When someone dies, unless family were told beforehand, or it is easy to find in the house, it can sometimes be difficult to know whether someone even had a will, let alone where it might be.
The problem is that there isn’t a central database of all the wills made in the UK. There is the Central Probate Registry, but it is not compulsory to enter the details of your will there, and not many people do. This might be because very few people are actually aware that it exists.
If you want to know about someone’s will for any reason, the first person to ask should be the one who has organised the funeral. They should at least be able to determine whether there is a will or not, which will aid you in your search. If there is a will, they may even be able to tell you what it consists of, but they are under no legal obligation to do this.
Once probate has been issued, the will itself becomes public. Once this is the case, you can apply to the probate registry to obtain a copy of the will. If you are unsure when probate is due to be given, you can register through a standing search at the probate registry. One registered, the search (which is set up in the person’s name, their address, and their date of death) lasts for 6 months. If probate has not been issued in that time, you will need to set up another search.
In some states in America (Alaska, Ohio, Arkansas, and North Dakota) it is possible to request ‘living probate’ to be carried out. It isn’t something that many people think about doing, and it isn’t absolutely necessary in most cases, but when it is done it ensures that the will is valid and correct before the testator dies.
The testator will be able to prove that they are in sound mind and body, and wrote the will by themselves, without any outside influences. This is useful if they believe there might be those who would choose to challenge the will after they die. By proving that the will was written exactly as the testator wanted it to be, there is then little chance that any kind of challenge can be made.
This is, however, an expensive option, and one that is not needed in the majority of cases. If there is a chance that someone will contest the will, and if doing so would create a lot of problems for many people, or hold time sensitive funds up for too long, then it could be something that some people would consider doing. And it’s not just about money either – contesting or challenging a will can cause huge family feuds and upsets. It could be that the testator wishes to avoid anything like that, and so organises a pre-death (or antemortem) probate review.
If you were to go down this route and then change your mind regarding who should benefit after you die, it is possible to change your will, or revoke it entirely. However, there will be a validated version on file, and therefore you must go to court in order to have that will destroyed to avoid any confusion. And, if you wish to go through the antemortem probate procedure for your second or subsequent wills, you would need to pay.
An executor is always expected to act reasonably when it comes to dealing with someone’s will and estate. They must act in the best interests of the estate, and the beneficiaries named in the will. This involves a number of things including getting the best possible price for any property or assets that are sold. It also means that they should ensure that the death is registered correctly. If this is not done, there could be serious implications that affect many people, and their inheritances.
The estate must be calculated correctly as well. This is to make sure that, if any inheritance tax is due, it is paid on time, and at the correct figure. This needs to be done before any of the money and assets are distributed.
The death should also be ‘advertised’, for example it could be announced in a national newspaper. This is so that anyone who is not mentioned in the will but who is owed money by the estate can contact the executor to arrange for payment. These debts must be paid off before any beneficiaries can inherit. If this is not done, and someone makes a claim after the money has been distributed, the executor may be liable for the debt.
If someone disputes the will (ie, if they question whether the will is valid, or if they have evidence that there is a newer will, for example) then there could be further claims. Being executor is an important job with huge responsibility, and it is always worth getting independent legal advice if you take the job on, to prepare you.
Applying for probate can be a complicated process, particularly if you have never had to do it before. If you don’t seek expert advice, there are some common mistakes that are often made. These mistakes can cause probate to take much longer than it needs to, making it more costly, and more stressful.
The first mistake that often occurs is that people apply for probate in the wrong country. The only place to apply for probate is in the country where the person was living before they died. Many people applying for probate apply in the country where the person was when they died, rather than their country of residence. This is not always the same place, and if you are unsure it is best to check.
The forms required can also be confusing and lead to mistakes. The forms can be found online, but although they are easy to find, they are not always that easy to fill in. Every part of the form needs to be completed, and that might require some research because all the names of the person need to be entered. Those names much match the ones on the will. This might relate to middle names, or perhaps maiden names. All the information much be correct and the same on all the forms.
