Probate and Estate Administration
Frequently asked questions
How do I know if the person who has died made a Will?
Some people choose to store their Wills at home, with their own personal papers. In particular, try looking in the same place as where the birth certificates and marriage certificates are kept or with the house deeds. It is always a good idea to make enquiries with local solicitors, Will Writing companies and also with the bank, you can also carry out a search to ascertain the location of the latest Will.
Often a person will make numerous Wills during their lifetime, due to changes in their own circumstances or those of their family. It is therefore often the case that more than one Will exists when the time comes. This can obviously lead to difficulties as the terms of the Wills may be very different. It is the Executor’s responsibility to ensure that they are in receipt of the last Will and that the estate is administered based on those final wishes. If it transpires later on, that a later Will is in existence then the Executors may find themselves liable for any mistakes that have been made due to carrying out the wishes in the earlier Will.
For a Will to be valid it needs to have been signed and witnessed in a particular way in order to comply with the law. The Will should be in writing, signed and dated by the person who has died and witnessed by two independent witnesses, who must not be benefitting from the Will.
What if there isn't a Will?
When someone has died without leaving a valid Will, then they are said to have died "intestate".
The assets will need to be distributed to the appropriate people in accordance with the law, these are usually the closest relatives and the belongings are distributed in a set order. The person(s) responsible for dealing with the assets and finalising the affairs will be known as the administrator.
Please note, intestacy can also arise from a Will being invalid or being revoked (cancelled) prior to the date of death, or because there are no beneficiaries named in the Will or they have died before the person who has died, the latter is what is referred to as a “partial intestacy”.
“Common Law Partners / Cohabitees” - if your partner has died without making a Will then you are not automatically entitled to inherit from the estate. You may be entitled to make a claim for reasonable provision under Inheritance (Provision for Family and Dependants) Act 1975. You should always seek legal advice in these circumstances. Stepchildren also miss out from inheriting under the rules of intestacy,
What is a Personal Representative?
This is the collective term used to describe the Executor (appointed in a Will) or the Administrators in the absence of a Will.
What does the Personal Representative have to do?
There are a number of legal and financial requirements that need to be completed when a person dies, this whole process is referred to as "Administering the Estate" or "Estate Administration". The Personal Representative is responsible for the administration of the estate and will find themselves having to manage a wide range of legal, financial and administrative tasks, these may include things such as:
- valuing all of the assets and debts as at the time of death,
- applying to the Probate Court for your official authorisation to act,
- selling properties and investments,
- settling loans, mortgages or other debts
- dealing with tax and completing tax forms, such as Income Tax, Inheritance Tax and Capital Gains Tax
- providing Estate Accounts to the beneficiaries and the Probate Court, if required
- paying out the estate to the correct people.
This can be a complex and onerous task for an individual and so before a person begins the process, they need to be clear in their mind that they want to take on this responsibility.
It is important to realise that a Personal Representative is not obliged to act and can renounce their appointment (step down). Although, once they renounce they have no say or control over what happens to the estate of the person who dies.
What is Probate?
A Grant of Representation is a court order and the official authority to deal with the estate of the person who has died. The grant is issued by the Probate Registry which is part of the High Court.
There are different types of grants and the most common are:
- Grant of Probate - This is the court order issued to the executors under a Will.
- Grant of Letters of Administration - This is the court order issued to the administrators where the person died without a valid Will.
- Grant of Letters of Administration with Will annexed - This is the court order issued to the administrators where there is a valid Will, however, there are no executors appointed or they are unable or unwilling to act.
You may hear this being referred to as “Probate”.
Following the death, many of the assets will be frozen and the asset holders will only release the assets to the executors or administrators once they are happy they have the authority to act. The Grant of Representation evidences this authority.
Is Probate always needed?
The large majority of Estates in England and Wales will require Probate, however, there are a couple of exceptions such as small estates, i.e. a low value estate and joint estates i.e. where assets are held jointly and the other owner has survived.
What happens if I get something wrong?
If the person who has died left a Will, then you have to make sure that their wishes are carried out correctly as far as possible. If they died without a Will, then you must adhere to the strict rules outlined in law, known as the Intestacy Rules. As a Personal Representative, you are duty bound, not only to the beneficiaries but also to the court and any creditors. You are obligated to achieve the maximum possible value from the estate for the beneficiaries and to act in their best interest at all times. You must keep the estate administration completely separate from your own affairs. If you get something wrong, even unintentionally then you could be held personally liable and you may have to put things right out of your own pocket.
You can be afforded some protection, such as by placing Statutory Notices in the Gazette and the local paper. You should also open a Bank Account as soon as possible to manage the money in the estate and to make sure that this is kept completely separate from your own.
How long does it take?
People generally underestimate the time it takes to administer the estate. You will hear people saying 4 - 6 weeks but in reality, this would only be to get you in a position to apply for the grant. The whole process can take between 40 – 60 hours to complete and this time could span over 9 months to a year, and sometimes longer. Bear in mind, every case is different and delays can arise through no fault of your own.
Do I have to use a solicitor or other legal professional?
The short answer is no, in fact around half of the population deal with the process themselves and without using a professional. However, it is important to understand what is expected of you when dealing with the affairs on someone who has died. There are many legal, financial and practical obligations and so it is important to ask yourself before you begin the process whether you feel you would be able to cope or whether you would find more comfort in a professional managing everything for you and on your behalf.