Who can start probate when someone dies?

Lawpack on May 21, 2020

When a person dies, their estate must be administered after their death. Someone must collect the assets, pay any debts, and distribute any inheritance to the beneficiaries.

Many people assume that the ‘next of kin’ will administer probate, but this is often not the case.

If someone has left a Will, it’s the executor (or executors) named in the Will who will be responsible for carrying out the deceased’s wishes.

If the deceased didn’t leave a Will, they are said to have died ‘intestate’ and their estate will be distributed in accordance with the laws of intestacy, which also determine who should be appointed as administrator, to administer the estate.

Either way, it’s an executor or administrator who is responsible for dealing with probate and the administration of the estate.

In probate terms, both executors and administrators are called ‘personal representatives’.

What are the duties of an executor?

The duties of an executor (or administrator) are to:

  • Check and understand the Will
  • Obtain details of all the assets and liabilities
  • Complete an application for the grant of probate or confirmation
  • Fill in Inland Revenue forms
  • Collect in the assets
  • Pay Inheritance, Income and Capital Gains Tax
  • Pay liabilities and expenses of the estate
  • Pay or transfer legacies
  • Distribute the residuary estate
  • Prepare estate accounts.

 

Be careful

The task of administering an estate involves a considerable amount of work and the decision to act as executor or administrator shouldn’t be taken lightly.

Executors or administrators are accountable to HM Revenue & Customs and to the beneficiaries. The process of administering an estate can be quite time-consuming and sometimes daunting.

But don’t worry. You can do probate yourself. Lawpack’s DIY Probate Kit has been written by probate experts to help guide you through the process.

Read our article to find out if you can do probate yourself.

Other information

 

 

Can I do probate myself?

Lawpack on March 27, 2020

When someone dies and you’re faced with probate, it’s important to think about whether you employ a professional legal firm to administer the estate or if you decide to do it yourself.

Whether you handle all the tasks involved in administering the estate or use professional advisers is a matter of choice and convenience. Any fees properly incurred are paid out of the estate, subject to the terms of the Will.

Executors can seek professional advice from:

  • A bank
  • A Trust Corporation
  • A solicitor

You can also employ a stockbroker or other adviser to perform specific duties, even if you don’t use a professional to submit the probate application.

Here are some preliminary tips to consider when you’re deciding whether to go it alone:

Liability

As an executor or administrator, you are legally obliged to act in the interests of the estate.

If you pursue the DIY route, you may be personally liable for any mistakes or oversights, or if things go wrong.

If you feel unable to act as an executor or administrator, your best option is to employ a professional legal firm who will take on all the responsibilities on your behalf.

Your time

Make an honest appraisal of your time limits and ability to take on a task that can be complex and very time-consuming.

There are many things to organise when someone dies and it is easy to forget vital steps or become overwhelmed.

Problems

You should always take legal and professional advice if a problem arises that you feel you cannot deal with.

The complexity of the estate

If the Will or the estate is complex, professional advice should be taken.

Some signs where advice should be sought include the following:

  • The estate is insolvent.
  • A beneficiary cannot be contacted.
  • Someone intends to challenge the Will.
  • There is some question of the Will’s validity, or the Will cannot be found.
  • Someone stands to inherit a life interest in (or in Scotland a ‘liferent’ of) the estate.
  • Beneficiaries include children under the age of 18 (in Scotland, 16) and a trust is set up for them.
  • The deceased owned a business or was a partner in a business or owned agricultural property.
  • The deceased was a Name (i.e. an investor) in Lloyd’s of London insurance market.
  • A trust is set up under the Will.

 

Expert assistance

If you want to do probate yourself, then Lawpack is here to help. Our DIY Probate Kit includes all the probate forms you need, plus a 62-page guidance manual written by probate experts to help guide you through the process. The manual also includes template letters and examples of completed forms.

Other information

Probate: Where do I start?

Lawpack on March 27, 2020

When someone dies and before you start the probate process, it’s important to complete some initial tasks to secure the deceased’s property and check on their correspondence.

