A Guide to Wills and Probate

As you read this, I appreciate that you may be feeling a whole array of emotions: shock; upset; anger; monetary worries to name just a few. People deal with grief in different ways, just as they approach the Probate process in different ways. Some like to keep busy, whilst others wish to concentrate on the funeral and address issues of the deceased estate afterwards. There is no right and wrong way.

Initial Steps

One Stop Service  Once you have been given a Death Certificate, you will be able to register the deceased death with the local registrar. At this appointment you will be offered the opportunity to complete the Government  ‘One Stop’ Service called ‘Tell us Once’, which I would recommend. This service notifies the Department for Work and Pensions, HMRC and the local authority to cancel any benefits they provided. You will need to take with you the deceased Date of Birth, National Insurance Number, Driving licence and Passport number.

Is there a Will?  It is important that you consider whether the person who has died left a Will and if so whether this is the most recent Will. This is important to determine at the outset, even if you choose personally to deal with the administration of the deceased estate after the funeral. A Will could include Funeral directions of the deceased and whilst not legally binding you need to know about these before the funeral takes place.

A Will is also likely to appoint an Executor or Executors. An Executor is the person appointed in the Will to ‘wind up’ the deceased estate by establishing the nature and extent of assets and liabilities including, funeral and testamentary expenses and any monies due to HMRC and thereafter distributing the Will in accordance with the terms of the Will. There is no requirement on an Executor who is appointed in a Will to accept the role. The Executor can decline or ‘renounce’ acting as an Executor as long as they have not ‘Intermeddled’ in the deceased’s estate.  Examples of ‘Intermeddling’ will include disposing of assets, receiving monies in respect of debts due to the deceased. The organising of a Funeral will not be considered as Intermeddling.

If no Will has been left, or if the Will is incomplete or invalid, the deceased is considered to have died ‘Intestate’ and an Administrator needs to be appointed. An Administrator will perform the same role as an Executor however the assets in the estate will need to be distributed in accordance with the Statutory Rules of Intestacy.

Common questions

Who pays for the funeral? The costs of the funeral are paid from the Estate, subject to their being sufficient assets within to cover these. If monies in the estate do not cover the cost of the funeral, then the person giving instructions for the Funeral and whom has signed the client arrangement with Perry and Phillips will be held responsible for monies due. Upon the deceased bank being notified of the death, the bank will place an immediate restriction on the account preventing further transactions. An exception to this is that the Bank usually agrees to pay the costs of the Funeral directly to the Undertakers if requested to do so and if they are provided with a copy of the Undertakers’ bill of costs.

Who pays for Solicitors Costs? Solicitor’s costs are paid by the Estate, again unless there is insufficient money within the estate to cover the cost of them, ie if the estate is insolvent. If I am instructed to assist in an Insolvent estate, the Executor or Administrator, the person instructing me, would be responsible. If Terry Jones Solicitors are instructed to complete the ‘winding up’ of a deceased estate and the instructions are that all the assets are paid directly to us, I would not usually ask for money on account of our costs, only disbursements, such as the cost of Court fees for obtaining a Grant of Probate/ Letters of Administration, currently £155.00 (December 2016). I find that this greatly assists the Executors / Administrators in the probate process.

The next steps

The Role of acting as an Administrator / Executor can be more complex than first thought. Care needs to be taken to ensure that the estate of the deceased is correctly administered as failure to do so correctly, could result in the Administrator / Executor being held personally liable.

An Executor or Administrator may choose to act themselves in administering the estate or alternatively appoint a Solicitor to assist with some or all aspects of the process. An estate is calculated on the value of the estate at the date of death. It is important to gather details of all Assets and Liabilities of the deceased, to calculate the value of the estate and to determine whether Inheritance and other Taxes are due to be paid to HMRC.

An Executor / Administrator will also need to establish whether a Grant of Probate or Grant of Letters of Administration (if the deceased died intestate) is needed. This is dependent on the individual estate and the organisations holding the assets of the deceased.

What I can do to help?

There are many advantages of instructing a Solicitor:

• You can be assured that the estate will be administered correctly and in a timely manner
• Where appropriate I can complete a Will search, to ensure that no further Will has been executed by the deceased.
• Where the Administrator / Executor are uncertain as to the extent of the assets, I  can arrange an Asset search to ensure that all assets, even those investments taken out many years before are located, as if Assets are discovered years later, these would need to be addressed and it may be necessary to revisit the issue of Taxes due to HMRC.
• Likewise where the extent of the deceased liabilities are uncertain, I can complete a Liability search to determine all liabilities owed by the deceased. If this is not undertaken and a liability comes to light after the deceased estate has been distributed, the liability can fall upon the Executor / Administrator to settle. Even where you can be certain that the deceased was not in debt ie credit / store cards, liabilities can still be owed by the estate for the overpayment of Pension and other benefits.
  

TAX: No one likes to pay more tax than they have to. Inheritance Tax is a complex matter and once the threshold is exceeded Inheritance Tax is due at 40%. It may be possible to reduce the amount of tax payable in an estate by not only using the deceased’s personal  allowance but by also using the Nil Rate Band of a deceased spouse. Further, in April 2017 the Government has announced that there are to be changes in Inheritance Tax with the introduction of the Residential Nil Rate Band. This is available in estates where property is left to children and descendants of the deceased. It is likely that most Wills drafted before and some during 2016, will not have taken into consideration this residential tax allowance. I can assist in suggesting changes which can be made to the terms of the Will after the death of the deceased, subject to agreement by all parties involved, to ensure that this valuable Tax allowance is not lost. This may even result in a greater saving to the Estate than the cost of instructing a Solicitor.

The Administration of the estate of the deceased after death can be a daunting process. Rachel and her team pride themselves on providing the best possible service to all clients in difficult and emotive times. Like ourselves they are passionate in what they do and compassionate in their approach to their clients.

As already stated, we would always recommend seeking the advice of a Solicitor to ensure that the Probate process is completed correctly and as efficiently as possible. Should you wish to discuss matters with Rachel and her team, you can contact her at the Bridgnorth office 01746 768748 or rachelw@terry-jones.co.uk