Losing a loved one isn’t easy, and can be made more stressful by the admin that comes afterwards. Lots of people aren’t aware of how complex sorting out a loved one’s estate after their death can be, and we understand how this can affect those who are grieving.

Some find the probate process to be a welcome distraction in a time of sorrow, while others struggle and find the task too much to handle. That’s why we recommend reading through our probate guide below, to learn more about the steps involved in handling a loved one’s estate when they pass away, and who to turn to should you need professional advice.

One of the main reasons for needing advice, is when a dispute arises. Often there are potential disputes over an estate, including who should inherit what, who is authorised to administer the estate, why a certain person may have been written out of the will, and most commonly, the validity of the will itself. If a dispute arises you will need the legal help of contentious probate specialists.

If you would like to talk to our contentious probate solicitors today, call us free on 0808 164 0808 or request a call back, and we will call you.

What is probate?

‘Probate’ is the term given to the process of someone getting permission to administer a will and estate. A will may be very specific and include instructions to be followed for example, a person’s wishes for their funeral, or it could be a bit vague with not a lot of detail. No matter what a will contains, ordinarily a grant of representation is required to deal with the assets, such as bank accounts, selling property etc. A will is a confidential document and only the executors are entitled to see it initially. Their consent will be needed for the will to be shown to other people, even beneficiaries. However, once a grant has been obtained the will becomes a public document, and for a small fee a copy can be obtained online.

Check to see if a grant of probate has been issued.

Probate also refers to the next step in the process, which would include the distribution of assets as per instructions in the will, sorting out any Inheritance Tax considerations and settling the estate financially. We discuss this in further detail below.

Before applying for probate, there are a couple of considerations:

Has the death been registered?

When a loved one passes away, you will need to officially register their death (legally within five days) and get several copies of their death certificate. You’ll need the death certificate in order to apply for probate, to send out to any organisations that are mentioned or associated with the deceased’s assets such as banks and building societies. It costs £11.00 to obtain a copy of a death certificate in the UK.

Registering a death

Registering the death of a loved one can be done via the Registrar of Births, Deaths and Marriages, at the local register office. You’ll need to provide a medical certificate explaining the cause of death. It may also be helpful to bring other documents such as:

  • Proof of the deceased’s address;
  • Their passport and/or driving licence;
  • Their National Insurance number;
  • Certificate of their marriage or civil partnership (if applicable);
  • Their NHS medical details.

You can follow the instructions online at GOV.UK.

If your loved one died away from their home – in a hospital, nursing home or other facility, the death must be registered with the local district at that time.

Letting government agencies and financial institutions know

It is important that the death is registered with various third parties, e.g. banks so the account will be frozen and assets protected. It also means that any benefits that the deceased was receiving can be stopped and avoid a claim against the estate at a later date for an overpayment.

It can be time consuming and stressful advising all the various agencies. There is now an easier way to do this by using the Tell Us Once service. They will handle this part of the process, and the Registrar you meet with when registering a loved one’s death will be able to help you with this.

Before contacting Tell Us Once, it’s important to have certain information about the deceased to hand. This includes:

  • The reference number you were given by the Registrar at the time of registering the death;
  • The deceased’s name, address and date of birth;
  • Their NI number, passport number and driving licence number;
  • Vehicle registrations;
  • Details of surviving close relatives, e.g. spouse or civil partner, children;
  • Details of their pension scheme, if applicable. This can be public sector, Armed Forces or local government;
  • Any local council services they were receiving, such as housing benefit;
  • If applicable, the name and address of the institution (hospital, nursing home etc.) where they passed away.

The Tell Us Once service usually contacts the following government bodies:

  • HM Revenue and Customs;
  • HM Passport Office;
  • DVLA and DWP;
  • Veterans UK;
  • Local council;
  • NHS (for pension scheme purposes).

It’s also important to alert banks and building societies of the deceased’s passing. There is a service available to help with this; similar to Tell Us Once – the Death Notification Service.

