Your guide to Probate. How can we help you...? For life in all its colours. Humphries Kirk LLP

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1 Your guide to Probate How can we help you...? For life in all its colours Humphries Kirk LLP

2 Your guide to Probate When a person dies, someone has to deal with their affairs. This is called administering the estate. If there is a Will If the person who has died leaves a Will, it will usually name one or more people to act as the executors of the Will - that is, to administer their estate. If you are named as an executor of a Will you may need to apply for a grant of probate. A grant of probate is an official document, which the executors may need in order to administer the estate. It is issued by a section of the court known as the probate registry. Humphries Kirk can advise on, and help you apply for, a grant of probate. If there is no Will If there is no Will (known as dying intestate) the process is more complicated. An application for a grant of letters of administration (an official document, issued by the court, which allows administrators to administer the estate) will need to be made. The person to whom letters of administration is granted is known as the administrator. The administrator is the person who has the legal right to deal with the affairs of the person who has died, and is determined by a set order of priority. The administrator will usually be a close relative of the person who has died, if there is one. There may be more than one person who has an equal right to do this. Humphries Kirk will be able to provide you with information on the set order of priority. Explanation of some legal terms you may come across when administering an estate. Personal Representatives (PRs) This means executors or administrators. If there is more than one Personal Representative they must work together to decide matters between them. Disagreements between Personal Representatives can cause expensive delays. Grants of representation When a grant of representation is needed A grant of representation is not always needed, for example, if the person who died: has left less than 5,000 in total; or owned everything jointly with someone else. However, some financial organisations may require a grant before giving you access even to a small amount of money. Usually, a grant of representation will be needed when the person who has died left: more than 5,000; stocks or shares; a house or land; or certain insurance policies. How to get a grant You can ask Humphries Kirk to apply for a grant of representation on your behalf. Responsibilities of Personal Representatives Personal Representatives are responsible for making sure that the estate is administered correctly. If there is a Will, the Personal Representative must make sure that the wishes of the person who has died, as set out in their Will, are followed. If there is no Will, you must follow the rules of intestacy (set out in the Administration of Estates Act 1925). If a Personal Representative acts without obtaining legal assistance they may end up being held personally liable for losses incurred by the estate. For example, if the estate monies are distributed to the beneficiaries and a debt is found months later or an individual makes a claim against the estate, the Personal Representative may have to pay the debt or the Claimant. For more information please refer to the List of Pitfalls for Executors at the end of this Guide. This includes grants of probate (when there is a Will) and grants of letters of administration (when there is no Will). Often people just refer to probate even if there is no Will.

3 Inheritance Tax Personal Representatives are also responsible for finding out if Inheritance Tax is due as a result of a person s death. If it is, the Personal Representative has to make sure that it is paid. Whether Inheritance Tax needs to be paid can depend on: how much the property and belongings of the dead person were worth when they died; the value of any gifts that they gave before they died, and who they gave these gifts to; the value of certain trusts from which the dead person benefited; or which people benefit under the Will or under the rules of intestacy (the beneficiaries). You can find out more by looking at the HM Revenue & Customs website at or by contacting your nearest Humphries Kirk office (details on the reverse of this leaflet) and speaking to one of our probate experts. Likely timescales Dealing with the affairs of someone who has died can take a long time. It is not unusual for it to take up to a year, perhaps longer if things are not straightforward. Many organisations may be involved in the process, for example, banks, building societies, insurance companies and HM Revenue & Customs. The estate cannot be dealt with until all claims to it have been received. Individuals have six months from the date when probate was granted to make claims against the estate. Other things that may affect the time taken are: whether the financial affairs of the person who died were in order; what the person who died owned and where it is; whether the person who died had an interest in a business or a farm; what the will or the rules of intestacy say; whether there are any legal disputes (claims against the estate or claims by the estate); whether Inheritance Tax needs to be paid; and making sure that all HM Revenue & Customs files are closed and that matters relating to income tax, benefits agencies and pensions have been sorted out. Arguments between family members, beneficiaries or Personal Representatives can also delay matters. Any disagreements must be sorted out before the affairs of the person who died can be settled. Costs Charges can vary considerably and can depend on what is involved in administering each individual estate. It is often not possible to know immediately what may be involved and how much advice and help is needed, however Humphries Kirk will be able to tell you what the costs are likely to be before carrying out any work by having a meeting to discuss matters. It s important to remember that the cost of dealing with the estate is usually paid from the estate. However, cost is not the only consideration. It is equally important to work with a solicitor who is approachable and sympathetic, and whose advice you understand and trust. Humphries Kirk is one of the most successful solicitors in the south and beyond - with seven offices in Dorset, consulting rooms in London and Yeovil and a network of trusted lawyers worldwide. A heritage of helping and protecting In over 300 years of looking after the interests of families and individuals we have demonstrated that when it comes to expert legal advice, few firms can match the experience and expertise we can offer. When you come to see us, we make sure that you get to talk to someone who really listens to what you have to say - someone who takes the time to get to know you and your individual circumstances. Only by understanding the complete picture can we give you complete and authoritative legal advice. In the case of probate, we will look after your needs with the dedication, thoroughness and thoughtfulness that the situation demands.

