Category Archives: Probate

What is probate?

What is probate?

Probate is not a topic of conversation that many wish to have, but most people will have to deal with probate at some point in their life, so it best to know what the process is and what is involved.

What is needed to distribute a person’s estate?

When a person passes away and leave behind what is known as their estate; this will include their possessions, money and any property.  For an estate to be distributed, the person or people dealing with it will need a ‘grant of representation’, which will depend on the circumstances of how the deceased left their estate.

If a person has left a will, executors or personal representatives will have been appointed to distribute the estate.  To do this they will need to get a ‘grant of probate.

If a person has died with no will, known as intestacy, the next of kin will need to apply for a ‘grant of letter of administration’.

What happens when a grant of representation is obtained?

A grant will allow those winding up the estate to legally take control of the estate and distribute it either according to the wishes in the will or to the rules of intestacy, which is currently what is known as probate.

What happens during probate?

The process of probate will involve gathering up any assets, paying any bills and then distributing what remains.  The grant will allow the person dealing probate to begin gathering up the estate by sending copies to companies that may hold assets, such as bank accounts, life insurance, pension providers and mortgage companies.

Any joint accounts will automatically transfer to the other party, which is the same for any property hold as joint tenants, under survivorship.  However, if property is owned as tenants in common, the deceased’s share will pass in accordance with the will or by the rules of intestacy.

Does probate need to be done for every estate?

No, not every estate needs to have the representative obtain a grant of representation.  If the estate is going to pass through survivorship or to a spouse, probate is not usually required.

Probate is also not required when the estate is ‘small’, which generally means the estate is worth less than £5,000. However, there are other circumstances where probate may not be required, such as when the estate is straightforward and falls well below the Inheritance Tax threshold.

If you are unsure as to whether a grant of representation is needed for probate, it is best to get professional advice.

Services from legalmatters during Covid-19 pandemic

Here at legalmatters, we continue to do everything we possibly can to service our existing and new clients during these very difficult times.

Our ability to provide remote services makes us stand out from the crowd.  This means that you can deal with your will, power of attorney, probate, trust and tax advice etc all over the phone or by email and documents are sent to you by post.  We are also advising our clients on signature processes bearing in mind social distancing measures.

Meanwhile, the office continues to operate with minimal skeleton staff for the protection of our staff, clients and visitors, enabling us to still process physical documents for our clients.  If you do find that you need to call into the office for instance to have documents witnessed when it is otherwise difficult for you to arrange that with family and friends then do please get in touch.

If you would like to speak to one of our expert lawyers about Probate, ring us on 01243 216900 or email us at info@legalmatters.co.uk.

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Probate changes

What changes have been made when applying for probate?

All estates of any deceased person need to go through all legal channels before the deceased’s assets can be distributed to all beneficiaries.

In England and Wales, this is referred to as the Grant of Representation and will be needed even if the deceased did not leave a Will. Any Will executor will need to apply for a Grant of Probate whilst anybody looking to administer the estate of those without a Will will need to apply for a Grant of Letters of Administration which will enable the executor to administer the estate under intestacy rules.

During lockdown, completing the administrative process of applying for probate has changed and executors or probate professionals will need to ensure they are adhering to the new system to avoid the form being returned and the process getting delayed.

At the end of March HM Courts and Tribunals Service introduced an eight week introductory period for a new standard grant of representation application forms. The introductory deadline lapsed on May 18 and all forms will now need to comply with the changes if they are to be processed.

The main change will see older iterations using ‘statements of truth’ obsolete and any forms sent after May 18 which uses this older system, will see their forms returned.

The new forms have been designed to digitize information from the start of the process, reducing the number of errors and creating a more efficient process as the new forms can be bulk scanned.

Three grant of representation forms have been redesigned. Any executor applying for probate will now use the updated PA1P form.

Those who are administering an estate without a Will and applying for a grant of letters of administration should apply for a PA1A form.

Anyone needs to apply for a caveat will need to use the updated PA8A form.

Services from legalmatters during Covid-19 pandemic

Here at legalmatters, we continue to do everything we possibly can to service our existing and new clients during these very difficult times.

Our ability to provide remote services makes us stand out from the crowd.  This means that you can deal with your will, power of attorney, probate, trust and tax advice etc all over the phone or by email and documents are sent to you by post.  We are also advising our clients on signature processes bearing in mind social distancing measures.

Meanwhile, the office continues to operate with minimal skeleton staff for the protection of our staff, clients and visitors, enabling us to still process physical documents for our clients.  If you do find that you need to call into the office for instance to have documents witnessed when it is otherwise difficult for you to arrange that with family and friends then do please get in touch.

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

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Do I need to be an executor

Do I need to be an executor?