These tasks should be attended to as soon as possible, in preparation for dealing with the assets and liabilities of the estate.

Your first tasks as executors are as follows:

1. Redirect the post

Change the deceased’s postal address to that of the first applicant – the executor who is to handle day-to-day business and personal affairs.

2. Check on the property

If the deceased’s home is now left unoccupied, ensure that it’s securely locked; that water, electricity and gas supplies have been turned off (if appropriate).

3. Check the insurance policies

Ensure that there are both current buildings and contents insurance policies on the home.

The executors may be held liable by any beneficiary who receives less from the estate than they should have because of a burglary, fire or other loss.

4. Notify the insurers

The insurers should be notified of the death and given the names and addresses of the executors.

5. Remove any valuable items

If there are particularly valuable items at the deceased’s home and it is to be left unoccupied, it may be better to remove them for safekeeping.

6. Open an executor’s bank account

You will eventually deposit the proceeds of assets into this bank account. From this account you will also pay the liabilities and expenses of the estate and distribute the monies under the Will or intestacy.

7. Find the probate documents

Make a thorough search of the deceased’s papers and online records for the documents that will be needed to do probate. These will include:

  • Cheque books
  • Bank statements
  • Savings certificates and other National Savings assets
  • Outstanding bills
  • Share certificates and stockbroker’s details
  • Car registration documents
  • Mortgage papers
  • Insurance and pension documentation
  • Information on jewellery and collectables; for example, insurance valuations
  • Tax assessments, returns and other Tax papers

Once you have completed these tasks, the next task of executors is to identify the deceased’s assets.

You may also need to apply for a grant of representation (in England & Wales) or for confirmation (in Scotland) from the Probate Service.

Whether you require a grant of probate depends not only on the size of the deceased’s estate, but also on the kinds of assets in it.

Find out more on whether you need a grant of representation.

Other information

Executors: what to do if there is a Will

Lawpack on March 27, 2020

How to probate an estate when someone dies and what to do if you’re nominated as executor in the Will.

Many executors may have been made aware of their duties before death and know where the Will is kept should the worst happen. But if there hasn’t been an opportunity to prepare before the death, then the Will must be located to determine who has been named its executor(s).

Locating the Will

If no Will is found at the deceased’s home, it may have been sent to the deceased’s bank, solicitor or Will storage company for safekeeping or to Lawpack’s Will Storage Service.

In England and Wales, the Will may have been deposited at the Principal Registry (formerly Somerset House), in which case a deposit certificate will have been issued on receipt of the Will; the Will can be reclaimed by sending the certificate to:

Record Keeper’s Department
Principal Registry of the Family Division
First Avenue House
42–49 High Holborn
London WC1V 6NP
Tel: 020 7947 7022

If a Will is found, it must be ascertained that it is the deceased’s last Will by making enquiries at, for example, the deceased’s bank and solicitor.

It must bear the signature of the deceased (in Scotland, it must be signed on every page) and of an appropriate witness or witnesses.

Find out more on what to do if the deceased hasn’t made a Will.

What to do if you find a copy of the Will

In England and Wales, probate may be granted on a copy of the Will so if you can’t find the original, you should notify the Probate Registry as soon as possible that the original cannot be found.

The Probate Registry will tell you what evidence is needed to prove that the original Will hadn’t been revoked by being destroyed before death.

In Scotland, if only a copy of the signed Will can be found, it may be possible for the executors to treat the estate as ‘testate’ and proceed to wind up the estate in accordance with the copy Will, but it will be necessary in the first instance to raise an action in the Court of Session in Edinburgh to ‘prove the tenor’ of the original signed Will using the copy.

If this fails, the estate must be treated as intestate and wound up accordingly.

What if there is more than one executor named in the Will?

If the Will appoints only one executor, or if only one person is able and willing to act, a grant of probate can be issued to one person.

If the Will appoints more than four executors, only four of them will be allowed to apply for the grant of probate.

