Category Archives: Probate

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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Estate Administration

Making payments from a deceased’s estate…

If you’ve been left money or a share in someone’s estate, you may be wondering what liabilities you have. Do you need to pay tax on the money, and who is responsible for clearing any debts the deceased may have left?

After someone dies, their personal representative is responsible for winding up the estate. It is their job to collect in all the assets, sell any property and pay debts, including tax liabilities. Once this has been done, they will then distribute the funds in accordance with the Will or, if no Will was made, under the rules of intestacy.

Who is responsible for making payments from an estate?

If a Will was made, this will usually name a personal representative, known as an executor. If there was no Will, the Probate Registry will appoint an administrator.

This is the person who will be responsible for gathering in the money and settling any bills.

Debts are payable in a set order.

  1. Secured debts such as a mortgage
  2. Reasonable funeral costs
  3. Estate administration expenses
  4. Payments due to employees
  5. Unsecured debts

Estate administration expenses

These are usually the main expenses to be dealt with when winding up an estate and include the costs incurred by the personal representative, such as probate fees, estate agency and valuation fees, Income Tax and Inheritance Tax.

Making payments to beneficiaries

Once all of the debts have been paid, then the estate can be distributed to the beneficiaries. Personal possessions will be passed in accordance with the terms of any Will.

Cash payments are made in a strict order of priority.

Firstly, specified gifts of money are made to named beneficiaries.

After these have been paid, the residue is divided in accordance with the terms of the Will. A residual beneficiary can request a copy of the estate accounts, which will set out all income and expenses.

The amount of any taxes and other debts will therefore reduce the money paid to the residuary beneficiaries, as they are the last in the queue, after any specific cash legacies.

For help with administering an estate, call the probate experts at legalmatters on 01243 216900 or email us at info@legalmatters.co.uk.

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How long does probate take

How long does probate take and what can cause delay…

Winding up the estate of a deceased person can take many months, particularly if it is less than straightforward.

Following someone’s death, it takes an average six to nine months to finalise their affairs and distribute funds to the beneficiaries. The process can be complicated and frequently takes longer than this if difficulties arise.

A personal representative, either an executor or administrator (if there is no Will), has the job of listing in all the deceased’s assets and valuing them. Once this has been done, they need to work out how much tax is owed.

This needs to be paid to HMRC, who will issue a receipt, allowing the executor to apply to the Probate Registry for Grant of Probate.

The Registry will go through the paperwork and issue the Grant allowing the executor to deal with the estate’s assets. This involves selling or transferring everything that the deceased owned.

Possible delays

HMRC can take a long time to agree the information in respect of tax liability. The personal representative will then need to arrange for payment. If this is not possible, they may be able to request that HMRC provide a form allowing them to apply for a Grant on Credit.

The relevant receipt then needs to be forwarded to the Probate Registry along with the application and supporting paperwork, including the Will itself.

If the Probate Registry has any doubts about the validity of the Will, for example if it does not appear to have been witnessed properly, it will delay granting probate until it is satisfied.

This may involve providing documentation from the witnesses and whoever drew up the Will.

Once the Grant has been issued, the executor needs to gather in the assets by writing to banks, building societies, insurance companies etc, sending a certified copy of the Grant of Probate and asking for accounts and policies to be closed and a cheque for monies due to be sent to them.

One of the most time-consuming parts of winding up most estates is the house sale. The property will need to be cleared before the completion date, and a sale alone will usually take two or three months and frequently much longer.

The personal representative is responsible for locating all the beneficiaries, which can take time if the Will was made many years previously and people have dispersed.

If a Will contains any ambiguity or family members feel that they were due money which in fact has not been left to them, disputes may arise which will delay distribution of the estate funds, in serious cases for years.

If you need help to administer an estate professionally and without undue delay, call one of our experts at legalmatters. Call us on 01243 216900 or email us at info@legalmatters.co.uk.

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Beneficiaries to a Will

When beneficiaries to a Will can’t be identified…

A surprising number of difficulties and disputes arise when the beneficiaries to a Will can’t be identified easily.

Although it may be clear when a Will is drawn up who the writer intends to leave their assets to, as time goes by beneficiaries may change their names, often more than once, and/or move away.

Often, a long period of time elapses between the writing of a Will and the administration of the estate. If a Will doesn’t make absolutely clear who is to inherit, it can cause numerous problems for the executor or administrator when they have to find and identify everyone named.

Why you need to do more than just name your beneficiaries

If your Will simply names a beneficiary without any further identifying information, then over the years it can be hard to trace the person intended.

Women in particular may change their names several times throughout their lifetime on marriage, divorce and remarriage.