Estate fees are the last area where big errors can be made. There is a special formula that needs to be used to calculate the fees and taxes due. Mistakes here can mean big problems further on, which is why hiring an expert to help at this point can save you a lot of trouble in the long term.
Sometimes organising a probate trust can be the perfect way to keep your estate simple, to avoid any protracted probate delays, and even to enable everyone to stop worrying about inheritance tax implications. A trust is a great way to give grieving families a bit of time and space to get things organised without too many – if any – complications getting in the way. It is often much more manageable this way.
There are a number of different types of trust. One of these is known as the discretionary probate trust.
A discretionary probate trust is perhaps not as simple as other trusts, but it does still allow for an easier transition that some other options. It offers a degree of flexibility after the policyholder passes away because it is the trustees who are given the discretion (hence the name) to choose who to pay from a beneficiary list. No inheritance tax will be due on this kind of inheritance because it is classed as a chargeable lifetime transfer.
However, be careful. There are some actions which can still lead to a large tax bill. For example, any gifts made within seven years of your death will be taken into account. There are many other potential pitfalls as well, and so it is always a good idea to speak to a professional about how you can bypass as many issues as possible.
There are thousands of empty homes in the UK, and, according to recent research, around 90 percent of those homes are empty due to poorly managed or complicated probate. This has held the process up, meaning that although the previous owner of the property is now deceased, it cannot be sold until probate is completed. It is therefore left empty, and at the mercy of thieves and squatters. This in turn reduces the potential value of the house or flat, and causes my possible issues regarding the estate.
The main reason for homes being empty is that those dealing with the will of the deceased – the executors – have no understanding of the probate process. And why should they? Being an executor is not something that people are called upon to do every day. It is extremely important that, if you are an executor for someone’s estate, you ask for expert advice.
Another problem is that the home owner dies intestate – that is, without a will. With no final direction from the deceased, it can be difficult to arrange probate in a sufficiently quick time.
And what if beneficiaries can’t be found? This holds up proceedings as well. As can missing paperwork and family disputes around what should or should not happen.
It’s not just legal or tangible problems either. Sometimes an emotional attachment to a property can mean that it isn’t sold as quickly as it should be. Although completely understandable, and although of course emotions will come into the events that need to happen after someone dies, it is still important to think logically, and sell the home in a timely manner – even if it is a well-loved childhood home.
The answer to the question about whether or not you would still owe money on your mortgage if you were to die is a personal one, but one that should be considered. If the answer is that your mortgage isn’t just about to be paid off, then you may have to assume that there will be money left to pay – because, as uncomfortable as it may be to think about, anyone could die at any time. And a mortgage is most likely the biggest debt you’ll ever have – amounting to hundreds of thousands of pounds. It can feel quite overwhelming when you think about it.
So what would happen to your outstanding mortgage if you were to die before it was paid in full?
The answer lies firstly in whether it is a joint or single mortgage. If it is a joint mortgage, then whoever is named along with the deceased on the deeds and mortgage details is the person who will be responsible for paying the balance of the mortgage. They won’t have to do this all at once (unless they choose to), but instead can take over the monthly repayments and continue to pay the mortgage as usual. Of course, if that person has no income, or cannot make the repayments on a single income now that their partner or spouse has died, it can prove problematic. This is why having adequate life insurance which would cover the balance of your mortgage is so important.
If the mortgage was only in the name of the deceased, then the terms will most likely say that the balance must be repaid upon that person’s death. Most estates aren’t rich enough to cover that mortgage repayment, and this is why the house will, in this situation, need to be sold. Any profit made from the house sale can be put back into the deceased’s estate. If there is a shortfall most mortgage lenders will close down the account with whatever can be made from the house – although this is not always the case and should be checked out before assumptions are made.