Probate Questions and Answers
What is Probate?
A Grant of Probate is the legal authority to act for the estate of the Deceased and administer and/or distribute it in accordance with a Will or Rules of Intestacy.
I can’t afford the funeral, can I get help?
You may be able to apply for a Funeral Payment from the Department of Work and Pensions. you can claim the benefit by either calling the Bereavement Service Helpline on 0845 606 0265 between 08.00 and 18.00 Monday to Friday or completing a Funeral Payment (SF200) claim form and sending it to your local Jobcentre plus. The benefit is means tested and any money that you may have to repay the grant from the estate if the deceased has one. If there are funds in a Bank or Building Society account held by the Deceased then Final Duties can liaise with them on your behalf and arrange for the funeral invoice to be settled directly.
I cannot find a will, what do I do?
If the Deceased did not make a Will then you will need to swear an Oath in front of a Notary or Solicitor, you need to be sure that there was no Will before you do this. If you think that there may be a Will but cannot find it then you will need to prove that you have searched for it, this can be done using a specialist service. If the Will is still not found then it will be presumed destroyed and the estate will be dealt with in accordance with the Rules of Intestacy. If the Will is subsequently found then the estate must be redistributed in accordance with the Will. Executor may be personally liable for the error, insurance can be obtained in certain circumstances. If you decide to appoint Final Duties to deal with probate we can arrange for a Will Search and if appropriate insurance for you.
Can I sell the deceaseds house?
If the estate contains any property it can be marketed but cannot sold before a Grant of Probate is given. A Grant of Probate will not be given until any inheritance tax due has been paid.
There is a solicitor as an executor do I have to use them to do probate?
If a solicitor was appointed by the deceased they may expect to be appointed to administer the estate. If Co-Executors and beneficiaries agree that the estate should be administered by an alternative firm or by the Co_executors themselves then the Solicitor Executor may agree to Renounce his/her appointment but isn’t obliged to do so. If you appoint Final Duties to deal with Probate we will liaise with the Solicitor Executor and ask them to Renounce.
There are a number of bank accounts I don’t know where to begin please can you advise?
If you have few minutes to call we can complete an Estate Fact Find with you, we will then be able to tell you how complex the estate is, how long it will take to administer
How do I transfer the ownership of the property without selling it?
The Executors or Personal Representatives of the Estate will be able to transfer the ownership of the Deceased property in accordance with the Will or rules of Intestacy. The transfer can only be done with the Land Registry when a Grant of Probate has been given. Depending on the situation you may need to carry out either an Assent or a Transfer. If you decide to appoint Final Duties to deal with your probate then we will be able to advise which is appropriate in your case.
Where do I get the probate forms if I want to do it myself?
You can access the forms by contacting The Probate Registry or HMRC. They can be downloaded from the HMRC web site along with the Inheritance Tax Forms, you need to be sure to get the correct forms. You can also view a range of DIY Probate forms and letters on our website. *Information provided around Probate and the use of DIY forms should not be regarded as legal advice. It is your responsibility to ensure you follow the most up to date advice. Care should be taken when administering an estate and we advise you to thoroughly research the probate process, latest precedents, HMRC and Probate office requirements.
How much do solicitors charge to do Probate?
Probate Fees vary depending on the firm in question and the size, value and/or complexity of the estate. The Law Society guidance to solicitors suggests that they may charge a percentage of the value of the estate depending on whether the estate contains a property of not. They may also charge an hourly rate for the time taken per hour. Some firms will charge a combination of the two. Some solicitors’ may charge more if they are appointed in the Will as Executor than if they are acting for Lay Executors. We have carried out our own market research and found that the percentage rates can vary from 1-3% and hourly rates may vary between £125-£300.
What is a Trust?
A arrangement whereby people (Trustees) hold assets under the detailed terms that are set of in the Trust document. Trusts can be complicated to administer and it is always advisable to ask for professional assistance.
What is an Attorney?
An Attorney is a person who has authority to act for another person under a Power of Attorney. There are two types General and Lasting. A General Power of Attorney will lapse if the person who gave it loses mental capacity, a Lasting Power of Attorney will not.
Can I remove a person who is an executor?
If the Testator is still alive then they may change their Will with a Codicil or write a new Will naming a different Executor. If the Testator has already died then an Executor can only be removed with their agreement or by the Courts. If you have a dispute with an Executor or you wish to arrange for a Codicil for a Will then we can provide a quote.
Can I remove a bank or solicitor who is an executor?
