Category Archives: Probate

Lost Will

What happens after a death when you can’t find the deceased’s Will?

When someone has died and their Will can’t be located, although you are certain there is one, there are several courses of action you can take to try and locate it.

If you make a Will, you should ensure that your loved ones know where it is being stored. Otherwise, there is a risk that they won’t know whether you had a valid Will in place or where it is located.

When you have a Will professionally drafted, your solicitor is likely to be willing to store the document for safekeeping for you. You will be given a receipt with their details on it, which you should keep with your important papers.

Searching for a lost Will

When a Will can’t be located, you should first search the deceased’s property and go through their paperwork. Even if you don’t find the Will itself, you may find some information about their solicitor, a receipt for the Will or even a copy of the document.

It is possible that the firm of solicitors that originally held the Will no longer exists, in which case you can contact the Solicitors Regulation Authority Intervention Archives department who store all documents held by firms which they close down.

The London Principal Probate Registry also store Wills that can no longer be held by the original law firm involved.

Finally, a firm called Certainty have a register of a certain number of Wills and will search that for you for a fee.

If you are acting as executor or administrator, it is important that you make an attempt to find a valid Will. By undertaking these searches, you will be able to show that you did everything reasonable to locate any Will, which could be important if potential beneficiaries raise any queries about your actions.

Using a copy of the Will

It may be that a signed copy of the Will is found. Application for grant of probate can be made to the Probate Registry using the copy, but it will need to be accompanied by a sworn affidavit detailing the attempts you have made to locate the original.

You will also need to explain the circumstances under which the Will has been lost and also provide information regarding anyone who would inherit under the rules of intestacy but not under the terms of the copy Will.

When the Will can’t be found

If neither the original Will nor a copy can be located then it will be necessary to proceed with administration of the estate under the rules of intestacy. These provide a strict order in which close relatives of the deceased will inherit, starting with any spouse, who will be entitled to the majority of the estate, and followed by any children.

If you would like to speak to one of our expert Will experts, call us on 01243 216900 or email us at info@legalmatters.co.uk.

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Is it possible for a single executor to act in probate?

While it is possible for a single executor to administer an estate, it is usually recommended that two are named when a Will is written.

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, call us on 01243 216900 or email us at info@legalmatters.co.uk.

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Can you leave someone a legacy in your Will and also name them as your Executor?

When you’re writing your Will, you will need to choose the right person to be your executor. We look at what being an executor entails and whether that person can also be a beneficiary.

It is important when writing your Will that the executor you name is someone you trust to deal with your affairs after you’ve gone. Estate administration can be a long and sometimes complicated matter and you need to be sure that the person you have chosen is willing to act and capable of doing so.

It is perfectly acceptable for your executor to be a beneficiary as well, in fact this is often the case.

The role of executor

Your executor will be responsible for all administrative matters, starting with funeral arrangements and registering the death with the appropriate authorities. You can choose more than one executor should you wish.

They need to notify all asset holders and other organisations and then collect in and value the assets.

Other ancillary jobs such as putting vacant property insurance in place and making arrangements to check on any property regularly also fall to the executor.

Once the estate has been valued, tax needs to be calculated and paid. This includes Inheritance Tax, Income Tax and in some instances Capital Gains Tax.

Once the estate is in funds, outstanding debts need to be paid and estate accounts prepared.

The final job is to distribute the estate to the beneficiaries. This may involve transfer of assets and gifts of personal possessions as well as cash payments.

The role of beneficiary

A beneficiary will be notified that they have been left something in the Will, but won’t necessarily be regularly updated on the probate process unless there are delays. As well as receiving their named gift, they are also entitled to see the estate accounts.

If no valid Will exists

Where the deceased didn’t leave a Will, their estate passes under the Rules of Intestacy, which state that assets pass to close family members in a strict order. The spouse is at the top of the list, with children next. The person heading the list is entitled to act as executor if they choose. If they do not wish to take on the role, then the next person has the option of doing it.

By ensuring that you have a valid Will in place, you have the chance to appoint your choice of executor as well as ensuring that your assets are left to those you wish to benefit.

If you would like to talk to one of our expert Will writers, ring us on on 01243 216900 or email us at info@legalmatters.co.uk.

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Estate administration deadlines…

After someone dies, their assets need to be collected in and distributed to their beneficiaries. We look at the deadlines for completing this work.

The person who deals with the administration of an estate is known as the executor or, where there was no Will, the administrator. It is their job to value the estate, apply for probate if needed, work out any tax liability, discharge debts, liquidate assets, prepare estate accounts and arrange for distribution of the money and personal items in accordance with the Will or the rules of intestacy.

The time limit for administration

One year is allowed for completing the administration, with Inheritance Tax due by the end of the sixth month after the person’s death.

