If you are seeking help, the probate team here at local Fordingbridge law firm, Bonallack & Bishop, can help [following the 2017 merger with long established Fordingbridge Solicitors, Jacksons].
Live in the Ringwood or New Forest area? Need help with probate? Call our experienced team on (01425) 652110 for no strings attached FREE initial phone advice.
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What is probate?
If somebody dies without leaving a Will (which is described as dying “Intestate”) or their will is considered invalid for some reason, their Estate will be distributed under what are known as the “Intestacy rules” – over which they will have absolutely no control. That’s why having a will in the first place is so important.
If they did leave a Will however, it is very important to collect as much information as possible about the Estate in order that it is valued correctly and any assets distributed in the way the deceased intended. The role of probate is to distribute your assets to those named in your will following your death
What to do when someone dies
• Find out if there is a will
The will sets out who the executors are – the people responsible for applying for probate, dealing with the assets within the estate and ensuring that they are distributed in line with the will. If the executors are not family members, make sure they are informed as soon as possible about what has happened.
If there is no will, then the intestacy rules will apply. These set out those who should deal with the estate – called administrators.
Administrators and executors have the same duties and responsibilities and are known as personal representatives (PRs)
• Register the death
This must be done with the Registrar for Births and Deaths for the sub district in which the death occurred. Phone them for an appointment; they will tell you exactly what information you need to take along to the appointment.
Your local Register of Births, Deaths and Marriages (by appointment only) is now at Ringwood Gateway, which can be found at.
0845 603 5637
• Make arrangements for the funeral.
Check the will to see if the person who had died had any special funeral wishes and make sure the funeral director is aware of these.
Obtaining probate – the process
The distribution of the assets contained in your estate will be handled by the executor named in your will, or alternatively by a court appointed administrator in the event that you were to die without a valid will and the intestacy rules apply.
• Identify assets and debts
The personal representatives [PRs] are responsible for finding out what assets the person who has died owned – e.g. bank and building society account, property, insurance policies, shares, premium bonds. Each institution will have to be informed of the death and date of death valuations obtained. Any property and contents will also need to be valued. The PRs are also responsible for obtaining details of any debts outstanding and for ensuring these are paid.
• The grant
In the process of obtaining probate, the grant is a formal document issued by the probate registry that confirms the authority of the PRs to act and deal with the administration of the estate. If there is a will, a grant of probate is obtained; if the deceased died without a will, then a grant of letters of administration is required.
A grant is not always necessary. If the value of the assets is small, there is no house, or all the investments are held in joint names, a grant may not be required.
A grant cannot be applied for until any inheritance tax (“IHT”) due has been paid and a receipt obtained for this, which must be provided to the probate registry. An IHT account giving details of the assets within the estate and the debts must be prepared together with a short oath which the PRs must swear – a quick and simple procedure.
Click here to read more about the grant of representation
• Collecting and distributing the assets
Once the grant has been obtained, it must be produced to all organisations that the deceased held investments with, enabling them to release the money. Any debts must then be paid together with expenses before what is left is distributed to those entitled under the terms of the will. Assets do not necessarily have to be sold or cashed in; shares can, for example, be transferred to those entitled if they prefer to keep them
With very simple estates, this can be relatively simple. But with even medium-size estates, they can be a significant amount of work required to correctly collect and distribute assets in the estate. in particular it often involves the following steps:
• Notifying asset holders (via the original death certificate or certified copy) and advising them that a Grant of Probate is being applied for. This will enable accounts, payment of dividends, etc., to be frozen and should be done as quickly as possible to avoid paying back overpaid sums at a later date. Then sending an original or office copy of the Grant of Probate to the asset holders who will then arrange their release
• Signing an account closure form for banks and building societies to release funds
• Supplying the solicitor of any property buyer with a certified copy of the Grant of Probate or Letters of Administration when the contract is sent out
• Obtaining a Probate valuation of any properties and shareholding the figure from which should be included in the Inheritance Tax forms. Various companies can do this and can provide a figure for Probate valuation purposes
• If the original share certificate cannot be produced, ensuring the completion and signing of an Indemnity Form by the Personal Representative (PR) and a Stock Transfer Form if they are to be transferred into someone’s name
• If there are significant discrepancies between the initial Probate valuation figure and the figure arrived at by the District Valuer, e.g. in the case of increased property prices, they will review the Probate valuation figure submitted in the IHT forms and may revise it, so you will have to wait to hear back on this.
• Paying any Capital Gains Tax (CGT) when the property is sold. With Tenants-in-Common, any co-owner can force a sale since the property is held on what is known as a ‘trust for sale’. If there is one surviving owner who wishes to sell they must appoint another ‘trustee’ in place of the deceased. Only the Land Registry can remove this restriction for it to become a joint tenancy
• Paying any Inheritance Tax (IHT) due prior to the release of the Grant of Probate (or Letter of Administration where there is no Will). IHT on land or buildings can be paid in annual instalments but must be settled as soon as they are sold, which will be stated by the deceased in their Will that IHT and all other liabilities are to be settled out of the Estate before property passes. They may also state that the beneficiary should settle IHT liability themselves in relation to their gift, although this is less common.