If the Testator is still alive then they may change their Will with a Codicil or write a new Will naming a different Executor. If the Testator has already died then an Executor can only be removed with their agreement or by the Courts. Some solicitors will Renounce their appointment if other Executors and the Beneficiaries agree. Final Duties have experience of dealing with this type of case, if you call us we can take some details and tell you how complex this might be, how long it might take to administer the estate and what Final Duties would charge to deal with the estate administration for you.
Is inheritance tax payable between husband and wife?
I was given a gift a few years ago over £3000 can you tell me how it will that affect me and the estate?
It won’t affect you, but the estate may have to pay Inheritance Tax if the person who made the gift died within 7 years of making it. If you call we can ask you a few more questions and be able to give you a more comprehensive answer, it will take about 10 minutes to complete an Estate Fact Find and we can then tell you if the gift will have a impact of the estate, how complex the estate is and how long it will take to administer. I will also be able to advice on whether professional help will be needed and how much Final Duties will charge to provide the appropriate service.
My relative has some off shore accounts can that be dealt with at the same time?
A Grant of Probate issued by an English or Welsh probate registry is valid in England and Wales but not Scotland. It may be accepted in some countries, you will need to ask the institution that holds the account. You may need to apply for a Grant of Probate in each county where assets are held.
Call today and we can then tell you if the off shore accounts are likely to have an impact of the estate, how complex the estate is and how long it will take to administer.
My spouses Will was done in the 90’s before the law changed to reduce inheritance tax, can this be changed now that a spouse can inherit tax free?
If your Spouse is still alive then it may be advisable for your Spouse to change their Will, we can carry out a review free of charge and advise you of the options. If your spouse has died then the trustees may agree to vary the Will there are a number of options that they may choose to consider but it isn’t straight forward. Call our free probate advice line for further information.
There is a trust in the will, Will it complicate things?
The existence of a Trust in a Will often does cause complexity. Depending upon the terms of the Trust, many of our clients decide to use our services to help deal with the complexities.
Will I need to go to court?
The Probate Registry is a division of the High Court, if you deal with Probate yourself you will have to visit the court to obtain a Grant of Probate. If you appoint Final Duties then we can apply for a grant of probate on your behalf and you won’t have to visit the court.
Does the Executor named in the Will have to act?
Yes, unless he/s she decides not to. If they do choose to act then you have no choice but to accept them unless you wish to take a case to court.
Can I do Probate it myself?
Yes but in many situations it is advisable to take professional advice as Executors are legaly responsible for the correct distribution of the estate and the payment of Inheritance Tax.
How long will it take to get probate?
It can vary depending on how complex the estate is. Visit the how long does probate take page
Can someone contest the will?
Yes, anyone can contest a Will but they will only be successful if they have valid grounds. Claims are usually made in two ways.
1. That the claimant was dependent upon the deceased and the Will did not make an adequate provision for their future care.
2. That the Will was invalid i.e the Testator did not have the mental capacity needed to make a valid Will or it was forged or made under duress.
If the second is proved then the court may require that an earlier Will be valid or that the Rules of Intestacy should apply.
Do I need to pay the inheritance tax before I can sell the house?
Inheritance Tax needs to be paid before a grant of probate can be issued. A property can only be sold if a grant of probate has been issued. Inheritance tax rules can be complicated and you can find guidance at www.hmrc.gov.uk
Why are you cheaper than other Solicitors?
Final Duties only works with very large and efficient solicitors who have invested heavily in business systems. This means that they can work more quickly and efficiently than some smaller High Street firms.
Can I appoint someone else as executor?
If you are named as Executor in a Will then you can appoint an Attorney to act on your behalf. If you can only appoint them under a General Power of Attorney which will laps if you lose mental capacity to make decisions. If you are elderly or in poor health it may be better to appoint a professional to act on your behalf.
Who would know if I just took all the money as executor?
When a Grant of Probate is given a Will becomes a public document and can be viewed by anybody. A beneficiary may become aware that they have not received a legacy that was due. Charities use a specialist service and will pursue any legacy due to them that they have not received. Criminal and Civil proceedings may result.
Why don’t I have to attend an interview if the solicitors deal with Probate for me?
Applying for a Grant of Probate for a third party is a reserved activity under the legal services act. It enables solicitors to apply for a grant for you without having to visit the court. A person lay only obtain a grant by visiting the court.
The estate is insolvent – what does that mean?
An insolvent estate is defined as an estate which contains less by way of value in assets than it does by way of liabilities. i.e. the Deceased owed more money than he had in property, bank accounts etc. an Insolvent estate can be very complicated and the debts must be paid in a strict order, an Executor that does not follow the order may become personally responsible for paying the debts themselves.
The estate is insolvent, do you deal with insolvent estates?
If I am the executor can my son-daughter-friend do all the work?
Yes they can but you will still be responsible in law for the work that is done.