One of the most difficult aspects of the death of someone close to you is the fact that, on top of the emotional impact, there are so many practical and bureaucratic issues which have to be dealt with. Chief amongst these is handling the probate process, and the complexity is such that it is vital to seek the advice of an experienced law firm when doing so.
Here at Higgins Miller we have the expertise needed to cope with all of the legal ramifications of bereavement, and combine this with a sympathetic attitude and total commitment to our clients. We’re used to dealing with complex areas of the law such as divorce and civil partnership and financial settlement. Guiding people through the probate process is just one of the many difficult parts of dealing with the death of a loved one which we can advise on.
If the person in question left a will then it will be clear exactly how they wished their estate to be divided upon their death. Their estate comprises of all of the assets they leave behind, and even when there is a will to draw upon the probate process still has to apply. To put it simply, ‘probate’ means being granted the legal permission to gather together and value the assets of a deceased person, before passing these assets on to the relevant beneficiaries.
The person charged with handling the probate process is known as the executor. If a will was written, then the executor will have been named within it. If not, then they will be appointed following death, and in most cases they will be the closest living relative.
The first part of the probate process is to be issued with a grant of representation. This is a legal document which banks, building societies and other financial institutions will need to see before allowing you to access the funds of the deceased. You may not need a grant of representation in the following circumstances:
The estate in question is worth less than £5,000 and doesn’t contain shares, land or property.
The estate is being passed directly to a spouse or civil partner in whose name it was jointly held.
The Value of the Estate
The person acting as executor will have to gather all of the information on the assets left behind by the deceased. These might include items such as bank and building society accounts, pensions and life insurance policies, investments and personal belongings such as motor vehicles and jewellery. In all cases, the value at the time of death will have to be established, and this might mean contacting the providers of financial products or an independent valuer such as an estate agent.
The final value of the estate will consist of these assets minus any debts owing at the time of death. These debts might include the likes of loans, mortgages, personal debts and credit cards, and the cost of a funeral can also be deducted. The final value of the estate which is arrived at via this calculation can then be used to determine whether inheritance tax needs to be paid.
Paying Inheritance Tax
The next stage in the probate process involves dealing with inheritance tax. Although, according to the Office for Budget Responsibility (OBR), only 8% of estates are likely to pay inheritance tax during 2017, it is still vital to make sure whether the estate for which you are carrying out the probate process is exempt or not. Estates which do not have to pay inheritance tax currently include those which are worth less than £325,000 and those which have been left directly to a spouse or civil partner. There are also exemptions for estates which are left to certain qualifying charities.
There are also regulations, in place since April 2010, which allow for the unused inheritance tax allowance from a previously deceased spouse or civil partner to be passed on, which effectively raises the threshold to £650,000. As even this brief summary highlights, inheritance tax can be a complex issue, and getting the calculation right is a vital part of ensuring that as much of the estate as possible is passed on as the deceased wished it to be. That’s just one more reason why the probate process is one which is best handled with input from experienced legal experts.
If inheritance tax is owed then form IHT400, which details all of the assets and debts of the deceased, needs to be completed and returned to HMRC. Even if it isn’t owed, a shorter Return of Estate Information form will be required.
Following the forms being submitted to HMRC and the Probate Registry, the executor will need to attend a probate venue or the office of a commissioner of oaths, which is often a solicitor, in order to swear an oath. Once this oath has been sworn, the grant of representation mentioned earlier will be issued. When this has happened the executor can access the relevant assets, pay any debts and distribute the remaining estate amongst the chosen beneficiaries.
The complexity of the probate process and the number of stages which have to be worked through in order to ensure that the wishes of the deceased are met, is just one reason why accessing the right legal help might help to remove some of the stress from the situation. In addition to this, it will help to ensure total certainty that the wishes of the deceased person are met and their estate divided along the lines they wished, and with the maximum amount possible making its way to their chosen beneficiaries. Whether you place the entire probate process in the hands of a solicitor, or simply call upon them to advise at certain points, legal assistance will prove completely invaluable.
If you’re currently dealing with the probate process, or would just like general advice on the steps needed following the death of a loved one, then please contact us on 0161 429 7251, or email us at [email protected]. We’ll provide an initial 20-minute appraisal free of charge and a fixed fee first appointment will cost just £50 (plus VAT). If you require further assistance, then a range of funding options are available, and details can be found here.