Probate, Intestacy and Estate Administration: Questions and Answers

In this section we provide short, sharp answers to some of the most commonly asked questions surrounding, probate and estate administration. This section of the website is constantly evolving so if you think we have missed a question, please feel free to ask it via the form at the bottom of this page. Alternatively, if you would like advice based on your specific circumstances please request a free probate consultation.

The term probate refers to the court supervised process of dealing with the property, possessions and liabilities a person leaves behind after death (the estate). It relates to the actual procedure of being granted legal permission to deal with a person’s estate, as an executor or administrator, as well as the steps taken to carry out the role.

Unfortunately, probate is a term that is often used generically and, although legally incorrect, can commonly refer to any situation where someone has died whether there is a will or not. Intestacy is the process to be followed when someone dies without a Will.

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Intestacy is law that is applied to the administration of the estate of a person who dies without leaving a valid will, an invalid will or, a will that only covers part of the estate. When someone dies without a will they are described as ‘dying intestate’?

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What is intestacy? 
What is probate

Where the deceased person left a will appointing an executor, they will have to apply for a grant of probate. The grant provides the legal authority for the executor to carry out their role. The application is made on a form sent to the Probate Registry.

When a person makes a will, they are able to specify a named person(s) or an institution to carry out the instructions in the will and deal with their estate following death. The executor becomes the representative of the deceased person, carrying out their wishes and dealing with their assets, liabilities and bequests in accordance with the law, current tax rules and the terms of the will. The role is the same if the executor is an organisation or named person(s).

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Once appointed, the role of the executor is to apply for a grant of probate, register the death, arrange the funeral, deal appropriately with the assets and liabilities and carry out the wishes of the deceased. In simple terms, this means gathering in the value of all property and cash owned, paying any debts or bills due and distributing the remainder following the terms of the will. The role also involves allocating inheritances to beneficiaries and preparing an inheritance tax return.

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Yes, it is possible to have up to four named executors, although one executor is all that is strictly needed. However, it is sensible to appoint at least two to allow for unexpected events or incapacity.

No, but if more than one executor is named in the will, the person applying will have to prove that they contacted the other executors before making the application. This is because if a lesser number apply this needs to be agreed unanimously between the executors. Up to four executors can be named on the application.

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There is nothing to prevent an executor from also being a beneficiary of the will and in fact it is very common. Usually, being given the responsibility of administering a person’s estate means the executor is a close relative or friend of the deceased. It wouldn’t be unusual for that class of persons to also benefit from the will.

Safeguards are provided by the legal rules in place and the duty placed on executors to act in good faith.

Finding a will may not be as simple as it first appears. A person may have made more than one will or made recent changes, so you need to make sure you have the latest version. The most sensible place to start is the last place of residence of the deceased person. Wills can be located in all manner of hiding places.  Ask family members and close friends to see if they have been made aware of where it might be. Often, a person will lodge the will at a Solicitors office or bank for safekeeping. If those steps do not locate the will specialist help will be required.

The simple answer is yes. There are two main types of challenges which can be made to contest a Will. The first category deals with examining the technical and legal aspects of drawing up a valid Will. The second category involves challenging the actual contents of a validly made Will. The reasons for challenging a will can broadly be divided into five categories; the legal validity of the will, undue influence, mental capacity, fraud or error and missing out. Whatever the reason for contenting a will it’s likely it will involve complicated legal issues and will require court proceedings.

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Can I contest a will? 

Can I challenge and Executor of a will or an Administrator? 

No. An executor appointed in a will can take steps to avoid taking up the role or there may be situations when the executor is not able to carry out their responsibilities. An executor can either renounce the appointment by completing a form to be sent with the probate application, reserve the right to apply for probate at a later time in the event another executor cannot deal with the estate or appoint an attorney to act on their behalf.

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This depends on whether the identity of the beneficiary is known or unknown. Naturally, a good place to start is with the family and friends of the deceased. There are various online search tools available to try and locate people based on clues around their last known location, connections, or employment etc. Beneficiaries may have changed their name and professional help may be needed from an heir finder. The executor has a responsibility to do everything reasonable to try and find a beneficiary and put aside their inheritance until they do.

The main responsibility for organising the funeral lies with the executor(s) named in the will. In practical terms the remaining family may assist but especially where the deceased has made specific arrangements or made clear how they want the funeral to be conducted, it is the executors role to ensure those wishes are respected.

Many people now have a funeral plan which covers the costs involved. Otherwise the cost of the funeral should come out of the estate of the deceased and is paid for by the executor. However, where a person’s assets on death do not cover the costs, family or friends may be asked to contribute. The Government runs a scheme called the Funeral Payments Fund to help those on qualifying benefits pay some of the expenses.

This term refers to the document authorising and proving the ability of a person to deal with an estate.  Where one or more executor is named in the will then it means the grant of probate applied for by one or up to four executors. Where there is no will an application can be made for a Grant of Letters of Administration. This process gives the executor or administrator the authority to carry out their role and discharge their responsibilities to gather in assets, settle debts and deal generally with the estate and the will.

