As family law solicitors, the experts at Higgins Miller are used to dealing with people during some of the most stressful periods of their life. These might include divorce, children disputes and cases of domestic abuse. From experience, however, we know that one of the most difficult things our clients can face is dealing with the legal and administrative workload that is imposed upon them when someone close to them dies. We combine a caring empathetic attitude with a highly detailed knowledge of the legal issues involved in any case, and we’ve put together this probate guide in order to briefly explain what the process of probate involves, and what a client might have to do following the death of someone close to them.
This probate guide is intended to be a quick and simple explanation of what the probate process involves. Given the complexity of some estates, no probate guide is ever going to be able to cover every aspect of the process, but this will provide a firm foundation allowing anyone dealing with the situation to move forward with a degree of certainty.
What is probate?
Probate is the name for the process of dealing with the estate of someone after they have died. This means sorting out their money, property and possessions in a manner which complies with the wishes set out in any will that was written, as well as meeting all legal obligations and dealing with matters such as Inheritance Tax (IHT). When the deceased has left a will then the person or persons responsible for dealing with the estate will be named in that will. They will be known as the executor or executors and dealing with probate will be their responsibility. Some people may opt to work through probate on their own, but the complex nature of some estates, and the ramifications involved if mistakes are made on matters such as minimising IHT, mean that, even with the help of this probate guide, it is generally advisable to seek the advice of legal experts when handling probate. It is not until probate has been granted that the estate of the deceased person can be distributed amongst the various beneficiaries as they wished it to be. Any delay in this process can cause emotional and even financial difficulties, so knowing what it involves via a probate guide could prove to be invaluable.
How the process works
If there was a will which has named executors, then the executor can apply for a grant of representation. This is the legal documentation needed to access things like bank and building society accounts. If there is no will, or the will didn’t name executors, then an administrator will be appointed to deal with probate. In most cases, this will be someone close to the deceased, such as a spouse, child or civil partner. The administrator will first need to apply for letters of administration before being allowed to deal with the estate and handle probate. Once the grant of representation has been granted, the executor will have to assess the value of the estate by drawing together all of the information available. This will mean gathering details of the value of any property owned by the deceased, the money they have in bank and building society accounts and assets such as pensions, investments, life insurance policies and personal belongings. Personal belongings might include items such as works of art, jewellery and motor vehicles, all of which can change in value over time. For this reason a new valuation of such items at the time of death will have to be undertaken by an independent expert.
At the same time as assessing the value of any assets, the executor will have to bring together any outstanding debts owed by the deceased. This could include credit card debts, personal debts, mortgages, loans and the funeral costs. The official value of the estate will be the figure left when the debts are subtracted from the assets.
The issue of IHT is one of the more complex aspects of the probate process and, indeed, of acting as executor. In simple terms, and at the time of writing, an estate which is worth less than £325,000 and has been left to a spouse, civil partner or qualifying charity doesn’t have to pay IHT. There are also rules allowing unused IHT allowance from the spouse or civil partner of the deceased to effectively double the IHT threshold. If IHT is due, then the executor will have to fill in an IHT400 form, which is a lengthy and complicated form detailing the kind of assets and debts mentioned above. Even in cases where IHT isn’t due, the executor will still be tasked with filling in the shorter return of Information form, and both forms should be sent to HMRC.
Once IHT has been paid the executor can apply for probate. This involves filling in an application form and sending it to the nearest Probate Registry. It will have to be accompanied by a copy of the death certificate, the relevant IHT forms, the will left by the deceased and the fee for processing the application. Once the application has been processed, the executor will have to swear an oath at a probate registry or complete an online ‘statement of truth’. Once this has been completed, the grant of representation should be issued within a few weeks.
Once this has happen, the practicalities of probate can be addressed. These include paying any tax owed by the estate, as well as other outstanding debts. To make sure that all debts have been paid the executor should place Statutory Notices in local newspapers asking any of the deceased creditors to come forward. These notices should stay in place for 60 days.
The executor should then prepare accounts which detail assets which have come into or gone out of the estate, as well as detailing the balance due to each beneficiary. Once this has been done and, assuming there are no disputes or outstanding issues, the estate can be distributed.
Even in the case of a brief Probate Guide like this, it’s easy to see that handling probate is a complex and stressful process. Even in less complex cases it can last for more than 6 months, and where an estate involves more complicated issues it can take more than a year to complete. Given the scale of the task and the importance attached to getting every detail right – particularly with regard to minimising any IHT due and properly meeting the wishes of the deceased – it makes perfect sense to access the advice of expert legal practitioners such as those at Higgins Miller. We’ve handled numerous probate cases and it’s very unlikely that a scenario will arise that we don’t have experience of coping with. We’ll explain things in a clear and calm manner, using easily understood language which avoids legal jargon, and help to guide clients through a difficult practical and emotional process as smoothly as possible.
If you’d like to find out more about handling probate, or any other legal issue connected to the loss of someone close to you please call us on 0161 429 7251 or email us at [email protected] We’ve recently passed our Cyber Essential accreditation, something which demonstrates our forward thinking attitude and determination to remain ahead of the competition. Our first 20 minute appraisal is provided free of charge, and we’ll give you a fixed fee first appointment, so you don’t have to worry about how much our advice is going to cost. If you want to explore our wider charging system then please take a look here.