grant of probate

What Should You Do When Someone Dies?

Bereavement is a terrible time for everyone, but it is also a busy time, with many different things needing to come together in order for probate to be issued and for the deceased to have a funeral. It can be very easy to ignore or forget about all the legal and necessary things that need to be done at this time, but the longer they are left the harder everything will become. It will mean that probate will take longer, and that can be stressful and time consuming as well. It is particularly important to make things happen quickly if you – or someone else – was financially dependent on the deceased. You or they may be entitled to bereavement allowance, for example. At the very least, finances need to be sorted out to enable life to go on.

Probate can take many months to complete, depending on the complexity of the estate. The bereavement allowance can be up to £2,000, and is used to help those who were financially dependent on the deceased and who now will have a problem because of loss of or lack of finances.

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The first thing that definitely needs to be done is to register the death. This is a relatively straightforward thing to do, and when it is completed the Grant of Probate can be issued, and the will can be executed. If the deceased died at home with no medical personnel present, then a doctor will be needed to provide a medical certificate showing cause of death. This can be taken to the register office (within five days) so that you can obtain a death certificate which is needed for everything else. If the deceased died at hospital or in a care home, the medical staff will usually be able to register the death for you.

The death certificate is required to have the body cremated or buried. You may wish to purchase additional copies of the death certificate as a variety of different organisations will need to see them, and rather than waiting for each one to send the certificate back, the executor can contact many of them at once, saving a lot of time.

Next you will want to look at funeral arrangements. The deceased may have had a pre-paid funeral plan, or perhaps they left instructions in their will or spoke about what they wanted when it came to their funeral. This will obviously make things easier for those who are arranging it, but if not there is no need to worry. Think about the person that they were, and you will be able to come up with the ideal funeral for them. Speak to the executors regarding money to pay for the funeral if there was no plan in place as they may be able to organise an advance from the estate. 

Can A Personal Representative Step Down?

A personal representative for someone’s estate may be able to step down, although it will depend on a number of factors that should be taken into consideration first. The first question that needs to be asked is whether they have been appointed as an executor, or as an administrator.

If they are an executor, they can choose to step down – except in the case of two exceptions. They can do this even if they initially agree to the task, and this can happen due to a variety of reasons including ill health, another bereavement, or workload. If the executor wishes to step down, they must sign a Deed of Renunciation. This document means that the executor agrees to give up the role and any responsibilities that come with it. The deed is then filed with the Probate Registry and is made final. If the executor changes their mind and does want to take on the role after a Deed of Renunciation has been filed, a court can assess the situation. They cannot simply start carrying out the work without a court having given them permission.

Can A Representative Step Down 300x225 Can A Personal Representative Step Down?

There are two situations in which an executor is not able to step down from the role. The first is when the Grant of Probate has already been issued to the executor. If an executor no longer wishes to perform the role, then they cannot be issued with a Grant of Probate. There is the possibility that the Grant of Probate can be revoked so that the executor can step down, but this would only happen in exceptional circumstances.

The second situation in which an executor cannot step down is if they have ‘intermeddled’ in the estate. This is when the executor has begun and administrative work before the Grant of Probate has been issued.

An administrator is somewhat different to an executor. An administrator is a personal executive who is appointed by the Probate Registry if there are no executors named in a will (or they have died or stepped down), or no will at all. If they don’t want to take up the role, they don’t have to do anything – they simply don’t act. There are no forms to complete and no one to notify. 

Family disputes over wills may now incur costs

Family disputes over wills may now incur costs

With family disputes over wills on the rise, claimants should ensure that they have strong grounds for contesting a will, after one judge ruled that a failed claimant should pay costs of over £65,000.

In this groundbreaking case, millionaire Ken Jordan died, leaving his entire estate to his partner, Ms Elliott.  However, his illegitimate daughter did not agree with the contents of the will and promptly entered a caveat against the estate, thereby effectively preventing Ms Elliott from obtaining a grant of probate.  Despite this, she did not subsequently make a claim against the will, forcing Ms Elliott to eventually issue proceedings to prove the will, in 2014.

