Probate

In this article, private client and Will solicitor, Chris Strogen, looks at what types of assets are subject to probate. What is probate? Probate is the legal term used for sorting out the financial affairs of the deceased after someone has died. In essence, probate gives the persons dealing with the deceased’s estate the legal authority to sell assets and pay debt and distribute the estate to the beneficiaries of the Will. If you appoint a private client solicitor in your Will as your executor and trustee they will still need to apply for probate in the same way as if you appoint a family member or friend as your executor. Probate is designed to protect your estate and to make sure that the estate passes to the people named in your Will and only those authorised to do so in your Will (or a solicitor appointed on their behalf) can action the requesting of probate and then administer probate. Is probate always necessary? Probate isn’t always necessary. For example, if the estate is very small and the estate doesn’t comprise of property or land, you may not need to obtain a grant of probate. It is best to ask a specialist probate solicitor if a grant of probate will be needed and how long it will take to secure probate. [related_posts] What assets are subject to probate? When a person dies their assets are referred to as their ‘estate’. The vast majority of assets are subject to probate. However, some assets may fall outside the estate and therefore not form part of probate. For example , a life insurance policy or pension may not form part of probate, depending on the wording. If assets were jointly owned by the deceased and another person then they may not form part of the grant of probate if the property was owned by the deceased and the co-owner as ‘joint tenants’. That’s because if a property is owned as joint tenants, on the death of the first co-owner the property passes to the surviving owner. This is referred to as the ‘right of survivorship’. The property therefore does not pass by the Will and accordingly doesn’t form part of probate. The situation is different if property or land is owned by co-owners as ‘tenants in common’. When making a Will it is important to understand the different types of legal ownership of property and land so you can make the best decision for you on whether to buy as joint tenants or tenants in common and the legal implications of doing so. If you bought a property with a co-owner and want to convert your joint ownership from tenants in common to a joint tenancy or from a joint tenancy to tenants in common, then it is possible to do so. If an estate includes assets that are overseas, such as a holiday home, it is best to take specialist legal advice on whether those assets will form part of probate. What do you do if an asset is subject to probate? If an asset is relevant to probate then it will form part of the estate for the grant of probate. It is the grant of probate that gives the executors (or the probate solicitors appointed by them) the power to: Discharge any inheritance tax due. Inform banks and other relevant institutions about the death and close any accounts. Sell or transfer assets, such as listed shares, a property or land or shares in a family business. Sort out any leases, such as leases of land or farm or equipment. Pay any debts. Distribute the remaining estate in accordance with the Will. We are Manchester & Cheshire Probate Solicitors For legal help with probate or with a Will or estate planning call Chris Strogen at Evolve Family Law or complete our online enquiry form. Evolve Family Law offices are in Holmes Chapel, Cheshire and Whitefield, North Manchester but we also offer remote meetings by telephone appointment or video call.

When you have suffered a bereavement, it can be hard to navigate what you need to do to sort out a loved one’s estate and their financial affairs. In this article we look at what a grant of probate is and whether you will need to obtain one. What is probate? Probate is the legal process of administering the estate of a deceased person so that assets are gathered in, any debts paid and the estate distributed. If the deceased left a valid Will their estate will be distributed in accordance with the terms of the Will. If the deceased didn’t make a Will their estate will be distributed in accordance with intestacy rules. If there is an intestacy, the legal process of administering the estate is called ‘letters of administration’. Who deals with probate? The task of an executor named in a Will is to deal with probate. Most executors don’t deal with the probate personally but instead ask a probate solicitor to deal with the legal work for them. As an executor they retain overall control of the administration of the estate and give instructions to the solicitor. If the deceased died without making a Will, they died ‘intestate’ and the intestacy rules say who can apply to administer the estate and who will receive the estate. An administrator can ask a probate solicitor to administer the estate on their behalf. What is a grant of probate? A grant of probate is the legal document that gives the executor of a Will the legal authority to act. Without a grant of probate most third parties won't act on the instructions of an executor as they need evidence that the deceased has died and that the person contacting them is the authorised executor or administrator of the estate. How do you apply for a grant of probate? In most situations the grant of probate follows a set path, namely: The executor, or the probate solicitor instructed by them, gets information about the estate, including the assets and any debts The grant of representation is applied for An inheritance tax form is completed and, if necessary, any IHT can