To help the person who will eventually administer the estate, it is a good idea to include other identifying information, such as address, date of birth and the beneficiary’s relationship to you.

A note containing new addresses can also be put with the Will to make contacting people easier. Beneficiaries will also need to provide the executor with relevant evidence of any change of name, such as a marriage certificate or deed poll.

Why attention to detail in a Will is essential

It is also important to make sure that everyone’s name is correctly spelled in a Will. While an incorrect spelling does not invalidate a gift, it can cause difficulties for the executor and even lead to disputes.

Again, by putting in other identifying information, it will be easier for the executor to be clear exactly what your intentions were.

A professional lawyer will be able to write a Will for you that is clear and unambiguous, with all of your beneficiaries accurately identified. This can avoid expensive and damaging disputes and make sure your intentions are carried out.

To speak to one of our experts about having your Will drafted, ring us on 01243 216900 or email us at info@legalmatters.co.uk.

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How will the “stealth death tax” impact charities?

Charities are worried about the impact the new “stealth death tax” could have on legacy giving.

The Government is facing condemnation after its plans to hike the cost of applying for probate were revealed. Under the proposals, some grieving relatives would need to pay death taxes of up to £6,000 to secure legal control over a deceased’s estate.

But in addition to families, charities could also feel the impact. In fact, according to The Institute of Legacy Management (ILM), charities will lose out by more than £10 million per year under the proposals.

In response, the Government has been asked to reconsider its stance. Speaking about this issue, the Chief Executive officer of ILM, said that it was deeply concerned by the proposed rise in probate fees.

At present, the current cost of securing probate is £215, or £155 for families who use a solicitor. However, if the Government gets its way, this cost could soar to £6,000 from April next year. This could have a devastating impact on those charities who are reliant on legacy gifts and significantly reduce their income.

At a time where many charities are struggling to meet increasing demand for their services, this could have a considerable impact on many groups across the UK.

The proposals have also come under fire for being a “stealth tax”. This is because the current fees cover the average costs of making a grant of probate, but the new fee structure is hugely disproportionate.

Is it a new tax?

Introducing a new tax requires new legislation. But the Government is using its existing powers to force the change rather than passing a new law. If passed, the new tax will side-step the long-established exemptions and reliefs of the inheritance tax regime, including the charity exemption.

With concerns that this stealth tax will be shouldered – in part at least by charities – the impact on the sector is expected to be significant. So much so that millions of much-needed funds could go to the Government, rather than being used to fund vital services.

The Government has responded by stating that the cost to the charity sector is “not expected to be substantial”.

To find out how to maximise any legacy you want to leave to a charity, speak to one of our expert team by calling 01243 216900 or email us at info@legalmatters.co.uk.

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Probate fees

How will increased probate fees affect YOUR estate?

Many families will have to pay more in probate fees from April 2019. That’s according to new proposals that see a hike in the cost of applying for probate.

The Government has claimed that fees are necessary to fund an effective and fair court and tribunals system. However, under the plans, some grieving relatives will have to pay death taxes of up to £6,000 to secure legal control over a deceased’s estate.

What are the main changes?

At present, the current cost of securing probate is £215, or £155 for families who use a solicitor. But, under the new plans, the Government has linked the charge to the size of the estate. This means that:

  • Inheritances of less than £50,000 will be exempt (the current threshold is just £5,000)
  • Estates valued between £50,000 and £300,000 will pay a fee of £250
  • Those between £300,001 and half a million pounds will now pay £750
  • Estates between £500,001 and a million will pay £2,500
  • The cost could go up to £6,000 for estates estimated at over £2 million.

The reforms will also make it easier for grieving families to make the application online while helping people lacking in computer literacy.

Are the changes fair?

While it might seem fair that larger estates have to pay more, these fees must be paid upfront by loved ones (who might not have access to this kind of money).

This also fundamentally changes the fee-structure for applying for probate. Until now, the cost has existed to cover the average costs of making a grant of probate. However, the new fee structure is hugely disproportionate leaving some people to argue that it is actually a “stealth tax”.

However, according to the Government, the new banded fee model represents a “fair and more progressive way to pay for probate services compared to the current flat fee”. It also argues that, for those who do pay, “around 80% of estates will pay £750 or less”.  It has said that fees will never be unaffordable and that options will exist to help families choose a way to pay which suits their circumstances.

Nevertheless, with assets from an estate frozen until the executors receive the grant of probate, questions still exist over how some executors will manage to pay the probate fees. Especially for people who may have little money in the bank, despite valuable estates and properties.

To find out more about how the new probate fee structure could impact your estate, speak to one of our expert team by calling 01243 216900 or email us at info@legalmatters.co.uk.

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Thank you!

