Getting to grips with probate
A step-by-step guide to what has to happen, legally and financially, when someone dies.
12 August 2019
Through our subsidiary Shipleys Probate Services Limited we are accredited by the Institute of Chartered Accountants in England and Wales (ICAEW) to conduct probate.
For those unfamiliar with the term, probate describes the legal and financial aspects of dealing with the property, money and possessions of someone who has died – it relates to applying for a Grant of Probate and administering the estate.
Much of this could be done by anyone, but a very specific part of it, applying for the Grant of Probate or Letters of Administration, were traditionally reserved legal activities – a service which could only be provided by solicitors and banks. However, following a review, the ICAEW became a new, approved regulator.
Now Shipleys has received its accreditation from the ICAEW, we will be able to deal with all non-contentious aspects of probate in England and Wales, including the application itself.
Our probate team will be led by Shipleys partners Steve Foster, Mike Luckett and David Hartles.
If you haven’t been through the probate process before, or you need a quick reminder, here are some of the key things to bear in mind.
Probate ensures that relevant taxes are paid, that the deceased’s assets are collected in, and their debts paid, and, if a will has been made, that the deceased’s remaining assets are distributed to the beneficiaries in accordance with his or her wishes. If there is no will, the estate is distributed under the laws of intestacy.
Property in the deceased's estate held jointly with someone else passes automatically to the other joint party.
The people legally entitled to deal with a deceased’s estate are called personal representatives.
If there is a will naming executors, they become the personal representatives. Without a will, the appointed personal representatives (usually the next of kin) will be called administrators.
Personal representatives can take charge of probate themselves or engage suitably qualified professionals, such as Shipleys.
The first stage of the probate process is to find out if the deceased left a will. If you are liaising with accountants, solicitors, banks or will storage companies, they will need to see a copy of the death certificate and also proof that you are the will’s executor before they release any documents.
Grant of Representation
Applying for a Grant of Representation, which gives the authority to deal with a deceased person’s estate, is the next step. You will need to:
• Complete an inheritance tax form – you or a professional valuer need to calculate how much the deceased’s estate is worth. This will determine how much tax there may be to pay. If inheritance tax is payable, the form will be sent to HMRC and the tax must be paid before you apply for the grant.
• Complete a probate application form – this can be downloaded from www.gov.uk/government/collections/probate-forms. A new online service for simple probate applications is also available at https://tinyurl.com/y4x8cmoj.
• Send your application to your local probate registry.
• Sign and submit a Statement of Truth, together with the original will, which is kept as a public record.
Administering the estate
You can now deal with the deceased’s assets to clear any debts and pay taxes.
As the personal representative you are liable if you distribute the estate to beneficiaries, but a creditor later claims for an unpaid debt. To protect yourself, you should give notice to potential creditors by placing an advert in the deceased’s local newspaper and in the London Gazette, which is the prescribed place to put official notices to ensure that everyone has a public notice to see. For more information see www.thegazette.co.uk/about
Preparing estate accounts
Finally, you can distribute the estate as instructed in the will, or according to the law of intestacy if there isn’t a will.
All beneficiaries should sign a discharge to confirm receipt of their assets or funds.
Residuary beneficiaries – anyone who is given the remainder of the estate (known as the residue) once all funeral expenses, debts, taxes and other gifts have been paid out – will normally sign the estate accounts to confirm they are happy to accept the amount left to them. Residuary beneficiaries are the only people entitled to receive a copy of the estate Accounts.
If you would like to discuss the probate process or our new probate service, please contact David Hartles at firstname.lastname@example.org or your usual Shipleys contact.
Specific advice should be obtained before taking action, or refraining from taking action, in relation to this summary, if you would like advice or further information, please speak to your usual Shipleys contact.
Copyright © Shipleys LLP 2019