Probate Law is a term for the collection of laws and rules applied to dealing with an estate after death. Probate law provides the framework of responsibilities, ensuring that the deceased assets are properly gathered in and valued, all debts owed at the time of death are settled (including any inheritance tax due), and to ensure that anything left is distributed according to the wishes of the deceased. Probate law enables the executor/administrator to act as the deceased’s formal representative. It also provides a mechanism for dealing with the interests of other parties who have claims against the estate and a legal process for resolving disputes over the will.

Executors such as family and friends of the deceased are not paid. They can claim from the estate any reasonable expenses and fees involved in carrying out their role. Professional executors such as accountants or solicitors can charge a fee for their services where this is provided for in the will as well as the expenses involved. Executors are entitled to any inheritance they have been left in the same way as other beneficiaries.

Taking up the role of executor brings with it a number of duties but also potential liabilities. Legal claims can be brought against an executor who fails to carry out their role properly or at all. An executor can be personally liable for any loss suffered to beneficiaries by a failure to properly deal with the estate. The executor has a duty to act diligently and to gather in assets and settle liabilities in a timely manner. They can be made responsible for interest payments, penalties or losses incurred by a failure to distribute the estate.

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Can I challenge and Executor of a Will or Administer of an Estate

Executor(s) have a legal duty to notify beneficiaries to a will of their entitlement. After a person dies, and as part of the probate process, their will is filed by the executor(s) with the probate court. Once filed it becomes a publicly accessible document and anyone, including potential beneficiaries, is entitled to inspect it. So a beneficiary should either be informed of the contents of the will by the executor or failing that carry out their own enquiries.

 

 

Yes. The roles of Executor or Administrator comes with a number of responsibilities and obligations.
To ensure that these are carried out properly and legally there are a number of possible challenges to the actions or inactions of the personal representatives and the decisions they make. This ensures that they can be held to account for how they deal with the deceased’s estate.

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Can I challenge the Executor of a Will or Administer of an Estate?

Probate property is the term for the assets of an individual that do not automatically pass on to others on death. It comprises cash, investments, non-jointly owned property, art, antiques and other physical possessions and assets. It is the parts that make up the estate which have to be valued and realised by the executor or administrator.

This term refers to the Probate Registry which deals with matters relating to the grant of probate or Letters of Administration. The Central Registry is located in London and there are currently 11 district probate registries serving the regions of England and Wales.

Timescales for the probate process depend on a lot of factors. There can be delays in the court process of obtaining a grant, caused either by court workloads or errors on the forms. Thereafter, much depends on the size and complexity of the estate and the number of beneficiaries. It also depends on how long it takes to realise assets particularly if there is a house to sell. The inheritance tax return has to be submitted within 6 months of death which provides an informal target date to resolve matters. However, a simple estate can be dealt with in a matter of weeks.

For a more detailed answer please visit: How long does probate take?

There are situations where probate is not needed, and this will depend on the type of assets owned and the nature of ownership. Where there is no land/property, involved probate may not be required to deal with relatively small amounts of money held in bank or building society accounts.

Even if there is land/property but this is jointly owned (as a joint tenant) and this passes automatically to the surviving co-owner(s), often between spouses or partners, then probate is not needed. Probate would be required to deal with land or property held as a tenant in common meaning that the share owned does not automatically pass on to the co-owner(s) on death.

Each bank has its own policy but most will release funds held in the deceased’s account within two weeks of being provided with the documentation they require. Many will release a sum of money prior to the grant to deal with essential expenses such as funeral costs. The executor should approach the relevant bank promptly to determine the approach they take.

The short answer is no. However, there are many situations which arise after a person’s death that mean expert legal advice is sensible. Executors may find themselves dealing with a will that is challenged, having to referee disputes between beneficiaries or deal with disagreements where there is more than one executor. They may face practical difficulties dealing with the paperwork and contacting the institutions involved. The role can be time-consuming, especially if the estate is complicated. The estate may be insolvent, the tax position may not be clear and an executor may be exposed to personal financial liability if there is a shortfall.

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UK Tax Rules require that inheritance tax is payable in certain circumstances after a person’s death. Inheritance Tax is a tax payment calculated on the value of the estate at the time of death, meaning the total value of the property, money and possessions of the deceased. The rules are complex and specialist help is crucial.

No. Estates worth less than the current threshold of £325,000.00 do not attract any inheritance tax liability. The executor still has to report the value even if it is below the tax threshold. If the deceased has an estate worth more than the threshold but leaves the remainder to their spouse, civil partner, a charity or a community amateur sports club, then no inheritance tax is payable. Beneficiaries do not normally have to pay inheritance tax on what they inherit. People who have benefited by way of gifts of cash or property from the deceased in the 7 years before death may have to pay inheritance tax too, if the value given away exceeds 325,000.00 in that time frame.

The standard rate of tax is 40% on the value of the estate above the threshold. There are a number of reliefs and exemptions available. The rules on dealing with property gifted to family are complicated and professional advice is essential to get the tax return right.

 

Inheritance Tax is paid by the executor on behalf of the estate. It is due no later than six months after the date of death. Interest and penalties can be applied if this deadline is missed. The are provisions to encourage executors to make interim payments within that timescale even when the total tax liability due is not known. This reduces the interest payable if assets take longer than that to sell.

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