A person is able to entrust their estate to relatives, friends or organisations – like banks or a firm of solicitors – when deciding who they would like to administer their final wishes.

A person making a Will also has the right to appoint as many executors as they feel necessary to administer their estate effectively and properly.

However, as a maximum of four people are able to apply to the Probate Registry for a Grant of Probate, this figure tends to be the maximum number.

If the deceased has named more than one executor to help administer their estate, there are many positives in applying for a Grant of Probate as a unified team. This can help provide a level of equality and ensure that all voices are heard. Preventing disputes is really important to ensure an efficient and swift administration of the estate and ultimately distribution of assets to beneficiaries.

Some people may not feel comfortable with this responsibility and may not want to undertake the role. Whilst it is important to consider the deceased’s wishes, there are various routes a person can take.

 Creating a Power Reserved Letter

 Any executor named in the Will who does not want to apply for probate or who cannot practically help with the administration of an estate will need to inform the Court of this via a Notice of Power Reserved.

The power reserved letter will effectively mean that you relinquish your responsibilities and entrust the administration of the estate to the executors applying for probate but allows you the right to rekindle your responsibilities in the future.

The Grant of Probate, once issued, will name the executors who had applied but will also state that an un-named executor has the power reserved. This can be useful if the executor in question is ill or living abroad and therefore unable to deal with the administrative obligations.

Given the current situation involving Covid-19, increased levels of illness and travel restrictions, this option may be needed.

Renunciation – resigning as executor

An executor has the right to resign from the position at any point and can renounce their right to apply for probate via a Deed of Renunciation.

This process can only take place if the Will executor has not had any formal dealings in administering the estate up to the point they decide to renounce their role.

This process is usually binding. Following the submitted Deed of Renunciation to the probate registry, the executor will sever all ties with the estate.

Services from legalmatters during Covid-19 pandemic

Here at legalmatters, we continue to do everything we possibly can to service our existing and new clients during these very difficult times.

Our ability to provide remote services makes us stand out from the crowd.  This means that you can deal with your will, power of attorney, probate, trust and tax advice etc all over the phone or by email and documents are sent to you by post.  We are also advising our clients on signature processes bearing in mind social distancing measures.

Meanwhile, the office continues to operate with minimal skeleton staff for the protection of our staff, clients and visitors, enabling us to still process physical documents for our clients.  If you do find that you need to call into the office for instance to have documents witnessed when it is otherwise difficult for you to arrange that with family and friends then do please get in touch.

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

Enjoyed this post? Why not sign up to legalchatters, our free news, views and updates service direct to your mailbox. Or Like Us on FaceBook.

How to get a house and contents valued for probate

How to get a house and its contents valued for probate…

How to calculate the value of a property and its contents for probate

Probate is the legal process where you manage a deceased person’s possessions and allocate their money, assets and belongings once they have passed away – this is known as their ‘Estate’.

From the outset of probate it will be essential to calculate the total value of the Estate to find out if inheritance Tax is required to be paid.

More often than not, one of the largest assets that a person will own is their home and all their belongings inside. So, how do you work out how much everything is worth in readiness for probate?

Valuing a property and assets throughout the Probate process

One of the most crucial parts of the Probate process is valuing the deceased’s home and possessions. Throughout the administration of the Estate, you will need to keep a log of how much money is being transferred into and going out of the Estate in order that you can pay in total remaining debts owed and work out how much inheritance remains to give to the beneficiaries who are entitled to it.

When making these calculations it makes it clearer in terms of inheritance tax (IHT) and whether the Estate is liable for it or not. If the estate is accountable for tax, you will be able to calculate how much. You will then need to pass all the information to HM Revenue & Customs.

Valuing a house and its contents can be a difficult task but there are processes in which you can follow to make it easier. Following processes will help you in the long run as it lessens the risk of a dispute with HM Revenue & Customs.

How to calculate the value of property during probate

It is important to remember when calculating the value of a property or land that there are various factors impacting the price of it. These factors include development land opportunities, remedial maintenance needed to the property and sales of properties alike in the surrounding area.

If the Estate is liable for IHT, it would be prudent to seek a valuation from a Chartered Surveyor as they are skilled and experienced in providing valuations specifically for IHT so are much more likely to be approved and acknowledged by the HMRC.

How to Get a Property Valuation in Probate

To ensure the accuracy of a property valuation, the District Valuer Service (DVS) of HMRC would need to check and examine the valuation presented to them. If the DVS think the valuation is wrong, they will contest it and ask for additional evidence to back up the valuation given. If Executor(s) of an Estate negligently obtain a property valuation they could be at risk of being fined. Equally, if Executor(s) found the valuation sent to HMRC was too low, they will have to contact the HMRC in writing to advise them of the correct value.