In any estate, some of the executors may renounce their right to apply for probate. Or they may decide not to apply for the time being but to reserve their right to apply in the future so that if, for example, one of the acting executors dies before the estate has been fully administered, the executor with ‘power reserved’ may take his/her place. The same applies in the scenario where the deceased didn’t leave a will.

In England and Wales, if only one executor is taking out the grant of probate, it’s prudent to have ‘power reserved’ for the other executor(s), even if it’s not anticipated that they will want to apply at any stage.

The Probate Registry provides a power reserved form to be completed and signed by the executors who intend to reserve the right to apply for probate.

In Scotland, confirmation is always issued in favour of all executors who have been nominated and who haven’t declined office. An executor appointed in accordance with the terms of a Will is called an ‘executor-nominate’.

No matter how many executors are named, for practical purposes it’s usually easier if one of the executors undertakes the administrative tasks on behalf of them all.

The executors should meet to discuss the practical side of carrying out their executor duties. All official paperwork must be signed by all executors, even if they agree that one of them will deal with the day-to-day administration. This isn’t the same in Scotland where the application for confirmation (C1 Account) only needs to be signed by one executor.

Get expert help with applying for a grant of probate with our Probate Assist service.

 

Other information

 

External links

The types of grant of probate

Lawpack on March 27, 2020

Executors have the power to deal with the deceased’s assets from the date of death.

But if the value of the deceased’s estate exceeds £5,000, then the executors will need to obtain a ‘grant of representation’ in England & Wales – called a ‘confirmation’ in Scotland – to prove their authority to those institutions and authorities that hold assets in the deceased’s name.

For estates that require a grant, executors only have authority to act from the date of the grant of representation or confirmation.

The different grants in England & Wales

There are three main types of grant of representation in England & Wales:

1. Grant of probate

A ‘grant of probate’ is issued if executors appointed under a Will are administering the estate.

2. Grant of letters of administration with Will annexed

If the deceased left a valid Will, but didn’t appoint executors or they are unable or unwilling to act, then a ‘grant of letters of administration with Will annexed’ is issued.

3. Grant of letters of administration

If the deceased died ‘intestate’ i.e. leaving no Will, then the Probate Registry will issue a ‘grant of letters of administration’.

In Scotland, there is only one form of confirmation.

The probate forms

In England & Wales, there are slightly different probate processes involved depending on which type of grant of representation you are applying for, but in practice, the probate forms are all used in the same way.

Different probate forms will be also required depending on whether inheritance tax is due.

The probate forms you will need to complete to apply for a grant or confirmation are as follows:

England & Wales

  • Form PA1 – Probate Application Form: The application for the grant of representation in England & Wales
  • Form IHT 205 – Short Form of Return of Estate Information: Used if the value of the estate is either less than £325,000 or less than £1,000,000 and there is no inheritance tax to pay because of spouse, civil partner or charity exemption

Scotland

  • Form C1 – Confirmation: The application for confirmation in Scotland
  • Form C5 – Short Form of Return of Estate Information: Used if the value of the estate is either less than £325,000 or less than £1,000,000 and there is no inheritance tax to pay because of spouse, civil partner or charity exemption

England & Wales, and Scotland

  • Form IHT400 – Full Inheritance Tax Return: Used if inheritance tax is payable.

 

  • Get all the probate forms you need – plus expert guidance – in our DIY Probate Kit.

 

Who issues the grants of representation?

In England and Wales, grants of representation are issued by the High Court through probate registries.

In Scotland, confirmation is issued by the Commissary Department of the Sheriff Court in the area where the deceased was domiciled at death.

Other information

 

External links

Applying for probate: Completing Form PA1

Lawpack on March 27, 2020

If you’re an executor of someone’s will, you may need to apply to the Probate Registry for a grant of probate so you have the authority to sort out the deceased’s affairs. If there isn’t a will, you may be able to apply for a grant of letters of administration.

Do you need a grant of probate?

This depends on the size of the deceased’s estate and the kinds of assets in it.

