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Talking it through..

Step 1: Talking it Through

Wills and Probate

Upon the death of a person, an estate is left for inheritance. The estate usually consists of money, possessions and/or property of the deceased.

In order to obtain the legal right to access and administer the estate, a personal representative (‘PR’) of the deceased person needs to apply to the Probate Service for a ‘grant of representation’. The Probate Service is part of HM Courts and Tribunals and administers the system of probate in England and Wales.

A grant of representation determines who can legally collect money and assets from the organisations (the banks, building societies, insurance companies) that hold the deceased’s possessions.

The grant of representation can take the form of (1) probate, (2) letter of administration with will, or (3) letter of administration.

(1) Probate: When a personal representative has been named in the deceased’s will, the PR will be appointed as the executor of the estate by the Probate Service.

(2) Letter of administration with will: This is an official document issued by the court when a will exists, but no executor has been named in the will or the executor is not able or willing to assume such a role (and thus, renounces his right to apply for the grant of representation).

(3) Letter of administration: This is an official document issued by the court when the deceased left no will or the will is invalid. The personal representative of the estate will be called an administrator (not an executor).

 

Requirements for obtaining probate:

A person can apply for probate if he/she is:

Over the age of 18, and either:

a. named in the will (executor)

b. named in the will to receive some or all of the estate (if there is no named executor or the executor is unable or unwilling to act), or

c. a next-of-kin of the deceased and the deceased left no will, taken in the following order of priority:

  1. lawful husband or wife or civil partner (note that co-habiting partners are not considered to be in a marriage or civil partnership and therefore cannot apply for a grant)

  2. sons or daughters of the deceased, including adopted children but not step-children

  3. parents

  4. brothers or sisters

  5. grandparents

  6. uncles or aunts

  7. the children of the above, if they have all died before the deceased.

 

Application for probate:

The application for the grant is generally not a complex procedure. The applicant must file Probate Application Form PA1 1 alongside supporting documents and swear an oath to confirm the information provided in the application2 . The application must be filed with the local Probate Registry3 .

The fee for applying for probate or letters of administration depends on the value of the estate. For an estate valued at less than GBP 5000, there is no fee. For an estate valued at more than GBP 5000, the fee is GBP 2154 .

In addition, a tax form needs to be completed whether or not inheritance tax is owed. Use form IHT2055 if no inheritance tax is owed and form IHT400 if the estate is subject to inheritance tax. For further assistance and information, the Probate and Inheritance Tax Helpline can be contacted on 0300 123 1072.

 

Timescale:

Dealing with the administration of the estate of a deceased can take a long time. It is not uncommon for it to last one year or longer if the financial affairs of the deceased are not in order. Many organisations may be involved in the process, such as banks, building societies, insurance companies and HM Revenue & Customs.

In addition, the process is delayed because the estate cannot be distributed until all claims to it have been received. Individuals who believe that they have an entitlement to the estate (i.e. who are potential beneficiaries of the inheritance) have 6 months from the date when probate was granted to make claims against the estate.

 

Role as executor or administrator:

Once an executor/administrator of the estate has been appointed, he/she will have the obligation to:

  • collect the estate from all persons and organisations holding the deceased person’s assets;

  • pay debts associated with the estate and funeral expenses;

  • distribute the estate to the beneficiaries, ie to the persons legally entitled to it (in accordance with the deceased’s wishes expressed in the will or in accordance with the laws of intestacy6 if there was no will), and

  • keep the receipts and a record of their actions.

When a grant is not needed:

Note that a grant of representation may not be needed in the following cases:

  • In Joint Tenancy: Property is held in joint names and, after the death of one joint tenant, it passes by survivorship to the remaining joint tenant(s);

  • Joint bank account or building society account held in joint names: here, a bank would only require proof of the death certificate of one of the joint owners in order to transfer the money to the surviving joint owner(s);

  • The amount held in the deceased’s account is small, less than GBP 5000 in total (In such cases, however, one has to verify with the organisation holding the money whether a release of the money without a grant will be approved).

  • The estate includes only cash (bank notes and coins) and personal possessions, such as a car, furniture or jewelry

  • The estate is insolvent (i.e. there is not enough money to pay the debts, taxes and expenses)

  • There are certain life insurance policies and pension benefits in the estate.

By contrast, a grant must be obtained for the sale or transfer of property that is held in the deceased’s sole name or is shared as a tenant in common.

 

Changing a will after a death:

A person’s will can be changed even after death if the beneficiaries left worse off by the changes agree. Changes to the will are made through a ‘variation’, a letter at most, which does not need to be in a formal document but needs to comply with certain legal requirements7 . The limitation period for requesting changes is 2 years from the date of the death.

Generally, a will can be changed in order to:

  • provide for a person who has been left out of the will (for any reason);

  • reduce the amount of inheritance tax or capital gains tax payable;

  • move the deceased’s assets into a trust; or

  • clarify ambiguities in the will.

In the event that the case is not resolved amicably and enters formal court proceedings, the Court will also have power to amend a will according to Section 20 of the Administration of Justice Act 1982. Moreover, Section 21 allows the Court to hear evidence of the will-maker’s intention in order to resolve any uncertainties regarding the execution and drafting of the will.

 

Non-Contentious Probate Disputes

 

1. Entering a ‘caveat’ or stopping a grant of representation:

A caveat allows a person to prevent the issuance of a grant of representation and the process of probate from progressing. This device is usually employed by a person wishing to contest the existence or validity of a will or the eligibility of a person to receive the grant of representation. The caveat usually stays in force for 6 months but can be extended for an additional 6 months period upon paying a further fee.

Entering a caveat is simple and relatively informal and does not require the caveator (i.e. the person who has entered the caveat) to identify their interest. The caveat is entered by making an application to the Probate Registry, paying a GBP 20 fee and signing form PA8 (8) .

It should be noted that since the purpose of the caveat is to stop the probate procedure, the caveat should not be used in claims made under the Inheritance (Provision for Family and Dependants) Act 1975. The appropriate procedure will be to enter a ‘standing search’, which states when the grant is issued and the 6 months period commences. Further details regarding the Inheritance Act type of claim will be discussed under section ‘Issuing Proceedings’.

2. Warnings and appearances:

A person who has been challenged by means of a caveat has to take immediate action in order to remove the caveat and reinstate the normal course of the probate procedure. The response is to issue a ‘warning’ with the Probate Registry9 .

This warning will give the caveator (i.e. the initial challenger) only 8 days to respond:

If the caveator does not respond within this timeframe, the person who issued the warning can then file a statement with the Probate Registry to remove the caveat and continue the probate activity. By contrast, if the caveator acts upon the warning within the 8 days period, he will do so by entering an ‘appearance’ before the person who issued the warning. The appearance will allow the caveat to remain in effect until the inheritance dispute is determined.

For further general information about wills and probate, please see some additional useful links: