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When a person dies, control over their estate, which comprises all their assets and property not accounted for by a valid existing Will, will vest in either an executor where a Will exists, or administrator where no Will exists or the Will is found to be invalid. There are certain affairs that either position holder will have to act quickly to handle.

Appointment of an executor or administrator

Where a person dies having left a Will, they will appoint an executor to handle their affairs. In most cases this will be a family member. If no Will has been left, or the Will is invalid, an administrator, usually a next of kin, will handle the deceased’s estate.

What to do first

Certain affairs have to be handled almost immediately. These include informing government bodies such as HMRC and the Department of Work and Pensions that the person has died.

Consult a Wills and Probate Solicitor

If a nominated executor or an administrator anticipate complexities in handling the estate, or the validity of the Will is likely to be contested, it is always advisable to consult a Wills and Probate Lawyer.

Applying for Probate

In most cases it is illegal to just hand out parts of a deceased's estate or assets to beneficiaries without applying for probate. This judicially-recognised measure allows an executor to handle the deceased’s bank accounts and real property.

A person who is named as executor will apply to a court to be granted probate. An administrator in intestacy will also apply to court, but in this instance, they will be seeking Letters of Administration. A standard fee of £215 for estates over £5,000 applies. If a Probate Solicitor is used, this fee is reduced to £155. After application, the person seeking probate will be called to interview at the probate registry. The application must take an inventory and documentation pertaining to all assets belonging to the deceased.

Once granted, the executor or administrator can proceed to distribute assets. Before distribution, any inheritance tax found to be due must be paid to HMRC.

Contact our Wills and Probate Solicitors London

Our solicitors have extensive experience in handling matters relating to trusts, HMRC and tax implications, Power of Attorney and business advice. Our client base is not only domestic, but international, meaning we are well placed to advise on situations where a deceased either had assets overseas or their primary domicile was not in the UK.

We offer a tailored approach that explores and addresses the personal circumstances of our clients. Contact our Wills and Probate Lawyers today on 020 3811 6792 or complete our online enquiry form.

What a person dies, all property and assets to which they own, including property held jointly, will form part of their estate for distribution. This can form a daunting task of locating and valuing assets. Depending on the type of property or asset, the rules for distribution can differ.

Generally speaking, all assets not accounted for in the Will left behind after tax liabilities and debts are settled are included in the estate for distribution, unless the Will is contested. Exceptions exist where a living trust has been established.

Debts, liabilities and expenses

The debts, liabilities and expenses that must be accounted for prior to distribution include loans, credit card bills and mortgages. Reasonable funeral expenses can also be deducted from the estate.

Real property

Any property owned outright by the deceased will form part of the estate, unless directed towards a specific named beneficiary.

Joint tenancies and tenancies in common

Where the deceased owned property as part of a joint tenancy, ownership will pass by default to the surviving joint owner. Where the interest is a tenancy in common, involving two or more persons, the deceased’s Will determines to whom the share is passed. If no Will exists, the rules of intestacy determine where the share vests.

Bank accounts

Bank accounts held jointly will pass to the surviving joint owner, regardless of what the Will says or the default rules on intestacy.

Life insurance policies

Life insurance policies with a named beneficiary will not form part of the estate.

Living trusts

Property that is placed in a living trust for beneficiaries is shielded from being included in the estate. Instead, it will vest in the named beneficiaries in the trust deed. Living trusts can be revocable or irrevocable in nature. If a testator or testatrix anticipates transferring assets from the living trust into their estate, or vice versa, it is preferable to use a revocable trust.

Contact our Wills and Probate Solicitors London

Our solicitors have extensive experience in handling matters relating to trusts, HMRC and tax implications, Power of Attorney and business advice. Our client base is not only domestic, but international, meaning we are well placed to advise on situations where a deceased either had assets overseas or their primary domicile was not in the UK.

We offer a tailored approach that explores and addresses the personal circumstances of our clients. Contact our Wills and Probate Lawyers today on 020 3811 6792 or complete our online enquiry form.

The issue of who handles settlement of debt and distribution of assets where no instruction is left by the deceased can cause tension between family members. Ordinarily, the deceased’s next of kin will be left to handle the estate as administrator in intestate, however, they may not always be willing or able to properly take on this task.

Commencing probate in intestacy

In order to commence probate, the administrator in intestacy will have to apply to court to be granted Letters of Administration. This permits the administrator to gain control of the deceased’s assets, including bank accounts.

Contesting appointment of executor in intestacy prior to grant of probate

There are three primary methods of having an alternative executor appointed prior to grant of probate: (1) citation; (2) renunciation; and (3) passing over. The first two options are non-contentious and involve consent of the current executor. The latter involves a court order compelling a replacement.

