Probate Questions Answered 

Probate questions answered by Thorne Segar’s probate and Wills specialists – Becky Padgett and Iestyn Milton-Jenkins. Becky is an authority on Probate and Administration of Estate, Inheritance Tax and Trusts. Iestyn is an expert in the field of law for the elderly including Wills and LPAs.

If you have any further questions about probate or need assistance with probate matters don’t hesitate to contact us at Thorne Segar. We’re here to help.

Contact our friendly probate team now:

 01643 703234  |  enquiries@thornesegar.co.uk

Contact our friendly probate team now:

 01643 703234

enquiries@thornesegar.co.uk

What should I do if I can’t find a Will?

A  First search the home, there may be a copy or draft Will among personal papers. There may be other clues such as a letter from a firm of solicitors the deceased has used in the past. If so, contact the firm of solicitors who will tell you if they hold a Will.

Next, it is a good idea to enquire with all local firms of solicitors and Will writing companies. 

There is no official register of Wills. A Google search will likely show ‘The National Will Register’. This is, in fact, a private limited company who provides Will storage and Will search facilities on a charged-for basis.  

A Will can only be released to those who have the authority to see it – Executors or regulated probate lawyers acting on their behalf. They will require proof of your identity and ask for the death certificate.

Is there a formal Will reading?

A  No. The Executors can collect the Will and take advice from a probate lawyer if they choose to do so.

Who is entitled to read a Will after death?

Initially the only people entitled to read a Will are Executors. Executors have the discretion to disclose details to other people; a probate lawyer for example.

The Executors are obliged to inform beneficiaries of the death, that they have been appointed as Executors, and what the beneficiary will inherit. The Executors should provide a copy of the Will to Residuary Beneficiaries. Legatees (those who have been left a specific item or set sum of money) are not entitled to a copy of the Will, but should be notified of their gift.

Wills remain private documents until a Grant of Probate is issued, at which point they become publicly accessible. Anyone can apply to the Probate registry to obtain a copy.

Who is responsible for getting probate?

A  The Executors named in the Will are responsible for dealing with the Estate, including obtaining Grant of Probate where necessary. The Executors may administer an estate and apply for Probate themselves or instruct a probate lawyer to do it on their behalf.

Where there is no Will an estate must be administered according to the intestacy rules. In this case an application for Letters of Administration is made to the Probate Registry. The Letters of Administration identify the Administrators who have authority to administer the estate.

What is a Grant of Probate?

A  Grant of Probate is a document proving the legal authority to administer an estate given by the Probate Registry which is a department of HM Courts and Tribunals service.

What is a Personal Representative in probate?

A  A Personal Representative is a person who is legally responsible for administering an estate. They could be either an Executor (where there was a Will) or an Administrator (where there was no Will and Letters of Administration were granted – or there is a Will but no Executors eg Executors have died and a Beneficiary is applying to administer the estate).

Executors don’t want to act – who can administer the estate?

A  Any of the beneficiaries – however there is an order of priority of who can act set out by the Non Contentious Probate Rules.

The bank have closed an account and want to transfer money. Can I put it in my account?

A  This depends. If you are the sole beneficiary and executor and there are no debts and no inheritance tax it may be ok. Generally, however, this is not advisable. The Executors should open an Executor’s account to receive the Estate’s money and keep it separate from their own. You have an obligation to protect the Estate’s money for the beneficiaries.

High street banks don’t always offer an executor’s account so the next best thing is to open a joint account with the other Executor. A probate lawyer will use a special client account which removes the requirement to open an executor’s account.

Is Probate required?

A  You do not always need Probate to deal with a deceased person’s estate. Whether or not Probate is required is determined by the assets in the Estate – what their value is and how they are held. 

If the Estate is small, Probate may not be required. Likewise if accounts are held in joint names they can usually pass to the surviving account holder without Probate on production of a death certificate. 

