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Probate – All you need to know

 

IF YOU NEED TO APPLY FOR PROBATE OR LETTERS OF ADMINISTRATION

FOR THE ESTATE OF A DECEASED RELATIVE

PLEASE CALL MARTIN ENGLEMAN FOR GUIDANCE AND AN INDICATION OF FEES

 

TELL US ONCE

Tell Us Once is a service that lets you report a death to most government organisations in one go, to the following organisations:-

  • HM Revenue and Customs HMRC ctrl / click - to deal with personal and business taxation, National Insurance and VAT
  • Department for Work and Pensions DWP ctrl / click - to cancel benefits, for example Income Support
  • Passport Office - to cancel a British passport
  • Driver and Vehicle Licensing Agency DVLA ctrl / click to cancel a driving licence and to remove the person as the keeper for up to 5 vehicles
  • the local council - to cancel Housing Benefit, Council Tax Benefit, a Blue Badge, inform council housing services and remove the person from the electoral register
  • public sector or armed forces pension schemes - to stop pension payments

 

What is Probate?

When a person dies, somebody has to deal with their estate (property, investments, money and possessions) by collecting in all the money, paying any debts and distributing what is left to those people entitled to it. Probate is the Court’s authority given to a person or persons to administer a deceased person’s estate, and the document issued by the Probate Service is called a Grant of Representation. This document is usually required by the asset holders as proof to show the correct person or persons have the Probate Service’s authority to administer the deceased person’s estate.

 

What is the Probate Service?

The Probate Service forms part of the Family Division of the High Court. It deals with non-contentious Probate business (ie where there is no dispute about the validity of a Will or entitlement to take a grant), and issues Grants of Representation, which are known as either:

  • Probate (when the deceased person left a valid Will and an Executor is acting).
  • Letters of administration with Will (when a person has left a valid Will but no executor is acting).
  • Letters of administration (usually when there is no valid Will).

These different types of Grants of Representation appoint people known as Personal Representatives to administer the deceased person’s estate.

 

HOW TO OBTAIN COPIES OF PROBATE RECORDS 

Go to www.justice.gov.uk/courts/probate/copies-of-grants-wills.

 

The Probate Service is currently made up of:

  • The Principal Registry in London.
  • 11 District Probate Registries.
  • 18 Probate Sub-Registries situated throughout England and Wales.

There are also a number of Probate 'offices' (usually a room in a court or local authority building) which staff attend, as necessary, to allow personal applicants to attend to swear the oath. You can apply yourself or use a legal firm or adviser.

In most cases, the basic process is as follows:

  1. Check if there is a Will - this normally states who sorts out the estate; if there’s no Will the next of kin of the deceased can apply.
  2. Apply to get a ‘Grant of Representation’ - this gives you the legal right to access assets, eg the deceased's bank account.
  3. Pay Inheritance Tax - this is only paid if the estate is worth over £325,000, and is part of applying for a Grant of Representation. Once any tax due has been paid, you can collect the assets.
  4. Collect the assets - eg money from the sale of the deceased's property
  5. Pay any debts - eg unpaid utilities bills.
  6. Distribute the estate - this means giving any property, money or possessions to the people entitled to it (‘beneficiaries’).

 

You do not normally need a Grant if the estate:

  • passes to the surviving spouse/civil partner because it was held in joint names – eg a savings account.
  • does not include land, property or shares.

You should contact the organisation holding the money - eg the bank or building society. They may ask for proof of death - eg the death certificate after the death has been registered. Each financial institution has its own rules - you may still need to apply for a grant.

 

If the deceased left a Will

You can apply for a grant of representation if you are the ‘Executor’ of the will, the person named to deal with the estate.

If more than one Executor is named in the will, the Probate application form and guidance notes explain what to do.

You should contact your local Probate Registry if either:

  • no Executor is named in the will.
  • none of the named Executors is willing or able to apply.

 

If the deceased did not leave a Will

The deceased's next of kin, eg the spouse (or civil partner) or children, can usually apply for a Grant of Representation.

If there is no Will, the law decides who inherits the estate.

 

Partners and ex-partners

If you are the partner of the deceased but not married to them (or in a civil partnership) you cannot apply. You are also not automatically entitled to inherit any of your partner’s estate. You should get legal advice to find out about your rights.

If the deceased was separated but not yet divorced (or had their civil partnership dissolved), their spouse (or civil partner) would inherit some or all of the estate, and must apply for the grant.