be paid The grant of probate is received The assets of the estate are gathered in (for example, shares or property may be sold depending on the terms of the Will) Any debts payable by the estate are discharged (for example, outstanding care home fees or utility bills on a property) The estate is then distributed in accordance with the Will or intestacy rules. Estate accounts are prepared to show the monies and assets received, debts and taxes paid and how the estate was distributed. Some grants of probate are straightforward but others can be complicated. For example: If the named executors in the Will do not get on If the beneficiaries of the Will are potentially going to challenge the speed or work of the executors in securing the grant of probate and distributing the estate If the validity of the Will is challenged If there is a dispute over the Will and questions over whether it made fair financial provision for a dependant of the deceased If there are likely to be complicated inheritance tax, CGT, trust or sale issues because of the size of the estate or the nature of the assets. For example, if the deceased died within a short time of making lifetime gifts or where the estate consists of a large buy to let property portfolio or some assets are overseas, such as a holiday home The family want to change the Will provisions through a deed of variation. [related_posts] Who pays for probate? Some people think that if they are named as an executor in a Will that they have to undertake the obtaining of the grant of probate personally. That isn’t normally the case as Wills enable an executor to instruct a probate solicitor. The costs of the grant of probate and the probate solicitor come out of the estate before it is distributed to the beneficiaries. The probate solicitors’ cost will depend on the size and complexity of the estate. Fixed fee or hourly cost quotes should be made available. At Evolve Family Law we believe it is very important that fees are transparent and publish a price guide on our website. For a bespoke quote please call us and we can look at the work you would like us to do. Is a grant of probate necessary? In some family situations, an executor or a loved one or beneficiary will question if a grant of probate is necessary. Probate solicitors say this question is totally understandable as no one wants to go through unnecessary processes. In situations where the estate is very small a grant of probate may not be needed. Whether you need a grant of probate or not doesn’t depend on whether there is a Will or not or whether a husband or wife is inheriting the entire estate, but rather depends on the size and nature of the assets in the estate. If there is a property to sell, a grant of probate will always be required. If you aren’t sure whether a grant of probate will be needed or not our Manchester and Cheshire probate solicitors are always happy to advise you on if a grant of probate is needed and, if so, the likely probate solicitors’ fees for securing probate for the estate. We are Manchester and Cheshire probate and Will solicitors Evolve Family Law specialise in private client law advice. For advice about a grant of probate or your responsibilities as an executor or whether you can challenge a Will call us or complete our online enquiry form. Evolve Family Law have offices located in Whitefield, North Manchester and Holmes Chapel, Cheshire but our private client and Will solicitors are experienced in working remotely and offer meetings by telephone appointment or video call.

If you have inherited a legacy, whether it is a part share in a house or a cash gift, you are reliant on the executors of an estate to sort out Probate , gather in the assets and then distribute the assets in accordance with the deceased’s Will.   The Executor of a Will The executors of a Will are people chosen by the deceased to handle their Will. The executors could be family members, friends or professionals, such as a solicitor, accountant or the bank.   If the executors are friends or family of the deceased then the executors can hand over a lot of the responsibility for sorting out the deceased’s estate by instructing a probate solicitor to administer the probate and the sale of assets and the distribution of legacies to beneficiaries. Most lay people take this option as they are honouring the appointment made in the deceased’s Will but not leaving themselves open to criticisms about delays in payment of legacies or problems with securing probate.   However, a friend or family member appointed as an executor may not get on with the other executors or with the beneficiaries. The executor may say that they want to sort out the probate themselves, leaving the beneficiaries fearing there will be a delay in sorting out the estate and payment of legacies. In other situations, the deceased may have appointed a bank as his or her executor not appreciating that the bank’s charges for handling the estate may be a lot more than a local Cheshire probate solicitor. The additional administrative charges might be an issue for the beneficiaries as the costs of sorting out probate and administering the estate will be deducted from the estate before the residuary estate, after payment of any legacies, is divided between the residuary beneficiaries.   How do you Remove an Executor from a will? If you think that an executor is not up to the job or you think that they are too slow or maybe acting improperly then a court application can be made. The court can make a wide range of orders including an order to remove an executor.   Cheshire probate solicitors normally recommend that you try to resolve the difficulties with an executor first before starting court proceedings. Sadly, that isn’t always possible and so, as a last resort, court proceedings can be started to secure an order to remove an executor. [related_posts] Avoiding Executor Problems A good private client and Cheshire probate solicitor will discuss the choice of executors when preparing a Will. After all, it is important that the executors are not too elderly or frail to be up to the task and will be able to work with one another.   It is sometimes thought that it does not really matter who the executor is if the executors are just going to appoint a solicitor to sort out the estate for them. It is still important to choose your executors with care and to make sure that they are willing to undertake the task for you.   For assistance removing an executor or if you have any questions about probate or estate planning contact our expert family lawyers today

