PROBATE AND PROPERTY
Probate and Property
Whether a person dies with or without a Will, the deceased’s estate must go through probate. This refers to the process where the deceased’s assets are valued, debts are settlement and the remainder is distributed to family members or interested parties. With testacy, the nominated executor will apply to court for a Grant of Probate. If there is not Will, a next of kin will have to apply to court for Letters of Administration.
Obtaining Probate – if There is a Will
In order to commence probate, the executor must obtain a Grant of Probate from a court to the effect the Will is recognised as legally valid. Once granted, the executor can begin the process of distribution.
Probate will always be required where:
- real property, such as a house, is concerned (however, if there is no real property and the entire estate passes to a surviving spouse, no Grant of Probate is required); and
- cash value of less than £5,000 is concerned.
The effect of granting probate is to provide legal authority to access the deceased’s bank accounts. This is important where the costs of a funeral need to be met.
Obtaining Probate – if There is No Will
If an individual dies without a Will, or the Will is found to be invalid, or no executors are named, their estate will fall into intestacy. In these circumstances, a next of kin can apply to court for grant of Letters of Administration. The person to whom the court grants Letters of Administration is known as the administrator. Eligible relatives to serve as administrator follow a priority order:
- the married or civil partner of the deceased;
- a child of the deceased;
- grandchild of deceased;
- parent of the deceased;
- brother or sister of deceased;
- nephew or niece of deceased; and
- any other relative.
To be finally approved for probate, the probate registry requires an interview to assess the fitness of the nominated executor.
Probate is a legal document that allows the deceased’s assets to be released to one or more people who have the legal authority to act and administer the estate. It proves to the asset holders that they are releasing the assets to the correct and authorised people.
When Probate is required the assets of the estate are essentially ‘frozen’ to safeguard them against an ‘incorrect distribution’ to the wrong people. This means that without the Grant of Probate a property cannot be sold and the deceased’s bank accounts and other financial assets cannot be accessed.
A common misconception around Probate is that it is not required if the deceased made a Will. If there is a valid Will it is called a ‘Grant of Probate’ and if there is no valid Will (intestacy) it is called ‘Letters of Administration’.
- Provide you with a dedicated Case Manager
- Check the validity of the Will or apply the Rules of Intestacy if there is no Will
- Complete the Probate application form
- Prepare the Oath required to be sworn by the Executors and Administrators
- Complete the Inheritance Tax forms (whether tax is due or not)
- Calculate any Inheritance Tax liability
- Apply for the Grant of Probate
Probate Complete Service Includes
Probate Complete Service includes:
Free initial face to face meeting with a local Probate Consultant at home or another location of your choice in England or Wales.
We take full responsibility for getting the Grant of Probate and dealing with the Legal, Tax (excluding VAT), Property and Estate Administration affairs.
We deal with HM Revenue & Customs (HMRC) on your behalf.
Probate Fixed Fee Service can include the following Legal, Tax, Estate Administration and Property matters depending on your requirements;
- Preparing the necessary documentation for the Grant of Probate application
- Carrying out all necessary checks to ensure the validity of any Will in existence
- When there is no valid Will, applying the Rules of Intestacy to the Estate of the deceased to identify the Personal Representatives and Beneficiaries and to establish the entitlement of the Beneficiaries
- Applying to the Probate Registry and obtaining the Grant of Probate
- Ensuring the accurate distribution of the Estate
- Placing all statutory adverts to establish whether there are any claims against the Estate, or arranging Early Distribution Insurance
- Assessing variations to the distribution of the Estate (drafting the Deed of Variation is at an additional cost)
- Completing the following tax forms for HMRC:
- The Income Tax return from 6th April to the date of death.
- The appropriate Inheritance Tax form, either an IHT 205 or IHT 400.
- The Capital Gains Tax return, if required.
- Conducting all correspondence with HMRC relevant to completing the above tax forms.
- Taking any corrective action required by HMRC during the Estate administration process.
- Claiming any relevant tax reliefs or exemptions applicable to the Estate.
- Calculating any Inheritance Tax, Income Tax and Capital Gains Tax that is owed.
- Ensuring payment of any outstanding tax from the Estate.
- Calculating and arranging for the transfer of any Nil Rate Band or Residence Nil Rate Band allowance if available, in order to reduce Inheritance Tax.
- Identifying and corresponding with the Personal Representatives and beneficiaries of the Estate throughout the Estate administration process.
- Identifying and corresponding with all financial institutions and organisations relevant to the Estate throughout the Estate administration process.
- Identifying, verifying and valuing all assets based in England and Wales.
- Gathering all the assets of the Estate.
- Transferring all jointly held assets into sole name, including property held as joint tenants.
- Paying any debts and liabilities from the Estate.
- Preparing the Estate Accounts.
- Distributing the Estate to the Beneficiaries and Trustees of any Trusts created by the Will
If there is a property in the Estate, our Fixed Fee Probate Service includes where necessary:
- Ensuring that any existing buildings and contents insurer is fully aware of the change in circumstances and making sure that appropriate insurance is in place (where insurance is not in place we can arrange cover at an additional cost)
- Setting up a Royal Mail redirect to ourselves during the administration so we can manage all the affairs of the Estate.
For an additional fee, we can also deal with the following:
- Transferring ownership of registered property from the deceased to the beneficiaries.
- Appointing a specialist Conveyancer to register any unregistered land at HM Land Registry, if required.
- We will notify you of any additional fees relating to our property services before we start work on them.