5 Probate Myths Busted!
There are many common misconceptions about the probate process. Here are some popular myths busted!
Read moreWho can apply for probate?
Where the deceased person left a will, it is usually only the named executor (or executors) who can obtain a grant of probate. This will certainly be the starting point with any will, but there are some exceptions.
In some cases, a will may fail to appoint an executor, and this does not necessarily mean that the will itself is invalid. This is uncommon but, for example, if the will is home-made it might skip straight to how the estate is to be distributed without considering who should deal with the administrative process. Occasionally only one executor was named and that person has already died, is too ill or simply does not wish to act.
In circumstances such as these, the law will determine who can apply for probate instead. This could be a residuary beneficiary or a legatee of the estate, but this will depend upon the individual circumstances and you should seek professional advice to ensure that the correct person, or people, are acting. This person will be called an administrator and, rather than probate, they will apply for letters of administration with will annexed.
An executor named in a will might choose to opt out and renounce their appointment. This option is available to all executors, whether appointed solely or together with another person, but you should always seek advice as to the implications before renouncing an appointment.
It is the job of the executor to gather information about the estate, and they will need to ascertain the values of all the estate assets and determine what sums, if any, are owed by the deceased and to whom.
To find out this information, you should contact the various banks, building societies and other financial organisations and ask for valuations at the date of death. If you choose to instruct a solicitor, this is one of the steps we can assist with. We regularly liaise with such institutions and are aware of exactly what information is needed.
Once all the valuations have been ascertained, you will need to complete various forms in order to apply for probate. Firstly, it is necessary to account to HMRC in respect of inheritance tax. This is required even if no tax needs to be paid.
If tax does need to be paid, this must be paid before probate can be obtained, and you can request payment of the tax that is owed directly from the deceased person’s accounts.
After having settled the inheritance tax liability, or confirming that no inheritance tax is due, you will need to complete an application form for the probate. This is form PA1P, which is submitted to the Probate Registry. Most applications must now be submitted online.
When the grant is received from the Probate Registry, you will need to send this to the various organisations that hold estate assets, or to whom sums are owed. On receipt of the grant, the organisations will release funds to you, and you can begin to repay the deceased’s liabilities. Any funds which are released to you must be held in a separate account from your own funds.
At this stage, you should also consider placing advertisements requesting any unknown creditors or beneficiaries to come forward. Without these, you could be held personally liable for any liabilities which later come to light.
You should also consider the likelihood of any claims being made against the estate, for example from a family member who was not included in the will. If a claim is likely, it may be prudent to delay the distribution of the estate to the known beneficiaries.
Once all estate funds have been obtained, you can then begin the process of distributing these to the beneficiaries. This might include gifts of specific items, such as artwork or jewellery and gifts of specific sums of money. Otherwise, it might simply be a case of paying all the estate funds out to one sole beneficiary.
Whether you deal with the estate administration yourself or instruct a solicitor, your duties and responsibilities as executor remain the same. It is important that you comply with those duties to avoid any personal liability.
If you do not deal with the estate following the exact terms of the deceased’s will, you could find yourself subject to a claim from disadvantaged beneficiaries. If you fail to account properly for estate debts, you could find yourself personally liable for these.
It is also important that all estate funds are properly accounted for. Instead of relying on outdated or estimate valuations, you should ensure that you have obtained accurate and current valuations of all estate assets. Failing to obtain accurate valuations could result in underpaid taxes, which you would be accountable for. You must also ensure that all sums, no matter how small in value, are collected in and distributed, and you must keep estate funds separate from your own.
Many of these responsibilities are easily overlooked without ill intent, but it is important to understand the strict duties to which you must adhere, as ignorance will not be accepted as a defence to any shortcomings.
Instructing a solicitor
Our solicitors are knowledgeable about and experienced in estate administration and we can help to relieve the stress of the administration while ensuring that you comply with your duties.
Some circumstances in which it is usually sensible to instruct a solicitor to obtain letters of administration are where:
- the estate is high in value;
- the estate assets are complex, for example, if some funds are held in trusts or complicated investments;
- the family tree is complex;
- there is likely to be a claim against the estate; or
- the estate includes foreign assets, or the deceased was living outside of the UK.
Even without any of these factors, our solicitors would be happy to help you navigate the process. Instructing a professional will ensure peace of mind that the estate administration is dealt with appropriately and your duties have been adhered to.
How can we help?
If you are the executor of an estate and you are at all concerned about inheritance tax, we would be pleased to assist you, whether with one off advice or dealing with the probate process on your behalf.
