Emma’s Guide to Probate

As a widow and former Probate solicitor, I have both legal training and the lived experience of administering a loved one’s estate but, until my husband died, I did not realise how emotional an Executor’s role is. It is far more than merely ensuring that all the assets of your loved one reach their correct destination.  The ‘deceased’ was no longer just a name on a page of a work document: suddenly it was my soulmate and the father to our children. I found it hard to distance myself from my feelings and get on with what needed to be done. 

With that in mind, I thought it might be useful to write a simple overview of English law relating to administering an estate and an explain some of the terms used and steps you must go through when you need to do work on Probate. I hope that this article can serve as a useful checklist of the key things you should be aware of. Please note, I am no longer a practising solicitor, so this is merely a guide, and each individual case requires legal advice from a qualified practising solicitor.

Initial steps

Emotions are strong in the early days but action is still needed, such as: 
(a)   Locating the most recent Will – as well as specifying who inherits what, the Will may include funeral wishes, such as burial or cremation, and the names of the people whose role it is to deal with the practical side of administering the estate (the Executors).
(b)  If there is no Will – in situations with no valid Will, the estate passes in accordance to the laws of ‘intestacy’, which specifies the individuals who are entitled and in what order.  Who inherits depends on the current surviving family. The people who administer an intestate estate are called Administrators.  Both Administrators and Executors are collectively called the Personal Representatives (PRs).
(c)   Registering the death – a medical death certificate is produced by a doctor or hospital and needs to be taken to the Registrar at the Register for Births, Deaths and Marriages.  They will advise on what other paperwork they need to see.
(d)  Funeral – the funeral is usually organised by the PRs, who will communicate with the family.  The fee for the funeral can usually be paid directly from one of the deceased’s bank accounts without needing a Grant (see below).
(e)   Home insurance to protect the property – insurers must be informed if nobody is living in the property and the PRs should ensure that the property has suitable insurance cover.

Administering the estate & Obtaining a Grant

The Grant is the legal document that gives the PR’s authority to deal with the estate of the deceased.  Some estates do not require a Grant, for example: either if all the assets are jointly owned and pass by what is called ‘survivorship’, meaning they will automatically go to the surviving joint owner; or if the value of the estate is very small.
Although you can apply for the Grant and administer the estate yourself, many people instruct a solicitor for expert advice and to not have to deal with the paperwork themselves.  The paperwork that must be prepared to apply for a Grant includes:

a.     HMRC inheritance tax form – even if there is no inheritance tax due, it is necessary to complete a form to evidence that no inheritance tax is due.
b.     Valuations – the property, valuable personal possessions and business and/or agricultural items should be formally valued.
c.     Oath – this is sworn by the PRs to confirm they will correctly administer the estate.
d.     Payment of inheritance tax – there may be instalment options available but the tax due must be paid before the Grant is issued.

Once the Grant is issued, the PRs must ensure that all the assets reach their correct destination.  In legal speak this means transferring the items to each beneficiary who inherits them.  There is a specific order of priority for which gifts must be paid first, and the ‘residuary estate’ is the remainder of the estate after all the specific gifts and legacies are paid.

Finalising the estate

During my years in practice, clients sometimes expected the estate to be magically completed when all the assets had been given to the correct people.  However, it is important that the PRs conclude the estate correctly.  Extra matters that must be considered are:
a.     Statutory advertisements – placing the appropriate advertisements can limit the PRs liability for any debts in the estate that might arise over time.

b.    Council tax – any property council tax exemption/discount needs to be claimed.

c.     Income and capital gains tax – these extra taxes need to be reported to HMRC for the administration period (i.e.: the period between the date of death and the end of the estate administration), and each beneficiary should be told what if any tax there may be on their inheritance.
d.     Estate accounts – showing the value of the assets at the date of death, any income and capital gains during the administration period and the distributions and transfers that have been made.  Once signed by the residuary beneficiaries, these evidence the agreement to the estate distributions.

It is important that the end of the estate administration is completed properly and records kept.  This is vital if the deceased was the first spouse to die or had a trust in their Will, as the Will and Estate Accounts will be needed in the future.

Emma’s 5 things you need to know about Probate:

The Grant is an important document: it evidences who administers the estate.

Inheritance tax rules are complicated: instructing a specialist solicitor to check all the relevant reliefs are applied for ensures you should not pay too much tax.

Dealing with Probate can be emotional: a professional can help to lessen the emotional burden of having to endlessly inform people about the death.

The PRs are liable if the tax return is not correct: Solicitors can bring peace of mind about what is needed in the forms.

If you instruct a solicitor, use a specialist: the main organisations in England are the Society of Trust and Estate Practitioners (STEP) and Solicitors for the Elderly (SFE).

Doing a job badly and having to get someone to sort it out can be much more expensive than instructing someone to help you do it properly in the first place.

If you are feeling overwhelmed while going through the probate process. Why not check out my 1:1 sessions to help give you support and find some inner calm .