The period after the passing of a loved one is a difficult and stressful time. Firstly, probate must be applied for - giving the chosen person/s the legal right to deal with the deceased’s estate. This can be time-consuming and require a lot of work, such as estimating the estate, contacting institutions, and paying taxes. On top of this, further complications can occur during this process, creating delays in the administration and frustration for many parties involved.
In this article, we will focus on three common challenges faced during probate:
- dying without a Will,
- problems with beneficiaries, and
- problems with Executors.
Dying without a Will
When someone dies without a Will, they are said to die intestate. The probate process and the rules concerning estate administration for those who die intestate are different from those who left a Will. It is not as simple as following the wishes of the deceased as detailed in their Will; in reality, the intestacy rules may not reflect the wishes of the deceased. Considering more than half of the population of the UK does not have a Will in place, this is an extremely common complication for people to run into.
Who can administer the estate?
One issue created when someone dies intestate is who can administer the estate. Since there is no Will to identify this person, the law states that the so-called ‘entitled’ person can apply to become an Administrator (equivalent to an Executor). The entitled person is the person with the closest familial relationship to the deceased in this order:
- spouse/civil partner,
- children (over 18),
- living parents,
- siblings,
- grandparents,
- aunts/uncles.
It’s important to note that unmarried partners and cohabitants are not included in this list.
What is the process of applying?
Before applying for probate, the entitled person will need to register the death of the deceased, value the deceased’s estate, and pay any applicable inheritance tax. Probate can then be applied online or by post. If successful, you will receive what is called ‘letters of administration’.
How will the estate be distributed?
Once you receive the letters of administration, this allows you to begin administering the estate according to the intestacy rules. The intestacy rules are generally outlined here.
If the deceased had a spouse or civil partner and no children, then the spouse/civil partner inherits the entire estate.
For those who were not married or in a civil partnership but did have children, then the children will inherit the entire estate equally among them.
If the deceased had children and a surviving spouse/civil partner, then the spouse/civil partner receives:
- the first £270,000 of the estate,
- all personal possessions of the deceased, and
- half of the remainder of the estate.
The remaining half is then split among the children.
If there are no children, spouses, or civil partners, those who will inherit next are as follows:
- grandchildren,
- parents,
- siblings,
- grandparents,
- aunts/uncles.
Problems with beneficiaries
Beneficiaries are those entitled to inherit from the deceased's estate. Many problems can be encountered when dealing with beneficiaries, a few of which are detailed here.
Missing beneficiaries
One issue which could occur is that the Executor/Administrator may not know where the beneficiary is. A beneficiary can claim their inheritance for up to 12 years, meaning it is not wise to distribute the estate fully when there is a missing beneficiary as the Executor/Administrator could be held personally liable. So, what should you do if a beneficiary is missing?
First, you should ask around family and friends and look through the deceased’s documents to try to locate the beneficiary as best you can. Beyond this, you should:
- place statutory adverts in the Law Gazette and local newspapers,
- instruct genealogists or tracing agents to find the beneficiary.
If the beneficiary is still missing after these measures have been taken, you could:
- hold on to their portion of the inheritance until the end of the 12-year claim period,
- distribute their share to the beneficiaries with an agreement that if the missing beneficiary claims, the other beneficiaries will reimburse the missing beneficiary, or
- apply for what is known as a ‘Benjamin Order’ where the Court will decide how the estate should be dealt with.
Bankrupt beneficiaries
There are complex rules with regard to bankrupt beneficiaries. Generally speaking, if a beneficiary who stands to inherit has been declared bankrupt, then this is to be paid to the Trustee of their estate by the Executor/Administrator.
Disputes among beneficiaries
It is also possible to run into issues where beneficiaries are unsatisfied with their inheritance. Certain people such as spouses/civil partners, ex-spouses/civil partners, cohabitants and children may claim if they feel they should have inherited more. Some people may even contest a Will, which can cause complications for all involved.
Executors
Executors are those named under the Will to administer the deceased’s estate. Described below are some of the common problems faced with Executors.
Unable to act
Various problems can arise if the Executor of the estate is unable or unwilling to act, especially if they are the sole Executor. It is possible for the Executor to renounce their powers or give authority to another to act. However, this will likely increase the time taken to deal with an estate and potentially increase costs. Such circumstances reaffirm the benefit of appointing more than one person to be Executor in your Will.
Not fulfilling their duties
Another problem that can occur is Executors not performing their duties properly. This could include not settling debts or distributing the estate properly. If you feel an Executor is not fulfilling their duties properly, you may be able to claim against them or have them removed as Executor.
Contact our Probate Solicitors in Central London today
Given how complex the probate process is, it is easy to see how any of these problems occurring during the process could raise the stress, time and costs associated with probate. Our expert team at Lewis Nedas Law can help you through this process, no matter how complex it seems. Contact us on 020 7387 2032 or fill in our online enquiry form to get help from our team.