Click here to find out more about our probate solicitors can help you.
DIY estate administration – can I look after probate myself?
The simple answer is yes, DIY probate is entirely legal and possible. In strict legal terms you do not need a solicitor for probate. Every year, around 200,000 people deal with probate themselves – getting involved with the probate courts and tax office. DIY probate is certainly growing – partly due to the economic climate.
With very simple estates, or with people who really know what they’re doing, DIY probate is not necessarily not a problem. However an increasing number of people are getting into real trouble with probate when they tried to do it themselves. That is probably the main reason why there has been such a huge increase in inheritance claims – and why High Court saw a huge spike in disputed wills and contested probate cases in 2019 – with a massive 62% increase in claims compared with 2018.
14 reasons why you might need a solicitor for probate
Without trying to scare you, it’s important that you understand the full implications of trying to manage the estate of someone who has died before you take the responsibility on by yourself. Here’s a list of things you need to consider before you start off on your own:
1. Complication. One of the most complicated parts of the whole probate process is making the required returns to HRMC. Even the simplest estates involve a considerable amount of paperwork – up to 23 separate forms. And that’s after you decided which form you need for your particular case. And even completing the main probate form PA1 can be challenging- particularly if the estate your handling is a large one . So do think about whether you have the time and expertise to fill all of these in. DIY probate can run into even more problems where there are complicated issues, even more so when it involves a business or property overseas.
2. Understanding. You have to be able to fully understand the deceased will’s and to manage the estate properly. And there are risks – significant risks in taking on responsibility for probate. An executor is personally liable for compensation which might be due to a beneficiary who has lost out, for example when a will was not drawn up correctly but the executor carries out the wishes anyway.
3. Responsibility. The executor of the will is trusted to deal with large sums of money. He or she is responsible for paying all debts and liabilities belonging to the deceased – whether or not the executor knows about them.
4. Liability. The executor is personally liable for any mistakes which are made in administering the estate.
5. Varying the Will After Death. Not many people are aware that a will can be varied after death. This can happen if all of the beneficiaries agree to it, and it is in all of their interests. Those are the sorts of issues that DIY executors often miss completely, or get very wrong.
6. Stress. Don’t underestimate the sleepless nights involved with the responsibility of collecting up all of the assets and distributing them. This also might all happen at a time when you’re not able to cope with extra work, especially when the person who died was a close relative or loved one.
7. Time-Consuming. As we have made clear above, there’s a lot of work involved in all of this, and you shouldn’t underestimate the amount of time it’s all going to take to complete. DIY probates could end up costing; if for example there’s a delay in paying any inheritance tax due, you could be risking interest charge demands from HMRC.
8. Pressure. Beneficiaries don’t understand how difficult and complex probate can be and often just want their money – immediately. If you cave into pressure from individuals then that might cause many more problems later on, for example if the estate turns out to have a lower value than initially thought.
9. Conflict. This is becoming an increasingly common problem. Do you really want to get involved with arguments between beneficiaries, especially if they are your relatives and friends?
10. Independence. A solicitor is a neutral third party and can help deal with conflicts between the different parties.
11. Tax Knowledge. In addition to knowing about the legal issues, there are lots of tax issues which you have to be aware of. Are you up to date with the legislation? A good solicitor will be, and will understand how to apply the various reliefs, write-downs and allowances correctly to come to the correct figure of inheritance tax due. In many cases, the solicitor will save more in tax than the fee he or she charges.
12. Risk of Potential Disputes or Contests. Remember also that we live in times where people are more willing to sue. Due to this we are seeing an increasing number of executor and trustee disputes in court. If you do decide to go ahead and manage the estate you are putting yourself at risk of being sued.
Click here to read more about executor and trustee disputes
13. Protection. When you start to deal with a probate solicitor, any funds will be held in a protected account. If someone managing a DIY probate makes a mistake, the only option is to sue them if you’ve lost out – assuming of course that they have enough money to pay you compensation. Solicitors by comparison are obliged by law to have an indemnity insurance policy covering them up to a minimum of £2 million, and many more, like us here at Bonallack & Bishop, have a higher level of insurance cover than that. Instructing a solicitor therefore covers you in the unlikely event of things going wrong.
14. Degree of Involvement. It’s not that unusual for solicitors to agree to do part of the probate work rather than taking the whole thing, which allows you the flexibility to still get involved with the process.
Click here to read more about the executor’s role in probate
Click here to find out more about the risks involved and making or defending a contested probate claim
Can my bank handle probate for me?
Among alternative to solicitors handling probate is the use of the probate legal services offered by various UK banks.
Do, however, check on their fees first. In general the probate services offered by banks are much more expensive than those provided by most solicitors.
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