  • Citation is where the current executor delegates responsibility regarding administration to third parties, including obtaining the grant of probate.
  • Renunciation is where the current executor renounces the appointed role. The only formal requirement is that the renunciation is done in writing.
  • Passing over if the character of the executor is questionable, their appointment can be disputed through application to the relevant District Judge or Registrar.

Contesting appointment of executor in intestacy after grant of probate

After grant of probate, an interested party can apply to court for a Section 50 order removing the executor, or, in the alternative, seek appointment of a Judicial Trustee to take offer handling of the estate. The latter option entails considerable expense.

Rules on distribution

There are statutory rules on the order that assets are distributed, a full account of which are beyond the scope of this note. In short, however, if there is a spouse or civil partner and no children, everything in the estate will go to them. If there are children, the estate over £250,000 will be split between the spouse and the children.

If a deceased had no spouse or children, distribution is made in the following order: (1) parents; (2) siblings; (3) grandparents; and (4) aunts and uncles. If there are no family members to follow distribution, the estate will vest in the Crown.

Contact our Wills and Probate Solicitors London

Our solicitors have extensive experience in handling matters relating to trusts, HMRC and tax implications, Power of Attorney and business advice. Our client base is not only domestic, but international, meaning we are well placed to advise on situations where a deceased either had assets overseas or their primary domicile was not in the UK.

We offer a tailored approach that explores and addresses the personal circumstances of our clients. Contact our Wills and Probate Lawyers today on 020 3811 6792 or complete our online enquiry form.

In England and Wales, the requirements for a valid Will are set out in the Wills Act 1837. Failure to adhere to these criteria can result in the whole estate falling into intestacy.

Criteria for a valid Will

In order for a will to be valid and withstand challenge, there are a range of criteria to be adhered to:

  • The Will must have been entered into by someone over the age of 18.
  • The Will must have been entered into a person who is (1) of sound mind (2) drafts the Will voluntarily and without duress. Sound mind points to the mental capacity of the testator or testatrix, which questions whether the drafter of the Will fully understands the implications of making it, the overall value of their estate and to whom their assets are going to be distributed. If mental capacity is in contention, it is advisable to seek medical opinion.
  • The Will must be in writing.
  • The Will must be signed in the presence of two witnesses. If the witness is a beneficiary of the Will, or married to a beneficiary of the Will, that witness cannot subsequently inherit.

Destroying or revoking a Will

A Will can be altered after signing through (1) adding a codicil or (2) drafting a replacement Will. A codicil is a written document containing amendments to the original Will, which must be signed and witnessed as per the original Will in order to be valid. If a person wishes to cancel their Will entirely and start over, the new Will must state it is revoking the previous Will, which will have to be destroyed.

A Will is destroyed where it is torn, burned or otherwise disposed of in the presence of the drafter with the intention that it is to be destroyed. Diligence must be carried out to check other copies have not been made.

It is important to note that getting married after making a Will may have the legal effect of revoking it, unless contingency for getting married is made.

Contact our Wills and Probate Solicitors

Our solicitors have extensive experience in handling matters relating to the drafting of Wills. Our client base is not only domestic, but international, meaning we are well placed to advise on situations where a deceased either had assets overseas or their primary domicile was not in the UK.

We offer a tailored approach that explores and addresses the personal circumstances of our clients. Contact our Wills and Probate Lawyers today on 020 3811 6792 or complete our online enquiry form.

In England & Wales, in order for probate to be court approved, an application fee is required. The fee is at a starting flat rate of £215 for estates over £5,000, but this can be reduced to £155 if a Probate Solicitor is appointed.

Cost of Probate Solicitor

In England & Wales, the Law Society sets a recommended cost of 1.5% of the value of the deceased’s real property, with an added 1.5% on the value of each further asset. This rate is considerably lower than banks, who will typically handle estates for a 4% return.

Tax liability

It is important to note that before grant of probate an estate has to pay off any inheritance tax due. Inheritance tax will apply to estates over and above the nil rate band of £325,000.

Contact our Wills and Probate Solicitors London

Our solicitors have extensive experience in handling matters relating to trusts, HMRC and tax implications, Power of Attorney and business advice. Our client base is not only domestic, but international, meaning we are well placed to advise on situations where a deceased either had assets overseas or their primary domicile was not in the UK.

We offer a tailored approach that explores and addresses the personal circumstances of our clients. Contact our Wills and Probate Lawyers today on 020 3811 6792 or complete our online enquiry form.

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