This service will tell multiple financial organisations (any the deceased had associations with) about the death, giving details about the deceased that you provide. These include their full name, the details of executors and administrators (if applicable), their date of birth and death, their last known address and details of their bank accounts.

Once you have registered with the Death Notification Service, if you were to discover further accounts the deceased held at different banks, you can easily get in touch with the service and they will take care of passing the information on.

Is probate needed?

When someone dies, you’ll need to check see if there are assets that don’t require probate to deal with, or that are shared with another person (that may pass over to them automatically).

The main two circumstances under which probate would not be necessary:

  • If your loved one only had a savings account;
  • If they jointly owned land, shares or other monetary items. In this instance, these assets would automatically go to any surviving owners without the need for a grant. Some assets pass outside the estate completely and would not fall under the Will (but may still need to be declared for tax purposes).

Executors should also obtain a copy of the bank statements as they may highlight other assets you were not aware of e.g. dividend payments show that that the deceased had share or information about whether any debts need settlement as part of the probate process. Also they may show that the deceased made gifts in the last 7 years which may be relevant for completing the inheritance tax paperwork. They may also show suspicious transactions which would require further investigation.  

Are you eligible to apply for probate?

Only specific people are eligible to apply for probate:

  • If there is a will, any named executor can apply for probate though if you are named jointly, then ideally all the executors who wish to be involved should make the application jointly
  • If there isn’t a will, then the estate would pass under the rules of intestacy – often this is the closest living relative(s) e.g. spouse or children. Whoever has the highest priority to inherit the estate is also entitled to apply for probate (called letters of administration). However, unlike if the Will names an executor, all the people entitled to apply don’t have to apply together.

Finding the will

After the initial steps of registering the death are handled, the next part of the probate process is usually seeing whether the deceased left a will.

It’s important that the will is dealt with quickly, as it could contain details of desired funeral arrangements and give clear instructions as to how the deceased’s assets are to be distributed between others.

If no will can be located at the deceased’s home, it’s advisable to contact their solicitor or bank to enquire as to whether they made a will, and to obtain copies if they did. You may also want to search the National Will Register.

Who deals with the will?

If an executor has been named in the will, then they are responsible for handling it. However no one is legally obliged to take on the role of executor if they don’t want to do it. If they don’t wish to act, then they can “renounce”. That will then remove them as executor.

If all the executors have renounced or the named executors are no longer alive and there is no replacement executor named, then someone who benefits under the will (a beneficiary) is eligible to apply for the role of administrator, to carry out the duties an executor normally would. People who inherit the residuary estate (which is the part left over once the other specific gifts in the will are dealt with), have the highest priority to apply for the grant. The rules can be quite complicated about who can apply and the order for them doing so. Though there is usually someone who will take on the role – even if that is a creditor of the deceased. 

What if there isn’t a will?

If the deceased did not leave a will, the estate would be distributed under the rules of intestacy. Someone dying without a will means they ‘died intestate’. Intestacy rules can be produce unfair results especially for unmarried partners as they would not receive any of the deceased’s estate under intestacy rules. Even children of the deceased may not inherit anything if the estate isn’t particularly large and it could end up passing to the spouse in its entirety.

Dying intestate    

It can be confusing for those left behind if their late loved one didn’t leave a will. We’ve put together a simple flowchart to show how dying intestate influences the distribution of someone’s estate:

what happens when someone dies intestate

Inheritance Act 1975 claims

We see a lot of surviving partners come forward when they realise they haven’t received anything from a late loved one’s estate. Even if people have been together a long time and consider themselves a “common law spouse”, unfortunately the intestacy rules don’t recognise unmarried partners as eligible to inherit the estate, even if they have children and/or a home together. In this case a person who doesn’t inherit any of the estate may be eligible to bring a claim under the Inheritance Act 1975.

