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Introduction
• Chapter 1. Probate generally
• Chapter 2. The Will
• Chapter 3. Initial Steps-The Roles and Responsibilities of Executors Pre-Probate
• Chapter 4. Applying for Probate
• Chapter 5. Post Probate-The Distribution of the Estate
• Glossary of terms
• Useful Addresses
• Appendix 1. Sample letters pre and post probate
• Appendix 2. Sample forms for probate applications
• Index