When “thank you” means so much…

It’s a tough time when somebody you care for dies and we’re pleased when we’re able to lighten the load. At such a tough time when there’s such a lot to do, it’s a delight when clients takes the time to say thank you:

“I’d like to say a big thank you to yourself and your firm for all your help and support over the last few months!! It’s much appreciated. Thank you.” Darren & family

Thank you too, Darren. We’re glad that everything is now settled. Good advice in a supportive and caring manner is what we like to give.

selling a house

Selling a home when someone has died…

When a person dies, if they owned property in their sole name this will need to be transferred to a beneficiary or sold as part of Probate. Here are some things to consider if the home needs to be sold.

Applying for a Grant of Probate

Probate is the legal process for dealing with the distribution of a person’s estate after they have died. To start the Probate process, a Grant of Representation is required. The sale of the property cannot be completed until the Grant of Probate has been issued.

Getting the property valued

It is essential to obtain a proper valuation of the property; backdated to the date of death. To ensure an accurate figure, it is a good idea to get more than one valuation.

Get the contents valued

As well as the value of the property you should also consider its contents. This will need to be valued as part of the deceased’s Estate. You should also locate and secure any valuable items in the house (e.g. jewellery, share certificates etc.).

Protecting the property

One of the first things you should do is make sure that the home is secure. Particularly if it is empty. Check that it is safely locked up, and switch off the appliances and water. You should also remove valuable items that might be at risk of theft.

Make sure the home is insured

Under some insurance policies, a home is not insured if it is left sitting empty for a certain period. Likewise, the death of the policyholder could terminate the policy. Contact the home insurance provider to inform them of the situation and find out what you should do next.

Locate the Deeds

If the property was owned for several decades, the Title might not have been registered at HM Land Registry. In such situations, you’ll need the Deeds to prove ownership.

Let the relevant organisations know

As well as the insurance provider, you should also contact anyone else involved in the property. For example, the local council and utility providers.

Instruct an estate agent and conveyancing solicitor

You can put the home on the market while you’re awaiting the Grant of Probate. But be aware that it can take 3-6 months for a Grant of Probate to be issued (even longer in more complex estates).

Prepare the home for viewings

It is always a good idea to give a home a thorough appraisal before letting viewers in. Where appropriate, consider what needs tidying, fixing etc. to showcase the property at its best.

To help you through the Probate process, speak to one of our expert team speak at legalmatters. Call us on 01243 216900 or email us at info@legalmatters.co.uk. We can take over the responsibility for you and make sure everything is carried out in line with the law, and the wishes of the deceased.

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Administer an estate

Should you use a lawyer to help administer an estate?

Losing someone you love is never easy. And, for families faced with administering an estate, it can be even harder. At such times, the support of a professional can help to reduce the burden.

Many people seek professional help when grieving. Not least because, the pressure of administering the financial affairs of a deceased loved one can be overwhelming.

Even the most organised of us might not cope well. Particularly as, for many people, looking after themselves and their family takes up most of their time.

When someone dies, it’s not uncommon for family disputes to arise. This can happen regardless of the size and complexity of an estate (the money and possessions left by the deceased). But, having a neutral party you can turn to for impartial, professional advice can help to relieve any tension and stop it from escalating.

What is involved when administering an estate?

Probate is the legal process for dealing with the distribution of a person’s estate after they have died. There are many duties and obligations under Probate, including:

  • Getting a Grant of Probate (where there is a Will)
  • Interpreting the Will correctly
  • Making sure you are working from the right Will
  • Ensuring the Will is carried out correctly
  • Identifying all of the assets of the estate
  • Correctly valuing the assets
  • Identifying and settling the liabilities of the estate
  • Establishing how much the estate is worth
  • Ensuring that the estate is appropriately managed
  • Opening an executor’s bank account to hold estate funds during the administration period
  • Looking after unoccupied properties (e.g. making sure they are insured)
  • Preparing tax returns for Inheritance Tax, Capital Gains Tax, Income Tax and Stamp Duty Land Tax
  • Placing Trustee Act notices to advertise for creditors to come forward.

Sometimes this process can get contentious and lead to unwelcome and stressful family disputes.

Do you need professional help?

You can administer an estate without a lawyer, however expert advice can be hugely valuable. Dealing with an estate can be a complex and emotionally challenging process, but you need to stay focused. Not least because, without legal expertise, errors and delays are not uncommon.

Crucially, if you make a mistake or fail to administer the estate in an efficient and timely manner, you could be held personally liable. Professional advice will make sure you are supported and protected.

To find out more about how we can help, take a look at the Estate Administration section on our website, or speak to one of our expert team. Call us at legalmatters on 01243 216900 or email us at info@legalmatters.co.uk.

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