As for property there are two ways this can be held jointly: As Joint Tenants or as Joint Tenants in Common. If held as Joint Tenants the property passes automatically to the surviving owner. If held as Joint Tenants in Common a Grant of Probate will be required. If a property was held in the deceased person’s sole name Probate will be required to sell it or transfer ownership.

Banks will usually require Probate to release money to the executors. The threshold varies from bank to bank. Asset holders will tell you if they require Probate. 

The best way to establish if Probate is required is to consult with an experienced Taunton probate solicitors, like Thorne Segar. Our probate lawyers can help you determine whether probate is necessary and guide you through the process accordingly.

A qualified probate lawyer can also ensure the wishes in the deceased person’s will are executed correctly.

Do I need Probate if my spouse or civil partner dies?

A  It depends. If all assets were held jointly you may not need Probate. If assets, especially property, investments, or large sums of money were held by the deceased person individually you will likely need Probate.

How do you get Probate?

A  To obtain a Grant of Probate an application must be made to the Probate Registry. You will need to have a death certificate, valued the estate and assessed the Inheritance Tax liability.

You can apply for Probate using a paper form and sending paper documents to the Probate Registry or applications can be made online. 

There is a fee of £273 to apply for probate if the estate’s value is greater than £5,000. Below this threshold there is no fee. The other cost to consider is for additional copies of the Grant of Probate, currently £1.50 each. These are useful when dealing with the estate as they can be sent to different organisations at the same time, rather than waiting for a single grant to be returned.

What are the Intestacy Rules?

A  When someone dies without making a Will their estate must be administered according to the Intestacy Rules. The rules govern who should inherit and establish a hierarchy of entitlement of people related by marriage/civil partnership, and blood, to the deceased.

The intestacy rules are rigid and must be followed. This can mean that an estate is not distributed in line with the deceased person’s wishes. For example an estate may go to an estranged blood relative instead of a life partner to whom the deceased was not married or in a civil partnership with.

It is possible to vary the Intestacy Rules within two years of death with a Deed of Variation, however the Intestacy Beneficiaries must agree to the variation.

What are Letters of Administration?

A  Letters of Administration are issued by the Probate Registry where the deceased did not make a Will (where there was a Will a Grant of Probate is used). Letters of Administration provide the Administrators it appoints with proof of legal authority to administer the estate.

Who is entitled to act on intestacy?

A  If you are a Beneficiary you are entitled to act.

Do I have to act as an Executor & what happens if I don’t want to?

A  No. You are not obliged to act as an Executor. If you are named as Executor but do not want to act for any reason you can renounce. To do so it is imperative you do not act in any way in administering the estate. A formal renunciation document is lodged with the Probate Registry. 

An alternative to renouncing is to appoint a probate lawyer to administer the estate on your behalf. You are still responsible for the estate but the work is done by the probate lawyer. You will also gain the benefit of their experience. You remain as the decision maker.

Q  How long does Probate take?

A  The whole Probate process will take several months. Obtaining a Grant of Probate from the Probate Registry can take a long time. At the time of writing the Gov.uk website suggests it can take up to 16 weeks just to get a Grant of Probate or Letters of Administration.

How long does it take to get inheritance?

A  Allow up to a year. Executors have what is known as an ‘Executor’s Year’ so if they don’t pay a legacy within that year the Legatee is entitled to interest.

Bear in mind, a house may take a long time to sell and the process is dependant on a number of factors.  Similarly, the Probate Registry have gone from taking two weeks to sixteen weeks to issue a Grant.  For Intestacy it can take twenty weeks upward.  

Executors cannot progress until they have a Grant.  The Executors may come under pressure from Beneficiaries but should not be rushed, they must follow the process.  In this situation, a probate lawyer can be really helpful as they will manage the Beneficiaries’ expectations so you don’t have to.  

When can I distribute personal effects?

A  Personal effects can be a common source of disagreement.  If you are an Executor, your authority comes from the Will.  Our advice, is to get a valuation of the items, even if of little or no value, to demonstrate that you have been diligent.  

The next step, is to establish what is gifted under the Will.  You may have to liaise with Beneficiaries to establish who would like what.   