Normally, a grant of probate is required if the value of the deceased’s estate (after paying the funeral account) is over £5,000.

Find out more on when a grant of probate is needed.

Applying for a grant without a solicitor

To apply for a grant of probate yourself you need to complete and send a variety of probate forms to the Probate Registry, which outline to the Probate Registry what the deceased’s estate is worth.

Probate forms used to apply for a grant of probate in England & Wales

To apply for a grant of probate in England & Wales, you must complete the following probate forms:

  • Form PA1A, if the deceased died in England & Wales without a Will
  • Form PA1P, if the deceased died in England & Wales with a Will
  • Form IHT 205, if the gross value of the estate for inheritance tax is less than the inheritance tax threshold (£325,000) or is less than £1,000,000, and there is no inheritance tax to pay because of spouse, civil partner or charity exemption.
  • Form IHT400, if the estate is not exempt from inheritance tax

Completing Form PA1 – Probate Application Form

In the probate application form PA1, the following information is requested:

Details of the deceased

  • The deceased’s name, address, occupation and date of birth and death

The Will and executors

  • Is there a Will?
  • Were executors appointed? Who are they?
  • Are any of the executors not applying for probate? If so, why is that the case? If a named executor doesn’t want to apply now but may do so later, the Probate Registry will provide a power reserved letter for them to sign.
  • Is only one executor taking out the grant of probate? If only one executor is taking out the grant, it may be prudent for a non-acting executor to sign a power reserved letter, even if it’s not anticipated that they will want to apply at any stage, in case the acting executor dies or becomes incapacitated before the administration of the estate is complete.
  • Were any gifts made to anyone under 18? If so, the executors (or trustees, if there are any) will hold the gift until the person is 18.

The deceased’s relatives

  • Details of the deceased’s relatives. This will be relevant if there is no Will, as the list of relatives follows the order of entitlement to take out a grant of letters of administration on an intestacy. The list also helps in determining who should inherit where there is an intestacy or a partial intestacy (i.e. where the Will fails to dispose of all the deceased’s estate).

The person(s) applying for the grant of probate

  • Details of the executor(s).
  • Out of all the executors, who is the first applicant?
  • What is the relationship of the first applicant to the deceased? This information is needed for the oath which will be sworn at the Probate Registry on application for the grant. More importantly, in the case of an intestacy, this information verifies that the applicant is the person entitled to take out the grant of letters of administration.

Sending Form PA1 to the Probate Registry

Once you have completed probate application form PA1A or PA1P – along with Form IHT 205 if you don’t have to pay inheritance tax and Form IHT400 if you do – make copies of all of the probate forms and send them to the Probate Registry. Send the original Will and the deceased’s death certificate along with them.

You should also make copies of the deceased’s Will and death certificate for your own records. If you cannot deliver these documents in person at the Probate Registry, you can send them by registered post.

Use our Probate Assist service and get expert help from probate professionals on how to complete the PA1 probate application form correctly.

 

Other information

 

External links

Probate form IHT400 when inheritance tax is due

Lawpack on March 27, 2020

When you’re probating an estate, it’s necessary to work out which probate forms should be completed from an inheritance tax perspective. It’s essential on every grant of probate application to complete an inheritance tax form, irrespective of whether inheritance tax is payable.

When is inheritance tax due on the probate of an estate?

In general, inheritance tax is due if the value of the estate is more than the inheritance tax threshold or ‘nil rate band’:

  • The nil rate band Inheritance tax isn’t due on the first £325,000 of the value of the estate, as it’s taxed at 0%.
  • The taxable band This band applies to the remaining value of the estate over £325,000.

Certain estates can be exempted from paying IHT. Find out more on how to assess whether the estate is liable for inheritance tax.

What probate forms need to be completed?

If you assess the estate and it is liable for inheritance tax, then you must complete Form IHT400, which is valid in England & Wales and Scotland.

If you find out that it isn’t liable for inheritance tax, then you must complete Form IHT205 for England & Wales, or Form C5 for Scotland.