4 Pitfalls for Executors If you want to act as an executor you ought to know your duties and responsibilities before you start acting. Once you start doing anything you will already be responsible. There are many potential pitfalls to be aware of including the following: Debts of the Deceased If you pay out the Estate you may end up paying out of your own pocket if debts such as for milk, etc turn up later. Claims under the Inheritance (Provision for Family and Dependents) Act If you distribute the Estate and then a successful claim is made later under this Act you may end up paying out to the beneficiary from your own money. Inheritance Tax You may have to pay Inheritance Tax before you can obtain Probate. How are you going to find this money? Inheritance Tax on gifts Some gifts made by the Deceased are added to the value of the Estate and Inheritance Tax is payable on the total. A new policy means that there is no longer a time limit so the gifts may not be discovered for many years. If you do not know of any gifts at the time you apply for the Grant of Probate but these are discovered later you may have to pay heavy penalties to the Revenue and you may have to pay the Inheritance Tax personally. Inheritance Tax problems If the residue of the Estate is divided between exempt beneficiaries (such as charities or a spouse) and taxable beneficiaries there are very complex calculations, which are not easy even for professional advisors. Missing beneficiaries What will you do to find them? Under age beneficiaries What will you do with their legacy or share of the residue? Investing money for beneficiaries under 18 You have to act carefully when you invest. Dead beneficiaries What do you do with their legacy? If they were given a share in the residue there are difficult rules to decide what happens to their share. Bankrupt beneficiary You will face claims from the creditors if you accidentally pay money to a bankrupt beneficiary. No Will? Who are the beneficiaries legally entitled? Validity of the Will If anyone is likely to challenge whether the Will is valid it is better to seek legal advice. Homemade Will There may be difficult legal questions in interpreting the wording of these Wills. Trusts in the Will If there is any trust in the Will it will be complicated to deal with the legal requirements. Assets abroad How will you deal with assets abroad? The law in other countries is quite different from English law. You have a duty to collect all money due to the Estate and you may find this difficult. Arranging the funeral This is your responsibility. What will you do if there is a first wife who does not agree with your plans? The house You must work out the type of ownership of the property and deal with it appropriately. You cannot overlook this as it will cause you problems later when the property is next sold. Humphries Kirk LLP

5 Pitfalls for Executors - continued Sales of houses or shares at a loss It is your duty to claim back overpaid Inheritance Tax if you sell at a loss within a certain time. Capital Gains Tax duties If you sell assets of the Estate at a profit you must ensure that things are done in such a way that you reduce the Capital Gains Tax liability for the beneficiaries where this is possible. Transferable Nil Rate Band Where the Deceased has been married before it is your duty to claim a reduction in Inheritance Tax where this is possible. A new Inheritance Tax problem In a recent case the executors of a woman s estate have been ruled to be liable for Inheritance Tax on the value of her pension fund when she failed to take her pension when she was terminally ill. This could cause you a problem even when you think you are dealing with a simple estate with no Inheritance Tax. These are just a few examples of the problems to be considered when you act as an Executor of a Will. Apart from the above you should remember that you are liable for any action, which you take (or fail to take) on behalf of the Estate. The Estate s beneficiaries, who may be your relatives, may sue you if any of the following situations arise: You do not secure the property and loss is suffered You fail to insure the property and it is burnt down in a fire You diminish the estate through unwise investments You fail to pay taxes on the Estate, in which case you may be personally responsible for interest and penalties You sell an asset of the Estate without authority to do so You delay settlement of the Estate unnecessarily or are slow in executing important transactions You do anything which may involve a conflict of interest You delegate decisions to others who have no legal authority in the Estate You approve the breach of duty of another executor Remember it is your duty to deal with the administration of the Estate carefully and properly. Solicitors must be insured and so the beneficiaries are protected. You do not have insurance to cover you for any mistakes.

6 Your guide to Probate Private Clients A personal approach to legal advice This is your life we re talking about - we just want to help you to make the most of it - whatever you choose to do and wherever you want to go. And Humphries Kirk solicitors will be there, by your side, helping, guiding and reassuring you. Did we mention avoiding life s pitfalls whenever possible? That too! We think this sort of service is no more than you deserve - and the very least you can expect when you ask us for help. Talk to us about: For more detailed advice on Probate and how it can affect you and your personal circumstances, please contact your nearest Humphries Kirk office. Arbitration Buying and selling your home Care Is Our Concern (a service for the elderly or housebound) Children Cohabitation Consumer Law Debt Recovery Domestic Violence Inheritance Tax Advice Landlord and Tenant Divorce and Collaborative law Financial Advice Judicial Separation Lasting Powers of Attorney Litigation Living Wills Mediation Personal Injury Tax and Succession Trusts Wills and Probate Bournemouth 1 Southbourne Grove Bournemouth BH6 3RD t: f: e: Crewkerne 17 Market Street Crewkerne Somerset TA18 7JU t: f: e: Dorchester 40 High West Street Dorchester DT1 1UR t: f: e: Parkstone Trevanion House 15 Church Road Parkstone BH14 8UF t: f: e: Poole 3 Acorn Business Park Ling Road, Poole BH12 4NZ t: f: e: Swanage 4 Rempstone Road Swanage BH19 1DP t: f: e: Wareham Glebe House North Street Wareham BH20 4AN t: f: e: International Associates throughout Europe. Faxes and s not to be used for service London (by appointment only) Temple Chambers Temple Avenue London EC4Y 0HP t: f: e: Wimborne (by appointment only) 22a West Borough Town Centre Wimborne Minster Dorset BH21 1NF t: e: For life in all its colours The information contained in this brochure is for guidance only. You should always seek professional advice before undertaking any legal matter. Humphries Kirk Humphries Kirk LLP is a limited liability partnership.

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