Often people appoint a friend or family member as an executor in their will to manage their estate, sell assets and pay the debts and tax and to distribute legacies to beneficiaries. It feels like an honour to be asked to fulfil the role of executor (assuming you are asked as it is not that uncommon for people to only find out that they are one of the executors of a friends or loved one’s estate after the deceased has passed away!) but executors can quickly realise how onerous the ‘’honour’’ is. Sometimes, because executors have been personally appointed by the deceased to act as the executor, they feel that they have to ‘’go it alone’’, not realising just how time consuming a task acting as an executor can be or how difficult it is to resist pressure from friends and family to sort out the estate quickly. For executors who feel under pressure or all at sea with what to do with the paperwork, the admin and form filling and handling of queries and demands from beneficiaries, there is help is at hand in the form of instructing a professional specialist solicitor to deal with the estate. Acting with the executors the solicitor will guide everyone through what can be a very upsetting and daunting process. The benefits of an executor getting professional legal help in sorting out an estate is highlighted by the recently reported case of Glyne Harris. He has hit the headlines as he has been ordered to pay about £341,000 in inheritance tax as a result of his personal and legal obligations as the personal representative of Helena McDonald’s estate. How on earth could this liability have been made against Mr Harris? A good question and one I am sure Mr Harris wishes he had asked earlier. Mr Harris paid the majority of the deceased’s estate to a beneficiary on the understanding that the beneficiary would be responsible for payment of the inheritance tax from his legacy. The beneficiary disappeared leaving HMRC pursuing Mr Harris for the £341,000 and with nothing in the estate to pay the tax man. The Court has ruled that Mr Harris is responsible for the inheritance tax bill. That is because a personal representative of a person who dies without a will or the executor of a will is personally liable for paying any income , capital gains tax or inheritance tax due, even if they haven’t received a penny from the estate. What are the top tips if you find that you are asked to be an executor of a friend’s or loved one’s will? If you are asked to be an executor of a will it is a voluntary role. You can decline the honour. It is important to ask who the other executor/s will be. If the other executor is a named professional in a law firm you may feel far more relaxed about your appointment. On the other hand if the other proposed executor is a family member that you know that you will struggle to work with it may be best to tactfully decline the appointment If you are appointed as an executor without first being asked to act , or if your circumstances have changed after the will was drawn up or for any other reason you can decline to act as executor and renounce the role If you want to act as an executor you have the option of appointing a solicitor to handle everything and administer the estate. The solicitor’s fees are met out of the estate. The appointment of a solicitor not only reduces your executor workload but also means that if a mistake is made ( such as paying out the estate to the beneficiaries before the tax is paid ) you can potentially pursue a claim against the solicitor under his insurance If you are the executor of a will it should ideally have been drawn up professionally. Why? If the will isn’t drawn up by a specialist solicitor it can be ambiguous .That in turn can lead to more complexities and time in sorting out the estate and ultimately to more legal expense in resolving the mistakes in the will As well as being personally liable for paying the tax man the executor is also liable to make sure all debts are paid and that the right beneficiaries are given the correct legacy. This can be a minefield if the will is ambiguous or there are a large number of beneficiaries or someone makes a claim against the estate alleging that the deceased didn’t make reasonable financial provision for them in the will. If the executor appoints a solicitor to handle the estate those worries are taken away from the executor. [related_posts] What next? Well firstly don’t panic. The case of Mr Harris is very rare. What isn’t so unusual is the stress that executors find themselves under trying to do a good turn and handle an estate without the time or legal know how. Solicitors can be very user friendly and the cost of a solicitor taking the worry and stress of sorting out the estate administration and paperwork following a friend or loved one’s death can be the best option, you are still the executor but have a professional to share the burden with you. For legal help with executors, wills or probate please contact us.