Probate and Intestacy

Probate is the procedure of dealing with a deceased person’s possessions (and this means everything they own, from the house, money to household contents) after they have died, pursuant to the terms of their Will. After death, the Will of the deceased has to be “proved” by the Probate Division of the High Court, and this process eventually validates the Will as the last Will and Testament of the deceased. Once granted, the Grant of Probate allows the Exexutors to deal with the Estate by closing bank accounts, claiming on insurance policies, selling the house etc, and then settling any debts of the Estate (and the funeral expenses), before ultimately distributing the balance to the Beneficiaries named in the Will.

This is the legal process that defines who is entitled to a share of the deceased person’s money, property and possessions if they die without making a Will. The law decides who inherits the Estate if there is no Will, and who deals with the Estate.

This depends on the size of your Estate when you die. If your Estate is less than £250,000.00 then yes your spouse will inherit all of your Estate. If your Estate is over £250,000.00 and you have children (meaning all of your children, and not just the children from your marriage), then your spouse will receive the first £250,000.00, all of your personal possessions, and one half of the remainder of your Estate, with the other half passing equally between your surviving children (or their issue i.e. your grandchildren if a child dies before you). If there are no children, then your spouse inherits all of your estate.

Regrettably, under the current Intestacy Rules, your cohabitee, irrespective of how long you had lived together, will not automatically inherit any of your Estate. In such circumstances, they may have to resort to issuing proceedings under the Inheritance (Provision for family and Dependants) Act 1975, to stake a claim against your Estate. This is why at Kirkham Legal we advise people who live together to give serious consideration to the preparation of Wills, as a Will in such circumstances would (if adequate provision was made) avoid the need for such potentially costly and lengthy proceedings.

The Intestacy Rules then dictate who will inherit your Estate, along the line of a “pecking order”, with your children being first in line (or the children of any who have died before you), then your parents, before moving on to your brothers and sisters of the whole blood, and then through your various relatives before ultimately going to the Crown in cases where a deceased left no relatives. We would advise anyone who is dealing with a complicated intestacy to definitely seek legal advice as specialist help may be needed in tracking down distant relatives.

This very important job will be carried out by your Executor or Executors (if you left a Will and named Executors who were still living and willing and able to carry out the appointment) or your Administrator or Administrators (if you died intestate, whereupon the law dictates who does this job, and this is usually a Beneficiary of the Estate). Executors and Administrators are commonly known as “Personal Representatives”.

Simply put, they sort out your Estate when you die. An Executor’s authority arises under the terms of your Will at your death, but an Administrator’s authority only legally arises when the Grant of Letters of Administration is made by the Probate Court. The Personal Representatives will sort out your funeral arrangements, register your death, insure your property (this is very important and often overlooked), write to your asset holders and creditors, value the assets and liabilities in your Estate, apply for the Grant of Representation, and once the Grant is made they can call in your assets, sell your house, settle your debts and finally distribute the balance to the Beneficiaries of your Estate. They should also prepare Estate Accounts to be approved by all of the Personal Representatives and Beneficiaries before the Estate is distributed.

It is important to note that Personal Representatives can be held personally responsible for monies passing through their hands, so our advice is that if any issue arise during the administration of the Estate then they should immediately seek legal advice, and the costs of such advice is generally recognised as reasonable expenditure and therefore payable out of the Estate.

This can cause problems, and is why we strongly suggest to our clients that they name more than one Executor, and possibly substitute Executors as well, when preparing their Wills.
If this does happen, the Will is still valid in so far as the gifts to the Beneficiaries are concerned, but someone will have to step forward to apply for the Grant. In most cases, this will be one or more of the Beneficiaries.

This depends on the nature of the assets in your Estate, and their value. If you leave a house, then your Executors will need a Grant of Probate to be able to sell it, or transfer it to a Beneficiary, unless you hold the house as “Joint tenants” in which case the house will pass automatically to the other joint owner. If you just leave bank accounts, then it is possible that a Grant may not be needed if the accounts have small balances, as the Banks or Building Societies may be prepared to release the moneys upon the Executor or Executors completing claim forms, producing the Will and death certificate, and indemnifying the institution concerned. Ultimately, it is a matter for the institution and their approaches do differ, but this can be ascertained soon after death once they have been provided with a copy of the Death Certificate.

Once the Executors have ascertained the gross and net values of the Estate, they will then prepare the necessary paperwork. An “Oath for Executors” has to be sworn by the Executors, and then this is sent to the Probate Registry together with the original Will, copies of the Will, the appropriate Inheritance Tax Form (there are 2 forms, IHT 205 and IHT 400, and the Executors complete one, which is based on the size and nature of the Estate) and a cheque for the Probate Court Fee. If the Estate is subject to Inheritance Tax, the Executors must also pay any tax due, which in many cases causes problems for the Executor as they do not at that stage have access to Estate monies. If this situation arises, we would strongly advise an Executor to seek legal advice.

The Probate Registry then checks the documentation and if everything is in order, the Grant will be sealed and sent to the Executors. The Executors should also apply for “sealed copies” which can then be used to deal with more than one asset at once, thereby speeding up the Estate administration.

To clarify, this is the type of Grant needed when an Intestacy arises. The Administrator will need to prepare an “Oath for Administrators” and an IHT 205 or IHT 400 Form, and then send the same to the Probate Registry together with payment of the application fee. Again, any Inheritance Tax payable should be settled before applying for this Grant.

Yes, you can but if the Estate is not straightforward, it is advisable for you to seek advice from a lawyer, and most firms will quote you a fee for a fixed piece of work, for example, to prepare the Oath and the IHT Form, rather than dealing with the whole of the Estate on your behalf. If you do however appoint a lawyer at the outset to deal with the Estate (or if a Law Firm is named as Executor) then they will deal with everything on your behalf, from writing the initial letters to the asset holders to finally distributing the Estate, and their bill is payable from the Estate before final distribution to the Beneficiaries. Most law firms will provide you with an accurate quotation at the outset if they are provided with all of the relevant information.

As they are running a business, a lot of Funeral Directors need relatively early payment particularly as the Probate process usually takes many months. However, in our experience most banks are prepared to settle the funeral account directly with the Funeral Directors (or by forwarding a cheque payable to them), upon production of the invoice and without waiting for Grant to be obtained.

This does depend upon the nature and the number of assets in the Estate, and any complicated issues that arise. Generally speaking, once the Grant paperwork is submitted to the Probate Court, the actual grant should be issued within a couple of weeks. This then enables the Executor to close bank accounts etc., and to legally sell a property.