Probate & Estate Administration
When a person dies, somebody has to deal with their estate - collecting in their money, property and possessions, paying any debts and then distributing the estate to those entitled to it. The prospect of having to deal with their estate can seem daunting. But it is important that the estate is administered correctly and within a reasonable timescale.
- If the person who died left a Will, the person who deals with the estate is known as an Executor. They have to pay any debts and then distribute the estate in accordance with the Will
- If there is no Will or the Will is invalid, the person who performs this role is known as an Administrator. They have to pay any debts and distribute the estate in accordance with what are known as the Intestacy Rules
What does Probate mean?
A Grant of Probate is a formal document issued by the Probate Registry giving one or more people legal authority to administer the estate. There are two types of Grant:
- Grant of Probate, if there is a Will. When someone makes a Will, they usually specify who they want to deal with their estate when they die (their Executors). Probate is the technical term describing the legal process of the Executors proving that the Will is valid
- Letters of Administration, if there is no Will or the Will is invalid. In these situations, next of kin are appointed as the Administrators of the estate
For ease, we refer to both Executors and Administrators as the Personal Representatives of an estate (“PRs”).
Do I need a Grant of Probate?
Whether you need a Grant of Probate usually depends on the estate’s assets.
If there is a property, land or shares then a Grant of Probate will be required. Some financial institutions including banks and building societies, also require a Grant of Probate depending on the nature and value of the investment.
If the estate’s assets are owned jointly by a spouse for example, it is not usually necessary to obtain a Grant of Probate.
Who are the Executors and what do they do?
The Executors of an estate are named in the Will. If there is no Will, the person’s next of kin (usually their spouse or civil partner or children) can apply to the Probate Registry to be appointed as Administrators. Executors or Administrators are known as the Personal Representatives of an estate (“PRs”).
The PRs are expected to:
- Notify the relevant authorities of the death
- Collect all of the assets, money, property and possessions
- Pay any outstanding debts
- Then distribute the estate in accordance with the Will or if there is no valid Will, in accordance with the Intestacy Rules
If you are aware that a friend or relative has died and think you may have been appointed as a PR, we can guide you through the process.
If I appoint Solicitors, how much will it cost?
It depends on the amount of work involved. In straightforward cases, people sometimes just need a bit of help with a particular aspect. At the other end of the scale, we handle complex estates worth millions of pounds.
Traditionally, solicitors charge on hourly rates. If the estate is relatively straightforward or if you just want us to help you to apply for a Grant of Probate for example, we are usually happy to quote a fixed fee. In more complex matters, where it is difficult to know exactly how much work will be needed, we will usually charge on hourly rates but we will give you our best estimate of the likely total cost.
In most cases, the legal costs are paid from the estate and you will not be personally liable for our charges. If you are worried about legal fees, please talk to us. We won’t charge you just to tell you whether we can offer a fixed fee or to give you an estimate.
How long does it take to administer an estate?
Again, it depends on the complexity of the estate.
If there is a property that needs to be sold, the administration cannot be completed until the sale goes through.
If the estate has few assets and liabilities, we can usually complete the administration within 3-6 months.
We will give you our best estimate of the likely timescale at the outset and keep you updated throughout.
Is it only Inheritance Tax that I need to worry about?
No, there are a number of taxes that may arise during the course of the administration of an estate, including Inheritance Tax, Capital Gains Tax and Income Tax. We advise Personal Representatives about all of these taxes and can help you with the necessary tax returns and dealing with any further enquiries that HM Revenue & Customs may make.
Disputes about estates
When someone dies, emotions can run high and lead to disputes especially if someone feels they have been treated unfairly.
We have one of the largest Dispute Resolution teams in the area with specialists in disputes such as:
- Claims that the person making the Will did not have sufficient mental capacity
- Claims that the person making the Will was unduly influenced by someone else
- Inheritance Act claims where someone feels that the Will does not make reasonable financial provision for them
- Complaints about Personal Representatives or disputes between them
- Disputes about the interpretation of a Will
- Claims arising from drafting errors and poor advice by solicitors or will-writers
For further information, please see our section on Contested Wills and Probate.
Even straightforward estates can raise difficult issues, so taking legal advice at the outset is always a good idea. What might initially appear simple could turn out to be far more complicated and taking professional legal advice will help to avoid putting yourself at risk. For further information, please contact one of our specialists in the Wills, Trusts and Probate Team.