Probate

Sympathetic advice that can help you with the legal requirements and responsibilities following a death whether there is a will or not.

It's a frequently used term and like so many bits of legal jargon seems designed to confuse rather than inform. So what is probate? When a person dies, someone has to deal with their affairs (also known as "administering the estate") and the procedures and rules for doing so are subject to specific legal requirements. This entire process is called probate - the steps undertaken to verify or 'prove' that a will is legally valid and the person nominated or selected to oversee estate administration has the right to disburse the deceased person's assets and manage their affairs as per the deceased's wishes. Probate can be a lengthy process. It's not unusual for it to take up to a year, perhaps longer if things are not straightforward, because many different organisations such as banks, building societies, insurance companies and HM Revenue & Customs could be involved as well as individuals who might claim against the deceased's estate.

Probate where there is a will

If the person who has died leaves a will, it will usually name one or more executors of the will who are the people they wanted to administer their estate. Executors can include relatives or in some cases the deceased's solicitor. If you are nominated as an executor you may need to apply for a grant of probate. This is an official document which the executors need to show that they have the legal right to administer the estate. It is issued by a section of the court known as the probate registry. If executors have not been appointed, or do not want to act you may need to apply for something called letters of representation. Probate will normally be required if the person who has died left more than £5,000, had stocks or shares, owned a house or land or had certain insurance policies.

Where there isn't a will

If the person who died didn't make a will (known as dying intestate) the process is more complicated. Someone still needs to sort out their affairs, but they will be called an 'administrator' rather than an executor and will usually be a close relative of the person who has died. An application for a grant of letters of administration (a document issued by the court that allows administrators to administer the estate) will need to be made. Both executors and administrators can also be referred to as 'personal representatives'. If there is more than one personal representative they must work together to decide matters between them. Disagreements can cause expensive delays.

Responsibilities of personal representatives

Personal representatives (whether executors or administrators) have a duty to ensure that the estate is administered correctly. If there is a will, they must make sure that the wishes of the person who died are followed as set out in the will. If there is no will, they must follow the rules of intestacy. Contact us and we'll be happy to explain these in more detail.

Inheritance tax

Personal representatives are also responsible for finding out if inheritance tax is due as a result of a person's death. If it is, the personal representative has to make sure that it is paid. Whether inheritance tax needs to be paid depends on how much the property and belongings of the dead person are worth, the value of any gifts that they gave before they died and who they gave these gifts to and in some cases the value of certain trusts, pensions and insurance policies. You can find out more by looking up the HM Revenue & Customs website at www.hmrc.gov.uk or contact us at Access Legal.

Why use Access Legal?

The death of a family member or a close friend is one or the worst experiences anyone can have. Your grief will be difficult enough to cope with, but if you have the additional responsibility of dealing with all the formal legal requirements it can become an overwhelming experience. You may have enough on your plate going through the steps of registering the death and making the funeral arrangements without the added pressures of administering the estate, especially if the deceased did not leave a will. Our highly trained and sympathetic staff at Access Legal from Shoosmiths can provide you with help and guidance through these most difficult of times. If you are worried about the cost involved ask us about our fixed fee arrangement. We've got many years of experience in dealing with probate, even in the most complex of circumstances, and have prepared a factsheet on probate and the things you need to do after the loss of a loved one. Just click here for further information or contact us on our free advice helpline.