Completing Form IHT400 – Full Inheritance Tax Return

If the estate is neither exempt, nor exempt and excepted from inheritance tax (i.e. Form C5 in Scotland or Form IHT205 in England and Wales are not appropriate), then Form IHT400, which is used throughout the UK, must be completed.

Form IHT400 comprises 16 pages and separate Schedules numbered IHT401 to IHT421. It enables you (and HMRC) to determine whether any inheritance tax is payable. The questions on IHT400 are similar to those on the English Form IHT205 and the Scottish Form C5, but they require fuller details.

If there is insufficient space for all the information asked for, you should attach a separate sheet of paper and include the total on Form IHT400 itself.

Not every Schedule will require completion, depending on the deceased’s circumstances. If the estate includes land or buildings in the deceased’s sole name, Schedule IHT405 should also be completed. If it includes stocks and shares, list the details on Schedules IHT411 and IHT412. Schedules IHT403, IHT418 and IHT409 deal with gifts, assets held in trust and death benefits payable under pension policies respectively. These may not appear to be part of the estate, but they may need to be taken into account in order to calculate inheritance tax.

Schedule IHT404 deals with jointly-held property including land and buildings. Overseas land and buildings and other foreign property should be included in Schedule IHT417.

The inheritance tax on some types of property may be paid by installments. Page 11 of the form includes a box to be ticked, should you wish to do that.

The executors have the choice of either calculating any inheritance tax themselves or leaving it to HMRC to work it out, and the appropriate box should be ticked on page 11 of the form.

All the executors should read the Declaration on page 12 of Form IHT400 and sign it. (Do note that this differs from Form C1 and the Form C5 in Scotland which need to be signed by one executor only.)

If you have any problems completing Form IHT400, the Inheritance Tax Helpline (tel: 0845 30 20 900) can be contacted for assistance in completing the form or you can visit the HMRC website.

Use our Probate Assist service and get expert help from probate professionals on how to complete Form IHT400 correctly.

Other information

 

External links

Applying for probate: Completing Form IHT205

Lawpack on March 27, 2020

When applying for a grant of probate to administer someone’s estate after they have died, you must complete various probate forms and send them to the Probate Registry. For more information on probate see Lawpack’s DIY Probate Kit.

The main probate form to use to apply for probate is a PA1 Probate Application Form. You will also need to complete Form IHT205 if you don’t expect inheritance tax to be due on the estate.

Do you need Form IHT205?

Form IHT205 is used where:

  • the deceased died on or after 6 April 2011; and
  • the gross value of the estate for inheritance tax is less than the inheritance tax threshold (£325,000) or is less than £1,000,000, and there is no inheritance tax to pay because of spouse, civil partner or charity exemption.

Completing Form IHT205 – Probate Application Form – Short Form of Return of Estate Information

In the IHT205 form, the following information is requested:

Gifts

  • Did the deceased make gifts totalling more than £3,000 per year in the seven years prior to the date of death?
  • Did the deceased make a gift, but continue to benefit from all or part of the gift (e.g. the deceased gifted their home to a child but continued to live in it)?

Assets

  • Did the deceased give up the right to benefit from assets held in trust within seven years of the date of death?
  • Did the deceased benefit from assets held in trust?
  • Did the deceased own or benefit from assets held abroad?
  • Did the deceased hold any life assurance policies?
  • Did the deceased’s have any pension policies?
  • What is the gross value of the deceased’s assets including, cash and money held in bank accounts and savings accounts?
  • Did the deceased have any stocks and shares?
  • Did the deceased have any partnership or business interests?
  • Did the deceased have any outstanding debts?

Sending Form IHT205 to the Probate Registry

Once you have completed Form IHT205, along with Form PA1, make copies of all of the probate forms and send them to the Probate Registry. Send the original Will and the deceased’s death certificate along with them. You should also make copies of the deceased’s Will and death certificate for your own records. If you cannot deliver these documents in person at the Probate Registry, you can send them by registered post.

Other information