The daughter, Ms Simmons, argued that the will was in fact invalid, due to lack of capacity, knowledge and approval and undue influence.  The case eventually went to trial in December last year, where it was found that there were no grounds for suspecting that the will was not valid.  Ms Simmons had no firm evidence to support her claims, and the fact that she never actually raised a challenge to the will, meant that her argument was rejected.

In addition, Deputy Judge Murray recognised that Ms Elliott had been forced to accrue substantial legal costs and declared that the defendant should be responsible for meeting these costs, to the tune of over £65,000.

Resealing Probate in Australia

Probate isn’t easy at the best of times, but if someone dies and they owned assets in Australia then it can become even more complicated for the UK based executor. Australian assets will need to be ‘unlocked’ before they can be dealt with under UK probate, and then transferred to any beneficiaries.

Resealing Australian Probate 300x246 Resealing Probate in Australia

The executor will have many tasks to take care of, and the first one in relation to Australian assets is to apply for an Australian Grant of Probate. If this is not possible then the British Grant of Probate will need to be recognised in Australia – this latter option is known as resealing the Grant of Probate.

Having the English or Welsh Grant of Probate resealed is often a quicker and less expensive way to move forward than applying for a brand new Australian Grant of Probate.

However, if there was no will then no British Grant of Probate will be able to be applied for. Instead, the person who is dealing with the estate will need to obtain a Grant of Letters of Administration, which can also be resealed in Australia.

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The Grant of Probate is usually required in Australia, but if the value of the estate, or at least the Australian part of it, is low then it may not be necessary – it is best to contact the deceased person’s Australian bank to find out what they need. The Grant of Probate is always required if the asset is any kind of property.  

Not all solicitors are well versed enough in Australian law to be able to offer the resealing service; at IWC we are able to help. Just get in touch and we can discuss exactly what is required. 

Worried about paying inheritance tax.

Worried about inheritance tax.

It may shock you to learn that if you have been named the executor of a will, then you may well be held responsible for paying any inheritance tax (IHT) due on the deceased's estate, BEFORE you have received any money from probate.

If the deceased was a single person and their estate is valued at above £325,000, then you can expect to pay 40% of the value above this amount, if no tax reliefs are applicable.  If they were the surviving partner of a marriage, the amount, known as the nil rate band, is doubled to £650,000. This means that thousands of pounds may be required to pay off the inheritance tax debt, before you receive a penny from the proceeds of the estate.

It may be that there are enough cash savings held within the estate to pay off this debt, in which case HMRC might allow you to make a direct payment to them, straight from the deceased's savings account(s).  However, if there is not enough cash available, it will be up to you to make up the shortfall.  Although you will be able to recoup the money when probate has been granted, you must find a way to pay the debt up front.  You might choose to borrow the money from within the family or borrow it from the bank.  Banks are very familiar with this scenario and, as they know the loan will be settled relatively quickly, they are often amenable.

A slightly better scenario arises when the bulk of the estate is made up of property.  In this instance, HMRC will normally allow probate to be granted and the inheritance tax debt to be paid in installments over a maximum period of ten years.  Be careful though – this extended term brings with it additional interest to be paid on the outstanding balance.

In some cases, the estate may be held principally in the form of shares.  Technically, probate must still be granted and the inheritance tax debt paid before any shares can be sold.  However, HMRC often offers some flexibility here and you may be able to discuss the possibility of HMRC waiting until the shares have been sold, in order for you to pay the IHT bill, so long as it is considered a priority when allocating proceeds from the estate.

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What bills need to be paid during probate?

What bills need to be paid during probate?

When a person dies, their debts unfortunately do not magically disappear.  Although that person may sadly no longer be with us, their outstanding credit card balance, mortgage, water, Council Tax, power and telephone bills are likely too be very much still in existence and need to be paid.

If the deceased was married and leaves behind a spouse, then that wife or husband will automatically become solely responsible for continuing to make payments on joint debts.  Even if they weren't married but co-habiting, the surviving partner may still be responsible for payment of bills incurred, which are connected to the home, such as mortgage and utilities.

Should there be no surviving partner, the onus is on the executor to make sure that probate follows the strictly outlined process and that all unpaid bills and taxes are paid before the remainder of the estate is distributed among the beneficiaries.

