Frequently Asked Questions about Intestacy, Probate and Administering an Estate:
1. What is Probate?
A certificate from The Probate Registry (a Court Office) confirming that a Will is Valid. If there is no Will the certificate is called a Grant of Letters of Administration.
2. Do I need Probate?
Not always, but usually you will if there is an asset (e.g. a bank account) worth more than £25, 000 (this limit may vary depending on what the asset is and where it is) held in the sole name of the person who has died.
3. Why do I need Probate?
It is the legal proof that you are the person entitled legally to deal with the estate. Financial institutions who hold money, assets or investments belonging to the person who has died will rely on this proof when they release the money, or transfer the assets.
4. How do I get Probate?
An application is made to the Probate Registry. The application will include tax forms and a statement of truth. Assets and liabilities will need to be valued and we can help you with the whole process or just part of it as you wish. Applications are now usually submitted online in straightforward cases. The application process varies depending upon what is in the estate, whether inheritance tax is payable and the identity of the benefciary. Usually to advise you about the necessary steps we will need to know full details of what is included in the estate (the assets and liabilities), the terms of the Will and information about the benefciaries. Historic matters, for example life-time gifts made by the person who has died will also be required. There are many potential variables so we need full information disclosure before we can advise you.
5. How much will Probate Cost?
There is a Probate Registry fee that starts at £155 (when you apply using a Solicitor). If we help the legal charges will depend upon what the estate involves. You will be given an estimate at the outset (often we can offer a fixed fee) before we start work. We want you to be happy and to recommend us to other people. We have a page dedicated to explaining legal fees. Initial consulations (emails, telelphone calls, online or face-to-face meetings) of up to one hour are usually free of charge. We can only accurately estimate legal fees when we understand what the estate involves.
6. How long will everything take?
It depends upon what the estate involves. Sometimes a Grant of Probate can be obtained very quickly and most estates are completed well within a year of someone’s death. The sale of a property can sometimes delay things if a buyer cannot be found and taxes can sometimes complicate things. When we help we will always give you a time estimate at the outset.
7. What if there is no Will?
The statutory Intestacy Rules apply to determine how the estate is distributed. The procedure is quite similar to ‘Probate’. We have a page about ‘when a relative dies without a Will’ which gives more information.
8. Do I need to use a Solicitor?
We can help you with every aspect of administering an estate but you do not have to instruct a Solicitor if you think that you can do everything yourself. Remember that Executors/ Administrators (if there is no Will) have onerous legal responsibilities and potential liabilities. Solicitors can sometimes suggest ways to reduce Inheritance Tax, protect and safeguard assets going forward, minimise risks and we are insured against potential problems.
9. Will there be Inheritance Tax or ‘Death Duties’?
Yes if an individual’s estate, after the deduction of liabilities is worth more than £325 000 and is not left to ‘exempt’ beneficiaries such as a spouse or charity. If the person who has died is the surviving spouse and they inherited everything when the first spouse died, Inheritance Tax will likely be paid if their net estate is worth more than £650 000 and is not left to an ‘exempt’ beneficairy. Some assets and some beneficiaries are exempt from Inheritance Tax. Sometimes an estate can be rearranged to save Inheritance Tax. ‘Residence Nil-Rate Band’ will increase the amount that can be left tax free in many cases where there is a residence interest that is left to direct descendants. It is important not to jeopordise the tax relief, the rules are complicated and it is easy to inadvertently lose the extra Inheritance Tax saving. We can help in cases where tax is payable.
10. What does the Executor do?
The Executor must administer the estate properly and legally, in accordance with the terms of the Will or the Intestacy Rules. You may need to:-
- Register the death
- Arrange the funeral
- Get the assets and liabilities valued
- Advertise for possible creditors
- Fill in tax forms and pay Inheritance Tax
- Apply for the Grant of Probate or get a Grant of Letters of Administration.
- Contact all the beneficiaries
- Gather in/ sell the assets
- Pay the liabilities
- Finalise Income Tax affairs
- Consider possible claims against the estate
- Produce accounts and tax certificates for beneficiaries
- Distribute the estate
- Set up trusts if the Will creates them or they arise under the Intestacy Rules
- We can help with all or just part of the work involved.
11. I am an Executor, can I be paid?
You can only recover your out of pocket expenses and only professional Executors can be paid for their time. Professional Executors are legally required to give information about their costs to the beneficiaries at the outset. Professional Executors must be insured.
12. What is ‘Swearing an Oath’?
It is less common now to be asked to swear an oath as usually you can sign a statement of truth (and often this is done electronically) to confirm all the relevant facts. You may however be asked to swear an oath or affidavit. You can swear an oath prepared by the Probate Registry or another solicitor at our office. When you ‘swear’ the document you will confirm that it is true and correct. You should read and understand the documents before the appointment so that you are able to ‘swear’ (we say the words and you repeat them) that everything is correct. Please telephone or email first to arrange a short appointment to sign and swear documents. The procedure is straightforward and normally costs £5 per person and £2 per document. Payment is made in cash only. Traditionally you ‘swear’ the truth of the documents on the Bible but you can ask to affirm the documents if you prefer. Sometimes if you don’t need probate a bank may ask you to sign forms in front of a solicitor to close an account. These forms are often called ‘statutory declarations’. We can witness these forms and the fee is the same as swearing a document. If the bank gives you one of these forms but you know you need to get probate for something else e.g. to sell a house or transfer a larger investment, then normally you cannot sign the statutory declaration and get the money without probate. If you need advice about what to do please contact us.