FAQs 

Frequently asked questions

What initial steps should I take following a death?

The first steps are to register the death and arrange the funeral. It is then important to ensure that any property owned by the deceased is made secure (if unoccupied) and has adequate insurance cover. Consideration should be given to removing any household contents as soon as possible.

Once those initial steps have been taken the job of administering the estate can begin. Our probate team can also assist with those initial steps as well as the general administration of the estate, if required.

What is Probate?

Probate is the legal authority for the person named in the Will as Executor, or a person appointed by the Court as what is termed an Administrator to deal with the deceased’s affairs.

A Grant of Representation is issued by the Probate Court to the Executor of a Will and this is known as a Grant of Probate. Where there is no Will, the Grant of Representation issued by the Court to one of the beneficiaries of the estate is known as Grant of Letters of Administration. Both a Grant of Probate and a Grant of Letters of Administration are commonly termed ‘Probate’.

Without obtaining a Grant, you cannot usually sell or deal with any of the deceased’s assets or close any accounts or transfer funds. It is therefore a vital step in the Estate Administration process.

What is Estate Administration?

Estate Administration is the general term used for winding up a deceased estate.

This typically involves securing the deceased’s assets, collecting details and values of assets and debts owed at the time of death, obtaining a Grant of Representation (Probate) and the completion of Inheritance Tax returns and payment of any tax due.

Once the Grant has been obtained, the Estate Administration continues to include collection of the deceased assets, sale of properties, payment of debts, clearing of all tax liabilities and the distribution of the remainder to those entitled to benefit.

Do I need to obtain Probate?

Probably yes. It will depend on what assets the deceased held at the time of death. If the deceased owned any property or has cash assets greater than £5,000 it is likely that Probate will be needed.

When you notify the deceased’s bankers or other asset holders after death, they will confirm their requirement for closure or release of funds. It is usual that Probate is requested as authority from the Executor or Administrator that they are the person responsible for collecting in the deceased’s assets.

What are the options in terms of getting Probate?

There are two choices:

• A personal application can be made at the Probate Court. The Probate Court will issue you with several forms to complete and you will be required to attend at Court for interview.
• You can make an application via a Solicitor. Once a Solicitor has all the details of the assets and liabilities of the deceased’s estate, a document called an Oath is prepared for the person who is applying for Probate. The application is then made direct to Court via the Solicitor and no interview at Court is required.

Why should I use a Solicitor to assist me in Probate and Estate Administration?

It is usually quicker to obtain Probate via a Solicitor application due to the time taken to arrange the Court interview if a personal application is made. Irwin Mitchell has great expertise in obtaining Probate quickly and simply at very cost effective rates. We deal with around 2,000 applications for Probate each year.

In terms of Estate Administration, you may wish to instruct us to deal with all matters on your behalf or just certain aspects of the administration. We are experts in dealing with estates, and we know what the process is, what forms need completing and can indentify any problems at the earliest opportunity.

The role of Executor or Administrator is difficult and time consuming. We can ease that burden.

We also have in house expertise to deal with complex matters that may arise in any estate and can give specific legal expertise on all aspects.

If there is any dispute or family wranglings in relation to the estate, it is often preferable for an independent body to deal with the estate administration to ensure fairness between all beneficiaries.

Do I need to use the same solicitor that drafted the Will to administer the estate?

No, you are free to instruct any Solicitor or other organisation to administer the estate. The Executor makes the decision on whom to instruct.

What if there is no Will?

If you are asked to deal with an estate where there is no Will, then the process of estate administration differs slightly.

Firstly, you need to ascertain who is entitled to apply to the Probate Court for the Grant of Representation. This is usually the person who is entitled to benefit from the estate. If there is no Will, the estate is distributed according to the laws of intestacy.

Whilst this is usually the most direct relative, the laws are complex and often those who believe they are entitled are not necessarily entitled or not to the extent they expect.

We can advise you on who should make the Grant application and who is entitled to the estate under the intestacy laws.

What happens if I can't find the Will?

If you believe that there is a Will in existence but cannot locate it, you should make a thorough search of the property and with any organisations where the deceased held assets or accounts and with local Solicitors.

If you have a copy of the Will (but not the original), there may be a possibility that we can proceed using the copy but the Probate rules are complex. We can guide you through the steps needed in this matter and advise you where to search for the original document.

What fees are involved?

As the Irwin Mitchell Probate Service is tiered you only pay for the level of assistance you need. We do not charge any fees until we have discussed and agreed the level of service you need. Contact us and we will be able to discuss what you need and if we can help. If we can’t or you do not require our assistance, that’s fine. If we can, we can agree the level of fees and service. The Estate will bear the costs of any probate or estate administration fees incurred so you do not have to pay those out of your own pocket.

I am named as Executor in the Will, what are my responsibilities?

As Executor it is your responsibility to take charge of ALL the assets of the deceased on behalf of the estate and those who benefit from that estate. You have the legal authority and responsibility for the administration of the estate, being fully accountable to the beneficiaries for all your actions. You are also held personally and financially liable if the estate suffers any loss.

The role of an Executor can be an onerous task and without proper guidance can be very difficult. You will need to correctly identify and value all assets, identify and ensure the correct payments are made to all beneficiaries, ensure that all taxes are correctly paid and all the deceased’s debts discharged.

We can help with guidance on how to undertake these tasks.

I am named as Executor and I don't want to act, what should I do?

You may decide that the role of Executor is too much to undertake. There is a procedure called ‘Renunciation’ which allows you to renounce your role provided that you have not ‘intermeddled’ in the estate administration – which means if you have started to deal with the estate then you cannot renounce. If you do wish to renounce you need to do this as early as possible after the death and we can advise on how to do this and what will happen to the administration if you do.

What should I do if there is a dispute in relation to the Will or Estate?

If there’s a dispute we can investigate and advise you how best to deal with that, particularly if you are named as Executor. We have a dedicated team who have significant expertise in this area. If you wish to challenge a Will and you are not named as Executor or beneficiary, we can also help.

What is Inheritance tax?

Inheritance Tax is a tax paid by the Executors of the estate from the estate funds and based on the value of the Estate (Assets less debts) at death. It is charged at 40% on all assets above the ‘nil rate band’ threshold. This is currently £325,000 for the tax year (11/12).

Does the estate need to pay Inheritance tax?

If the estate is valued at more than the nil rate band threshold (see previous question) then it is liable to pay Inheritance tax. However, there are other reliefs and exemptions available and it is possible in some circumstances to transfer the allowances between spouses to minimise or eradicate completely the payment of Inheritance tax. Contact us and we will provide further guidance.

What other institutions do I need to deal with?

If you are dealing with an Estate Administration, you will need to deal with a number of organisations, companies and professional bodies. This can include HM Revenue & Customs, Department for Work and Pensions, Local Authorities, Utility Companies, Estate Agents and Stockbrokers.

How long does Probate & Estate Administration typically take?

This does depend on the composition of the estate and is often dependant on whether the deceased owned a property and how long that takes to sell.

If the estate is liable for Inheritance tax then this also extends the process. A full Inheritance tax return needs to be completed and you must account fully for the tax due, make final returns and adjustments. You then need to wait for a ‘clearance’ certificate from the Revenue before you can distribute the estate. Similarly if there are any complexities, like a family dispute or assets overseas, then this may also delay completion.

On average an estate can take between 9-12 months to fully administer. We aim to get the Grant of Probate within 8 weeks of first instruction which generally allows us to access funds if available and make interim payments to beneficiaries as soon as possible, even if the estate administration itself may take longer.