If the deceased person’s property was jointly owned with someone else, known as ‘Joint Tenants’, then the property value will need to be split down the middle to find out what the deceased owned. However, if the property was owned jointly with someone else as what is known as ‘tenants in common’, then the value will need to be worked out along the lines of what proportion of the property the deceased owned e.g. 60/40 split between owners.

Working out the value of the house belongings

The first stage when valuing the contents of a house is to make a list of items which you think might be worth something e.g. cars, jewellery and furniture. Next, do some research on the internet to find out how much the items are worth or sold for, taking into consideration their age and condition. For specialist antique items it is advisable to seek a professional valuation who have the expertise and specialise in valuing these items.

Working out the Value of the Estate for Inheritance Tax

IHT will only need to be paid if the value of the Estate surpasses the nil-rate band. At the moment, the nil-rate band is £325,000. If the Estate is worth less than £250,000, HMRC will probably be happy with an estimated value. However, if the estate is worth more than £325,000, it will be obligatory to pay IHT, although there are some exceptions whereby you could end up paying less IHT by increasing the threshold due to certain factors.

It is crucial to understand that when valuing the Estate for IHT that you calculate the ‘gross’ value of the taxable Estate. The taxable estate includes all assets which are owned by the deceased, plus any gifts too in the 7 years before they passed away.

Apart from the deceased’s home and contents, other assets will need to be looked into such as bank accounts, pensions, investments, shares and life insurance.

Services from legalmatters during Covid-19 pandemic

Here at legalmatters, we continue to do everything we possibly can to service our existing and new clients during these very difficult times.

We work with specialist valuation companies who continue to provide formal valuations of property during Covid19 by providing desktop valuations.  These valuations are thorough and rarely lead to enquiries from HMRC. Our ability to provide remote services makes us stand out from the crowd.  This means that you can deal with your will, power of attorney, trust and tax advice etc all over the phone or by email and documents are sent to you by post.  We are also advising our clients on signature processes bearing in mind social distancing measures.

Meanwhile, the office continues to operate with minimal skeleton staff for the protection of our staff, clients and visitors, enabling us to still process physical documents for our clients.  If you do find that you need to call into the office for instance to have documents witnessed when it is otherwise difficult for you to arrange that with family and friends then do please get in touch.

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

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Unresponsive...

When an Executor fails to deal with the administration of a Will

If the administration of an estate is delayed because an Executor stops responding, it can be frustrating for everyone.

A Will may name one or more Executors whose job it is to deal with the winding-up of the deceased’s affairs and the distribution of assets.

Before the administration begins, each Executor must decide whether they are willing and able to act. It is important to think this through carefully as it is difficult to withdraw partway through the administration.

Deciding not to act

If a joint Executor does not wish to take on the task, then they can renounce the role or alternatively request that power to be reserved to them, which means they can ask to act later if they choose. These decisions must be made before any action is taken in administering the estate.

Stepping down partway through administration

If an Executor wishes to cease acting during the administration it can be difficult to have themselves removed. There is a rule that once someone has ‘intermeddled’ in an estate, they cannot retire from the position of Executor.

For this reason, it is important to understand exactly what is required of an Executor before taking on the role. They are required to collect in and value all of the deceased’s assets, arrange for payment of any debts, calculate and pay any tax liabilities, prepare estate accounts and distribute the net estate to the beneficiaries named in the Will. There can be personal liability for failure to act correctly in the administration.

When writing a Will and choosing Executors it is important to ensure they know what the role entails and that they believe they will have the time and capacity to take on the job.

If you do not have anyone who is willing to act as your Executor, you can appoint a professional to act on behalf of your estate.

Dealing with an unresponsive Executor

When an Executor stops responding to communications partway through an administration, it can be very problematic. There is a time limit for completion of estate administration and any other Executors will be mindful of facing accusations of failing to carry out their duties, as well as the potential for penalties arising from late payment of tax and other debts. Beneficiaries will also be keen for the administration to be finalised.

It is important to try everything to attempt to re-establish contact with an unresponsive Executor and see if an agreement can be reached with them to conclude the process. Failing that, it may be necessary to apply to the court to have the Executor removed. The court will take into account the best interests of the estate and any beneficiaries when reaching a decision.

If you would like to speak to one of our expert Wills and Probate solicitors, ring us on 01243 216900 or email us at info@legalmatters.co.uk.

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Skeleton staff

Legalmatters continues to support its clients during trying times

Here at legalmatters, we continue to do everything we possibly can to service our existing and new clients during these very difficult times.

Our ability to provide remote services makes us stand out from the crowd.  This means that you can deal with your will, power of attorney, trust and tax advice etc all over the phone or by email and documents are sent to you by post.  We are also advising our clients on signature processes bearing in mind social distancing measures.