One of the first steps when someone has died, is to locate and notify all outstanding creditors.  This tells them that there is likely to be a valid reason for a delay in the settling of the balance, if there is no other named person connected with the debt; and should prevent any further recovery action from taking place.

Executors should then have all assets valued including property, shares and savings, to arrive at a total valuation figure for the estate.  This total will indicate whether inheritance tax (IHT) will be applied, with the current nil rate band fixed at £325,000.

Once inheritance tax has been paid, executors will then be able to apply for Grant of Probate and should be prepared to wait between six and twelve weeks for the application to be approved.  It is only when this approval has been granted, that money from the deceased's bank accounts, along with other assets including property, savings and shares, may be accessed and used initially to pay any outstanding bills.  It is also worth inquiring as to whether the deceased had taken out any life assurance or PPI to cover their debts.

If there is enough money in the estate to cover all outstanding debts, they may be paid off in any order at all, although it would be sensible to focus first on paying off those debts which are still accumulating interest.

If there is not enough money however, there are strict guidelines as to the order in which the debts are settled as follows:

Secured loans (ie mortgage)

Funeral expenses

Executor's expenses

Unsecured creditors (credit cards, utility bills)

Interest on secured loans

Informal loans

Ignoring this set payment procedure could well result in the executor being held personally liable.

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How to register a death when Lasting Power of Attorney was granted

How to register a death when Lasting Power of Attorney was granted

I was asked recently, whether registering a death when Lasting Power of Attorney was in place was a different legal process than usual.

In a nutshell, there is no difference.  A Lasting Power of Attorney is granted when the individual is still living and is often given to an individual who is capable of taking over their financial and sometimes health issues on a daily basis.  It makes sense therefore in most instances, for that individual to also act as executor of the person's will.

When the person in question dies, the executor – regardless of whether or not an LPA was in place, must apply for a Grant of Probate.  This then enables the executor to gain access to funds, in order to start arranging to settle the deceased's debts and distribute their assets accordingly.  Financial institutions will not communicate with an executor if this document is not provided.

The process of registering a death can be quite confusing, but there is an easy way to remember the key difference between the two documents.  A Lasting Power of Attorney will help an individual whilst they are still alive but become incapable of taking care of their own affairs.  A Grant of Probate is then given after their death.

Probate in Australia for ex-pats

Probate in Australia for ex-pats

Ex-pats who have emigrated to Australia should make themselves aware of what needs to be done when applying for probate in Australia – and pass that information on to their loved ones whilst they are still alive.

The process can become complicated whereby the individual has assets remaining in the UK as well as Australia and so the advice of a probate practitioner should be sought.  However, if no assets remain in the UK, then the process is often much simpler and can be brought to a conclusion within a few weeks.

Most often, probate will include the need to reseal an English Grant of Probate in Australia.  For this to take place, the value of the deceased's assets within Australia will need to be valued and submitted along with an original copy of the English Grant of Probate or Letter of Administration, a copy of the original death certificate and ID for the executors of the estate.

When it comes to applying for probate in a different country, it is always advisable to seek the help of an experienced international probate specialist, who can instruct you each step of the way and make the whole process a little easier and less stressful for you during what is undeniably an upsetting and emotional time.

IWC Ltd has a number of international probate experts who can advise you on each aspect of the probate process in any individual country.  Call us today on 0800 612 6105 or 020 8150 2010.

The benefits of putting property into a trust

The benefits of putting property into a trust

There are many benefits associated with putting property into a trust whilst you're still alive – particularly if you have dependants.

One of the main problems of the probate process of course, is the length of time it takes to secure, which usually increases depending on the complexity of the estate.  On average, it can take several months to obtain a grant of probate, during which time all of your assets are frozen and cannot be used by the executors to pay off debts or funeral expenses.  By placing your property into trust now, this then avoids the need to obtain a grant of probate for it, at a later date.

There are two main types of trusts associated with property – a fixed interest trust means that you are the only beneficiary of the asset during your lifetime and that it is automatically passed to your next of kin in the event of your death.  A discretionary trust on the other hand, means that the trustees have complete control over how to distribute the trust's capital.  Remember that in effect however, you are essentially then handing over the ownership of the property to them, whilst you're still alive.  Bear in mind too, that you may incur tax charges during the lifetime of the trust – typically every ten years.

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