Wills within probate

Understanding what a Will can do for you also highlights what may happens once you or a loved one passes away. You get the support you need and get clarity on what may happen once death occurs. Having a Will and not having a Will is important information, especially when regarding probate.

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For both categories the below conditions apply:

1. Any specified transfers, of which their chargeable value does not exceed £150,000 See bottom of list for definition of specified transfers

2. If the deceased holds assets within a trust for IHT purposes and this is classed as part of their estate and the total value does not exceed £150,000.

3. If the deceased has foreign assets and the total does not exceed £100,000

4. The deceased did not give away any property while retaining the benefit of it

5. The deceased had elected that the income tax charge should not apply to:
(a) assets he previously owned in which he retained a benefit or
(b) the deceased’s contribution to the purchase price of the assets acquired by another person but in which the deceased retained a benefit

6. The deceased did not benefit from an alternatively secured pension fund

7. The deceased did not benefit under a registered pension scheme where
(a) the benefit was unsecured
(b) they became entitled to the benefit as a relevant dependent of a person who died aged 75 or over.

When there is a Will

What happens if the deceased has a Will

Executors/administrators will typically hold a copy of the Will before death and will also know the location of the original if they are prepared. Someone should also have the information regarding organ donation and funeral arrangements. All of this information should be known within the first few hours of death.

Organising the funeral it is not the full responsibility of the deceased’s representatives, anyone can take on the task but it is usually left to the person who knew the deceased wishes the best. The representatives will typically make sure that any additional wishes are met within reason. Once the funeral has been managed the person responsible can have the cost settled by the estate.

If the death was unexpected and there was no time for preparation before the death took place, the Will must be found. If the deceased doesn’t keep a record of the will at their home, you will have to check with the deceased’s bank, solicitor or Storage Company. The Will may have been stored with the:

Principal Registry of the Family Division
7th Floor
42-49 High Holborn
First Avenue House
Telephone: 0207 421 8500
The Will can be obtained by these if the Will is registered with them.

If a Will is found and obtained make sure you make enquire with banks, solicitors and storage companies to make sure you have the most updated Will. The Will must have the deceased’s signature and the two witnesses signatures as well.
No formal reading of the Will is not needed as it is not a legal requirement. It is however polite to notify all beneficiaries of their entitlement.

There can be certain confusion with Wills especially when the deceased refers to beneficiaries as groups of people such as ‘My children'.

If the beneficiary dies before the testator the gift to them would not go ahead. However, if the beneficiary is a child and he/she leaves children they may inherit the gift. If there is more than one child it will be shared equally. This can be revoked by stating it in the Will that you do not wish this to happen.

Marriage will revoke a deceased’s Will, unless the Will was created with expectation of the marriage. Divorce on the other hand does not revoke the Will but the former spouse will not receive any gifts or be able to act as the executor.

If there are any tricky parts that the Administrator/executors struggle with, they should seek professional help so that they do not distribute any assets in the wrong way or to the wrong person(s).

Once the ‘Grant’ is received, the Will then becomes a public document. Beneficiaries at this point may not know of any entitlement because the deceased didn’t notify them. This is where the administrator/executor should notify all beneficiaries that they have been left something in the Will. It is impossible to tell the beneficiary at this point the value etc. as the will may still be deemed invalid, no longer enough assets to pay out or the Will could be challenged.

Where there is no Will

If the deceased dies without a Will then he has died intestate and then the estate will be distributed in a specific order in lines with the rules of ‘Intestacy’. The ‘Administrators’ in this situation should apply for the ‘grant of letters of administration’. The administrators are have authority in the following order:

1. Spouse of the deceased

2. Children of the deceased or any issue of a child who has died before the deceased

3. Parents

4. Blood brothers/sisters of the deceased and the issues of either sibling if they die before the deceased

5. Half-brothers/sisters of the deceased and the issues of either if they die before the deceased

6. Grandparents

7. Uncle/Auntie(s) of direct blood and the issue of the either if they die before the deceased

8. Uncle/Auntie(s) of half-blood and the issue of either if they die before the deceased

The maximum number of administrators is four. One administrator may take charge of the administration of the Will but if one of the beneficiaries are under 18 then two administrators must be appointed

What are the duties of a personal representative

When dealing with the deceased’s estate there are a few administrative tasks that should be completed as soon as possible.

1. The deceased’s address should be changed to the main administrator who is handling the day to day administration

2. Make sure any relevant insurance is on the estate’s valuable assets as the administrator my held liable if the beneficiaries receive less than promised due to any damage, loss of property or if it’s stolen. I.e. Home/Contents insurance

3. It is also advisable to open a personal bank account where all proceeds from the assets will be placed. This is also where all money will be distributed from to the beneficiaries in the Will or under intestacy rules.

The administrator should also go through all paperwork they can find of the deceased’s these include but are not limited to:

1. Outstanding bills

2. Bank statements

3. Cheque books

4. Insurance/pension documentation

5. Vehicle registration papers

6. Documents relating to the morgage

7. Paperwork on valuable items

8. Tax/HMRC documentation

9. Share/savings documentation

Once all of this has been done the main aim for the administrator is to:

1. Find all assets and assess their value on the date of death

2. Locate debts of the deceased and pay them

3. Distribute assets to beneficiaries

What if there is more than one executor named on the Will?

Up to four people can apply for the ‘Grant of probate’ if all four are named as the executors of the Will. So if five people are appointed to be the executors of the Will, still only four of them can apply for the grant. If one executor wants to revoke his right to apply for probate they can do this and let another take their place. They can reserve the right to apply for the grant in the future. So if one executor dies the executor who has reserved the right to apply for the grant can now apply and finish administering the estate.

If only one executor is applying for the grant of probate it should be considered carefully for the other executors to complete a ‘Power Reserved’ form with the probate registry. Even if the executors who fill in the form don’t think they will apply for the grant, it makes sense in case something happens to the other executor that makes him unable to complete the administration of the Will.

Regardless of how many executors have been named, for ease of administration, one executor should carry out the wishes. However, all executors should discuss what happens. Any paperwork that is official will need to be signed by all executors that have applied for probate. This should be done even if they believe that one executor will be dealing with the administration.

Other personal representatives where there is a Will

If the Executor of the Will renounces the right to apply for the ‘Grant of probate’ then a substitute executor named in the Will should take control. If the situation arises where there is no executor or the name executor revokes there right, then one of the beneficiaries can apply to act on the deceased’s behalf. If the beneficiary becomes the testators voice then they are then known as the ‘Administrator’ and the grant they apply for becomes the ‘Grant of letters of administration with will annexed’.

If it is the case that a beneficiary wishes to apply for administrative rights then the following priority order applies:

1. A legacy who receives a portion of the residue estate. After all main legacies have been gifted

2. A person representing the Residue Legatee

3. Any other legacy

4. Any other person representing a legacy

5. Creditors

A minor, someone under the age of 18, is not considered old enough to be an executor of the estate. If the only executor is named on the Will is a minor, then the parents of the minor can apply for the ‘grant of letters of administration with will annexed’ on behalf of the minor.

If by the time the minor reaches his/her 18th birthday and the estate is still being administered he now has the right to apply for the ‘grant of probate’.

If no executors are named in the Will and the only person able to administer the Will is a minor then two administrators will have to be chosen. The minor’s parents/guardians will be able to apply for the grant on his/her behalf.