Meanwhile, the office continues to operate with minimal skeleton staff for the protection of our staff, clients and visitors, enabling us to still process physical documents for our clients.  If you do find that you need to call into the office for instance to have documents witnessed when it is otherwise difficult for you to arrange that with family and friends then do please get in touch.

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

Finding our posts interesting? Why not sign up to receive legalchatters, our regular news, views and update service straight to your mailbox. Or Follow Us on FaceBook.

Inheritance Tax

Is Inheritance Tax payable on gifts made from income?

Gifts made before someone dies may be liable for inheritance Tax (IHT) unless they are made from income or are in an exempt category.

When an estate is administered, the Executor or Administrator will have to assess gifts that have been given by the deceased during their lifetime and decide whether or not they should be included in IHT calculations.

Gifts given during the last seven years of a person’s life may be liable for IHT. There are some exceptions to this, including the giving of gifts from surplus income.

Inheritance Tax on gifts

A maximum of £3,000 can be gifted each year free of IHT and, if not used, this allowance can be carried over for a single year. Single gifts of £250 do not attract IHT when made to different people.

Money can be given to family or friends who are getting married or entering into a civil partnership, in the sum of £5,000 for children, £2,500 for grandchildren and £1,000 for anyone else.

Payments made to support children under 18 or elderly relatives are usually exempt from IHT.

Gifts given from income may be exempt from IHT where they can be shown to be normal expenditure out of income.

Other gifts given in the seven years before death will be liable for IHT on a sliding scale where the value of the estate exceeds the IHT threshold, which is currently £325,000.

Gifts given out of income

For a gift given out of income to qualify for exemption from IHT, it must be possible to prove the following, to the satisfaction of HM Revenue and Customs:

  1. The gift is normal expenditure

The giving will need to be a regular or usual event. The estate Executor or Administrator can look for a pattern of giving over several years to try and establish whether it is an habitual occurrence.

  1. The gift is given from income

An exempt gift would usually be made from cash, or possibly from life insurance or pension income. Gifts from assets are not exempt unless the gift was purchased from income specifically to be given.

  1. The giver did not need it to live

The gift needs to be given out of income that is deemed surplus to the donor’s requirements. This means that the donor must be able to subsist on their remaining income without resorting to assets.

The rules around the giving of gifts are complicated, so to ensure you make the best decisions for your loved ones and your estate it is advisable to seek expert advice.

If you would like to speak to a Wills and estate planning expert, ring us on 01243 216900 or email us at info@legalmatters.co.uk.

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contents of a will

Can anyone see the contents of a Will?

When someone dies, often loved ones would like to see the document that they have left outlining their wishes and stating who is to benefit from their estate. We look at who is entitled to see the contents of a Will.

Immediately following a death, the only people initially entitled to read the Will are those who have been appointed as executors under its terms.

If the document is held by a firm of solicitors or a bank, they will be able to let you know who the executors are and will also let you know if there is anything in the Will or in an accompanying letter regarding the deceased’s funeral wishes.

The executors are responsible for the winding-up of the estate, to include listing all of the deceased’s assets, obtaining valuations of them, selling assets, which may include property, accounting for any tax liabilities, preparing estate accounts and distributing the estate to the beneficiaries named in the Will.

They should also contact all of the beneficiaries and advise them of the date of the deceased’s death, the names of the executors and what they are to inherit.

Who is entitled to see the Will?

Small estates do not need a Grant of Probate, and in that case, the Will does not have to be shown to anyone other than the executors.

If all of the executors agree, then it is possible to show the Will to another party.

Where a Grant of Probate is needed, then once this has been issued by the Probate Registry anyone can apply for a copy of the Will.

If Probate is not required, then you can make a formal request to the executors to see the Will. If they refuse to provide a copy and you suspect that you may be named as a beneficiary, you may wish to take legal advice as to how to proceed. The executors might then be compelled to apply for a Grant of Probate, making the Will a matter of public record.

Appointing an executor

The role of executor is an important one, not just in respect of the fairly onerous tasks involved in winding-up the estate, but also in the care and consideration provided to the deceased’s beneficiaries.

You should take this into account when choosing who to appoint. Carrying out the administration can be lengthy and time-consuming and there is personal liability for dealing correctly with the estate and accurately accounting for tax and estate funds.

If you do not have anyone willing or able to take on the role, you can consider appointing a professional executor. This would usually be a solicitor who is experienced in the administration of estates and who could prepare the necessary accounts and distribute the funds to the named beneficiaries.

If you are thinking of making a Will, speak to one of our experts on 01243 216900 or email us at info@legalmatters.co.uk.

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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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