Frequently Asked Questions about Probate
What is “Probate”?
This often refers to a Grant of Representation in an Estate. This is a legal document that confirms who has the authority to deal with an Estate after a person dies. It can be called either a “Grant of Probate” where there is a will or a “Grant of Letters of Administration” where there is no will. However, the term “Probate” is often used interchangeably between the different types of Grant.
I am appointed as an executor under a will, what are my responsibilities?
An executor’s responsibilities include ascertaining the assets and liabilities of the estate, reporting the estate to HMRC where there is inheritance tax to pay, applying for a Grant of Representation, collecting in the assets of the estate, settling any debts and expenses and ensuring that the terms of the deceased’s will (or where is no will the “Rules of Intestacy”) are followed regarding the distribution of the Estate.
If I am an executor of an estate. Does that mean I have to pay for the funeral and other testamentary expenses?
No. These are estate expenses and will therefore be payable from the estate (assuming there is enough money in the estate to pay for them).
I cannot find a will for the person that has died. What does this mean?
It is important that you have searched for the will extensively in all places where it could be found i.e. amongst the deceased’s papers, in the deceased’s safe or lodged with a solicitor the deceased used during their lifetime. If there is no evidence of a will then it may be that the person did not make one. In this case the person would be deemed to have died “intestate” and the Rules of Intestacy would apply to their estate. These rules, drawn up by the government, determine who has the authority to administer an Estate and also who will receive it.
I have found a will for the deceased but they married after making it. What does this mean?
Marriage has the effect of automatically revoking a person’s will unless there is specific wording in the will to say that it shall not be revoked by the marriage. If the will has been revoked, then investigations should be made as to whether there is a later will or, if not, the Rules of Intestacy would apply to the Estate. If you are planning to marry then we strongly advise that your will is reviewed. Please contact our Wills, Trust and Probate team who will be pleased to assist with this.
How do I sell the deceased’s property?
If the property is registered in the deceased’s sole name, then the executors (or administrators) of the Estate will first need to apply for a Grant of Representation in the estate. The Grant will need to be lodged with the Land Registry who will then accept the instructions of the people named on the Grant as to its sale or transfer. If the property is not registered at the Land Registry then this will trigger a first registration.
I have been appointed as an executor of a will with somebody else but they have told me they do not wish to take up their appointment. How can I administer the estate alone?
The executor who does not wish to act can either renounce from their role or they can have “power reserved” to them. If they decide to renounce probate then their rights as an executor will come to an end completely. They will be required to sign a Deed of Renunciation, in the presence of a witness, which will confirm their renunciation and also that they have not intermeddled in the Estate. If they decide that renouncing probate is too extreme but by the same token do not wish to play an active role in the administration of the Estate, they may decide to have power reserved to them. The other executor can then apply for the Grant alone. However, the non-proving executor has the right to prove the will at a later time. They can do this by applying to the Probate Registry for a Grant of double probate. Thereafter all documentation will need to be signed by both executors.
My spouse has passed away and all of their estate passes to me under their will – do I pay Inheritance Tax?
No. All transfers between spouses are free of Inheritance Tax.
I am an executor of an estate which seems to have more debts than assets. What do I do?
If an Estate has more debts than assets then it will be considered as an “insolvent estate”. Insolvent estates can be very complicated and there is a strict order which must be followed as to settlement of the debts. If the order is not followed then this could have consequences personally for the person acting in the administration of the Estate.
Acting as an executor or an administrator of an estate can be a complicated and time consuming task. If you require advice or our assistance with acting in the administration of an estate then please do not hesitate to contact one of experienced Wills, Trust and Probate solicitors on 01702 352511.
Author: Laura Hotten