Inheritance Act claims don’t just apply to those seeking to dispute intestacy rules. A person can bring an Inheritance Act 1975 claim if they wish to dispute an existing will, too if it doesn’t make reasonable financial provision for them.

Find out more about how we can help >>

Before applying for a grant of representation…

Before you can progress to the next stage of probate, there are some further tasks that will need carrying out. We’ve listed these below:

Pay off any outstanding debts

Debts could include:

  • Mortgage;
  • Financial agreements/loans;
  • Phone contracts;
  • Credit or store cards.

Please note – if the estate can only cover part of the remaining debt, it does not fall to surviving family members to pay it off. Instead, the estate would be declared insolvent, which can make things complicated. We recommend seeking legal advice in this instance.

Call us free on 0808 164 0808 today.

Sometimes, assets included in the deceased’s estate may be passed on to surviving family members straight away. This may leave insufficient funds to cover any outstanding debts, meaning creditors could apply for an Insolvency Administration Order. If this happens and the order is granted, creditors could force the sale of any assets to square the debts. It’s advisable for any executors to have conversations with creditors, to try and agree a course of action.

Calculating the value of the estate

After the debts have been taken care of, it’s important to calculate the value of the remaining estate (if applicable).

The value of the estate will include:

  • Savings and investments;
  • Bank accounts;
  • Properties and their value;
  • Artwork;
  • Vehicles;
  • Jewellery;
  • Cash;
  • Household goods;
  • Other personal items.

Some assets such as pensions and life insurance policies may fall outside of the estate, depending on how they are set up. Therefore an executor will need to be aware of them but may not have anything to do with them as they will not need to follow the terms of the Will.

Important: Any gifts given by the deceased in the seven years before their death might need to be included as part of the estate’s value. This may face tax implications with HMRC.

Fill out the Inheritance Tax (IHT) forms

Even if you believe the estate’s value doesn’t warrant any Inheritance Tax (as it may be too small), you are still required to fill out and submit an IHT form.

  • Estate value is higher than £325,000 (Nil Rate Band allowance) – fill out form IHT400.
  • Estate value is lower than £325,000 – fill out form IHT205.

You can find these forms and fill them out online. If you are claiming RNRB (additional residence nil rate band – a further allowance for estate left directly to descendants), then you should fill out and submit forms IHT400 and IHT435.

For further information on IHT forms, see GOV.UK.

Apply for a grant of representation

You can do this at the same time as filling out the relevant IHT forms.

If your loved one left a will, you’ll need to fill out form PA1P. If they died intestate, you’ll need to fill out form PA1A. You can complete these online.

Then, submit those forms to the local probate registry with a copy of the death certificate, IHT forms, and the will (plus three copies) and the application fee. If the estate’s value is higher than £5,000 the fee is £273. If the estate is less than £5,000, there is no application fee.

A grant of representation covers the following:

  • Grant of probate
  • Grant of letters of administration with will annexed
  • Grant of letters of administration

A grant of probate only applies if a will exists. A grant of letters of administration with will annexed applies when there is a valid will but someone other than the named executors in the will is wish to obtain the grant. This might be because all the named executors have died before taking out the grant or they don’t want to act as an executor and have renounced. Grant of letters of administration applies when there is no will and the person has died intestate.

Grant of letters of administration

This is known as applying for probate without a will. If the deceased died intestate (without leaving a will), then the person entitled to inherit the estate (often the closest living relative) can apply for a grant of letters of administration. The rules on who can apply for the grant largely follow the same rules as who would inherit the estate but not everyone in the same class has to apply together. For example, if there is no spouse and more than one child, all the children would be entitled to apply for the grant but if they didn’t want to apply jointly, it would be on a “first come first served” basis. Unlike executors who derive their authority from the will so can start acting pretty much straight away once they have the will, where is no will, the grant is needed for the administrators to have the legal authority to act.

