Probate: a quick guide for executors

When somebody dies the process of tying up their affairs sometimes includes applying for ‘Probate’. This process involves valuing their assets and liabilities (such as loans repayable for example) and investigating if inheritance tax will be payable.

Probate is not always necessary, for example if all the assets are joint assets passing to the spouse or if the estate is very small.

Where probate is required the executor(s) or their advisor must lodge the above information with HM Revenue & Customs or the Probate Registry as appropriate in the circumstances and settle any inheritance tax due.

Provided everything is in order a ‘Grant of Probate’ will be issued.

When Probate is granted…

The Grant of Probate authorises the executors to deal with the deceased’s assets. This includes:

  • Calculating and paying any taxes due, including income tax and capital gains tax.
  • Paying any debts, such as loans or funeral expenses.
  • Collecting any monies due to the deceased.
  • Safely banking and accounting for any cash.
  • Cashing any investments/or transferring them to beneficiaries (as appropriate).
  • Selling the property/transferring the property.
  • Arranging for legacies to be paid to beneficiaries named in the Will.

These activities vary widely, depending on the size of the estate, the number of beneficiaries and the complexity of the circumstances.

For example, if everything is passing to the deceased’s husband or wife there will be fewer issues and most assets, such as the home, may simply be transferred.

If various people are inheriting, then it is likely that assets such as property will need to be sold – or if the deceased had complex debts or business affairs, the process can be more drawn out.

When all debts and legacies have been paid and the tax position as been finalised the remainder of the estate, the ‘residue’, can be distributed to the ‘residuary beneficiaries’.

This marks the end of the process.

If you are named as an Executor…

You, with any co-executors, have a responsibility to protect the estate and act in its best interests.

This includes securing and insuring the property and all assets, realising the best price for assets, paying all taxes due, collecting any debts due to the deceased and completing forms.

Most executors choose to appoint a solicitor to advise and assist with probate, as there is often a lot to do, including form-filling and dealing with banks etc.


Wills

  • Will drafting
  • Review of existing Wills
  • Advice re provision for children, second families, spouses and civil partners, unmarried partners and other family members
  • Advice re charitable gifts
  • Advice re foreign and business assets
  • Advice re Will trusts
  • Codicils
  • Inheritance Tax advice

Trusts

  • Advice re Trust creation and ongoing management
  • Preparation of trust deeds and other trust documentation
  • Declarations of Trust
  • Termination of trusts

Probate and Administration of Estates

  • Advice re the terms of the Will or intestacy rules where there is no Will
  • Obtaining values for the various assets and liabilities in the estate, notifying the various institutions and obtaining all necessary estate information
  • Obtaining a grant of probate or letters of administration as appropriate
  • Dealing with and advice re Inheritance Tax, Capital Gains Tax and Income Tax, liaising with HMRC
  • Notifying and liaising with the beneficiaries of the estate
  • Preparing a deed of variation or a deed of disclaimer in relation to the estate
  • Selling or transferring the various assets due to the beneficiaries
  • Dealing with foreign assets and Wills
  • Advice re estate disputes and claims against an estate

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