Do you need a solicitor for Probate?

A  No. Where there is a Will, Executors are appointed. The Executors have the right and responsibility to administer the estate, including obtaining a Grant of Probate where necessary. In practice many executors appoint a probate solicitor to help. Being an executor carries with it serious legal responsibilities. Executors are personally liable for all aspects of the estate administration including inheritance tax. Executors are also accountable to the beneficiaries. A probate solicitor can help reduce the risks and workload of administering an estate and deal with Beneficiaries.

Can I get Probate myself?

A  Yes, you can, if you are an Executor or a Beneficiary where Executors have renounced or died or you are an Intestacy Beneficiary.

Questions you should consider when making your decision include: 

  • How much time do I have available?
  • Am I good at detailed paperwork? (some people hate form filling)
  • Do I understand what the Will says? (We’ve seen lots of Will with trusts which Executors haven’t identified).
  • Do I feel confident to assess the Inheritance Tax position?
  • Am I comfortable being accountable to the beneficiaries – what are the family dynamics?
  • Are there charity beneficiaries?

A firm of probate solicitors has been appointed as Executors, can I ask them to renounce?

A  Yes you can. They may charge to prepare a renunciation document, but this should be a fairly modest fee.

How do I know if there is Inheritance Tax to pay?

A  Inheritance Tax is payable on a deceased person’s estate over a threshold, subject to certain allowances, exemptions and reliefs. In many cases there may not be any Inheritance Tax to pay. However executors should exercise caution: they are personally liable for Inheritance Tax. If uncertain the advice of a probate solicitor should be sought.

How much does a probate solicitor cost?

A  Probate solicitors’ fees vary. In most cases probate solicitors will charge a fixed fee or undertake the work on an hourly rate basis. Thorne Segar Solicitors’ fees for probate are typically:

– Obtaining Grant of Probate or Letters of Administration £2,000 – £2,500+VAT

– Complete Estate Administration & Probate service from £5,000+VAT

– Large or complex estates can range from £6,000 – £20,000+VAT

These costs are payable from the estate and do not have to be paid in advance. It is perfectly legitimate for an executor to incur them to enable fulfilment of their duties.

What is a STEP?

A  STEP is a global professional body, comprising lawyers, accountants, trustees and other practitioners that help families plan for their futures. See STEP Website here

Who pays legal fees for Probate and Administering an Estate?

A  The Executors instruct and authorise professional advisors to assist in administering the Estate. The fees are paid from the Residuary Estate. The Residuary Estate is the pot that is left after the Legacies (the specific gifts and set sums of money) are paid. Usually the Residuary Beneficiaries are the people the deceased wished to benefit the most, however theirs is the pot from which funeral expenses, debts, Inheritance Tax and administrative fees are most often paid.

What happens if a Beneficiary is bankrupt?

A  Executors must check whether a Beneficiary is bankrupt prior to distributing their inheritance. If they are bankrupt the money may be due to the Trustee in Bankruptcy. Failure to follow this procedure can result in personal liability ie the Trustee in Bankruptcy can pursue the claim against the Executor if the Beneficiary won’t pay it over.

Contact our friendly probate team now:

 01643 703234  |  enquiries@thornesegar.co.uk

Contact our friendly probate team now:

 01643 703234

enquiries@thornesegar.co.uk

Risks and challenges of probate

Executors can obtain Grant  of Probate and administer an estate themselves. They must, however, fully acquaint themselves with the rules and laws surrounding estate administration, especially handling money and Inheritance Tax. If there is a Will it must be interpreted correctly. Executors are personally liable for and errors, omissions or oversight. If there is any doubt at all the advice of a specialist probate lawyer should be sought.

Thorne Segar Solicitors are probate specialists. We are qualified, experienced, regulated and insured to help you with probate. You don’t have to do it on your own. Many people feel tremendous relief when they instruct a qualified probate lawyer to take care of everything. Get in touch with the probate experts today:

Contact our friendly probate team now:

01643 703234    enquiries@thornesegar.co.uk