If the deceased had assets in many different places, for example different bank accounts, shareholdings and assurance policies, then it can take a considerable amount of time to even work out how much is in the estate.

For this reason, it is advisable to start work on the administration as soon as possible and make sure there are no avoidable delays.

If there is a property, this will need to be sold. Again, this can take a considerable amount of time, so the wheels need to be set in motion early on. This may involve valuing items, selling contents and arranging for clearance as well as the actual property sale itself.

When the work can’t be completed in a year

It is not unusual for administration to take longer than a year, for example if it takes a long time to find a buyer for the house or if there is an issue with a government department such as the Department for Work and Pensions.

Where the executor or administrator can show that they have acted in the best interests of the estate and that the delay is justifiable, then more time is usually permitted.

If the delay continues, interim accounts can be prepared and interim payments made to the beneficiaries. Beneficiaries will be entitled to interest on payments that remain outstanding after the one year period has come to an end.

Deed of variation deadline

If a beneficiary wants to change the share they receive, for example to include another family member or for Inheritance Tax reasons, they can execute a deed of variation to redirect part of their legacy to someone else. The deadline for signing a deed of variation is two years from the date of death.

If you are concerned about the time limits for completing an estate administration, you can engage a professional to deal with the work on your behalf.

If you would like to speak to an experienced probate lawyer, ring us on 01243 216900 or email us at info@legalmatters.co.uk.

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Foreign assets in a Will

How to deal with foreign assets left in a Will…

More people than ever are leaving assets in foreign countries when they die, making administration of their estate more complex. We look at some of the main considerations.

One of the first questions to be answered is which country was the permanent home or country of domicile of the deceased.

If you are domiciled in the UK, Inheritance Tax is payable on your assets wherever they are located. If you are domiciled elsewhere then you may be liable for Inheritance Tax on your UK assets as well as tax payable in other countries.

All of the assets in the estate need to be valued. At this stage, approaches can be made to foreign asset holders to ask what they need from the executor, such as a certified copy of the death certificate or Grant of Probate.

Foreign property ownership

A Will made in the UK may specifically refer to foreign property, or alternatively there may be a Will made in the country where the property is located.

If there isn’t a Will at all, then the property would pass under the rules of succession that apply in the country where the property is.

Other assets held abroad

Other countries may require to see the UK Grant of Probate which would sometimes be resealed in that country. Alternatively, it may be a requirement that probate is also obtained in the country where the asset is held.

Why you need expert advice for foreign assets

Administering an estate which includes foreign assets can be lengthy and complicated. The best way to ensure things go as smoothly as possible is for anyone with foreign holdings to seek legal advice in drawing up the relevant Wills to cover all of their assets.

Some countries may have laws which clash with those of the UK, for example in France and Spain, where property may pass to specific heirs regardless of the terms of any Will.

Finding out the situation well in advance and undertaking estate planning in the light of the different laws can make a huge difference to the executor or administrator of a Will.

When it comes to dealing with the administration of an estate containing foreign assets, it is advisable to take advice from lawyers in the country where the assets are held to ensure that their laws and tax requirements are not breached.

If you would like to speak to one of our expert Will and tax lawyers, call us on 01243 216900 or email us at info@legalmatters.co.uk.

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Dealing with business assets during Probate

Dealing with business assets during Probate…

When the owner of a business dies, probate can be lengthy and complicated as their business assets have to be valued and transferred.

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, call us on 01243 216900 or email us at info@legalmatters.co.uk.

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Client Testimonial

Client Testimonial…

When you lose someone you love it is always a difficult time. Having to deal with the paperwork involved in administering an estate after a death – and when you’re grieving – can be extremely upsetting.

That’s why at legalmatters we will always try to make the process as pain-free as possible for you – and why we’re always delighted to hear from a client when we’ve helped a family or an individual through such a stressful time. So thank you Jane for your kind words.

“Thank you and Megan, and all in the office staff for making my journey – sorting my dad’s estate through yourself and legalmatters – a professional, reassuring and stress free time. It’s been a pleasure and I would highly recommend you to friends.”

Disagreements during Probate

Dealing with disagreement between executors in the administration of probate

The administration of the estate of a loved one can be a difficult job.

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, call legalmatters on 01243 216900 or email us at info@legalmatters.co.uk.

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Is probate necessary if the deceased left a Will?

On some occasions it may be possible to deal with someone’s estate without needing to apply for probate.

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 01243 216900 or email us at info@legalmatters.co.uk.

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Is there a time limit for claiming a share of an inheritance?

If you believe you are entitled to something from someone’s Will, you may be able to make a claim, but beware of the time limits.

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, ring us on 01243 216900 or email us at info@legalmatters.co.uk.

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