The cost of probate

The cost of probate will depend on whether you instruct solicitors to help, or handle the process by yourself:

Handling the process yourself

Handling the probate process yourself will keep costs down, though it is more likely an error could be made and the process not properly followed. For a simple, straightforward estate errors may not occur, but for larger more complex estates with more people involved, we recommend seeking the help of legal experts to make sure the process is carried out without mistakes.

As mentioned above, the Probate fee to apply for a grant of representation in England in Wales is £273 for estates worth more than £5,000. If you require multiple copies of your grant of representation, these cost £1.50 to obtain. The legal costs will range from a few hundred pounds to help you get the grant up to many thousands of pounds to deal with complex estates.

Instructing probate solicitors

If you choose to use solicitors for help with probate, in addition to the court costs to obtain probate, solicitors can charge in a variety of ways:

  • Fixed fees for getting probate;
  • Fixed fees for estate administration;
  • Hourly basis (time spent on the matter);
  • A Percentage basis (a set percentage based on the gross value of the estate irrespective of how long the matter takes. These are generally between 1 – 3% of the estate).

Solicitors’ fees do differ wildly for dealing with probate so it is important that you get proper fee quotes and understand how much you will be charged, and on what basis.

Distribution of the estate

Once representation has been granted, the estate (after debts and taxes have been sorted) can be distributed. Assets will be distributed under the instructions of the will, but if there is no will to take instruction from, the estate will be shared out under the intestacy rules.

Please scroll up to our Intestacy Rules flowchart for further information.

Disputes with estates

It can be quite common for some family members to be upset about the terms of the will or what they receive under the rules of intestacy.

They may try to argue that the will is not valid because their loved one wasn’t “of sound mind” when they made the will or they didn’t know what was in their will when they signed it. They may argue that there was some undue influence from a third party which impacted upon the terms of the will. Other disputes arise around whether the will was properly signed and witnessed. 

Even if there is no issue with the will, sometimes a person doesn’t feel like the will has made reasonable financial provision for them. They may be looked to get more from the estate. Our contentious probate solicitors have helped many individuals claim against a deceased’s estate under the Inheritance Act 1975, brought forward by people including:

  • Spouses;
  • Ex-spouses;
  • Cohabitees;
  • Children;
  • Someone financially maintained by the deceased.

Making a claim against an estate can be a lengthy and distressing process, which is why we take a transparent approach with any claim brought to us. We will work with you to get the best possible outcome, while updating you and providing support throughout your case.

Caveats

You may wish to enter a caveat if you want to challenge a grant of probate application made by somebody else. Or, somebody else may enter a caveat against your own application for a grant of probate.

Upon the payment of a small fee (currently £3) a caveat is entered by the Probate Registry. These are usually entered due to a dispute, normally concerning whether the Will is valid or not, whether the person applying for a grant of probate is eligible to and whether a will actually exists. Once a caveat has been entered, it will remain in place for six months and stops any grants of probate being accepted on that estate. It will automatically expire at the end of six months, unless it is renewed.

A caveat can be extended for six months after the initial period upon payment of a further fee and in theory can be renewed indefinitely. Caveats may lead to legal action needing to be taken to have them removed, and costs will be incurred if this is the case. To try and avoid this, it’s best to try and come to an agreement over the estate before any caveats are entered.

A word from our contentious probate Partner, Debra Burton:

“We understand that it can be very upsetting and distressing to find out that you have not benefitted from a loved one’s estate, especially if you were financially dependent upon them. Equally it can be a very worrying time for those who do inherit the estate but are facing an unexpected challenge or claim. Whilst disputes are ongoing it doesn’t allow any of the parties to move on and grieve properly for their loved one. We will investigate any claims that you have and will talk you through the process, including costs, timescales and the likely outcomes. We will be with you every step of the way.”

Claiming against an estate – talk to us today

If you require legal advice and guidance with an Inheritance Act claim, or want to talk to us about any of the information in this probate guide, call us free on 0808 164 0808 or request a call back, and we will call you.