 

Joint bank and savings accounts

If you had a joint account with the deceased, the contents of the account may automatically pass to you without requiring a grant of representation. However banks can freeze further transactions on the account, for purposes of risk and fraud management, until Probate is granted.

It is therefore prudent to have suitable cash amounts in separate accounts, so that surviving close relatives of the deceased have ready access to cash for post-death expenses, eg a funeral, as well as everyday expenses, eg utility bills, for the ensuing months of typical Probate administration delay.

 

Joint property

What happens to the deceased's property depends on how it was owned. If the property was:

  • held under ‘joint tenancy’, the surviving owner inherits the whole property automatically.
  • owned as a ‘tenancy in common’, the deceased's Will (or the law if there is no will) states who inherits their share.
  • owned outright by the person, the terms of their Will(s) state who inherits (or the law if there is no Will).

 

Applying for a Grant of Representation

You can apply for a Grant of Representation yourself or obtain legal advice. There are 4 steps.

  1. Complete a Probate application form.
  2. Complete an Inheritance Tax form.
  3. Send off your application.
  4. Swear an oath.

 

Complete a Probate application form

You can either:

  • fill in the Probate application form PA1 yourself.
  • call the Probate and Inheritance Tax helpline - 0300 123 1072 (Monday to Friday, 9am to 5pm).

The Probate and Inheritance Tax helpline can help you fill in the form.

 

Complete an Inheritance Tax form

You must also work out how much the estate is worth. Depending on its value, there may be Inheritance Tax to pay.

You must complete an Inheritance Tax form, even if you think no tax is owed.

 

Find the correct Inheritance Tax form

If there is tax to pay, you normally have to pay at least some of it before a grant of representation is issued to you, see https://www.gov.uk/paying-inheritance-tax/overview.

 

Send off your application

This should include:

  • the Probate application form PA1.
  • the Inheritance Tax form.
  • an official copy of the death certificate.
  • the original Will and 2 copies, and any codicils (additions or amendments to it).
  • the application fee of £105 via a cheque made payable to HM Courts & Tribunals Service (there is no fee if the estate is under £5,000).

You can pay for extra copies of the grant (£1 each) - this means you can send them to different organisations at the same time.

 

Swear an oath

You’ll need to go to a local Probate office to swear an oath: this is a ‘promise’ that the information you’ve given is true, to the best of your knowledge.

You must bring 2 items of identification with you, typically:

  • full driving licence.
  • passport.

You should get the Grant through the post within 10 working days of swearing the oath.

If it is not possible to issue a Grant, the Probate Service will explain why in writing.

Once the Grant has been issued, you must contact the appropriate organisations administering the deceased's assets, eg banks, insurance and investment providers, and send them a copy of the Grant. They should then ‘release’ the assets so you can transfer them into the Executorship account.

If the person had a pension, contact the organisation, a surviving spouse (or civil partner) may be entitled to money from it.

 

Pay any debts or outstanding payments

Once you have contacted all the organisations, pay off any debts the person owed. This could include:

  • outstanding bills.
  • tax owed.

As the Executor or Administrator you have a legal responsibility to pay off any debts or outstanding payments before distributing the estate. You can use money from the estate to pay any legal fees as part of the Probate process.

 

Distribute the estate

Once all debts and taxes have been paid, you can distribute the estate as detailed:

  • in the Will.
  • using the law, if there is no Will.

After this you should prepare the estate accounts. These must be approved and signed, by both you and the main beneficiaries.

 

 Obtain legal advice if property is involved as part of an inheritance

 

If you inherit property

If you inherit property, eg from your parents, you have responsibilities and potential tax implications.

 

Selling the property

You may have to pay eg Capital Gains tax on any profit you make when you sell the property. Obtain advice from the HM Revenue & Customs Trusts & Deceased Estate Helpline. 0845 604 6455 Monday to Friday, 9am to 5pm.

 

If you keep the property

If you already own a home you need to nominate one of your homes as your main home - let your Tax Office know. You can only have relief from Capital Gains Tax for your main home.

You should also register your ownership at the Land Registry, although legally you do not have to do this unless the property is sold or mortgaged.

 

If another owner is still living at the property

You need to agree with them whether:

  • they will continue living there.
  • the property will be sold.

Their right to remain may be stated in the Will, if there is one.

 

Renting the property

You may have to pay Income Tax on the rental income you make. Get advice from the Tax Office.

If you inherit a property that has a tenant, you have responsibilities as a landlord, especially if you want to sell the property.

 

 

 

 

 

 

 

Engleman Wills + Powers of Attorney + Probate + Equity Release

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