Wills will usually refer to an executor or an administrator. This is someone who can settle the affairs of a loved one or close relative after their death in accordance with their will. Both an executor and an administrator must apply to the Probate Service, which is a section of the Family Division of the High Court, in order to be granted probate or letters of administration respectively. Thus, they will gain formal permission to administer the deceased’s estate.

If the deceased had several wills, all of which comply with the necessary formalities, then it is common for the most recent one to be used.

Executors of wills

An executor is a person who has been named in a valid will. There may be up to four co-executors named in a person’s will, and they may be any persons named by the deceased although often they are a close relative or a friend.

What happens if there is no will ?

If a deceased person has not left any will, or the will is invalid, or there is a valid will but there are no named executors, then the next of kin or a close relative will need to apply for a grant of letters of administration.

There is an order of relationship to the deceased for the priority in which persons may apply to become administrators. For example, beginning with the spouse or registered civil partner, and ending with aunts or uncles.

Probate or letters of administration may not be needed if the estate is valued at under £5,000 or if everything was jointly owned as beneficial joint tenants as the estate will then automatically pass to the other owner. However, if the estate is large then the process of application to the Probate Service requires complex form-filling as well as a personal interview. Alternatively, a solicitor can apply in your stead, and these professionals are allowed to apply by post, rather than in person.

Furthermore, if the estate is complicated or there are many bequests or the terms of the will are imprecise then the executor or administrator may be personally liable for any errors. Therefore, a specialist solicitor’s advice can help with these and other legal issues, such as:

• When part of the estate is to pass to someone under eighteen years of age
• When the deceased’s money or property has been left in a trust
• When the deceased owned property or money abroad
• When the deceased owned a business
• When there is a dispute about the distribution of the estate

In some cases, legal fees may be paid from the estate.

It is common to take legal advice from specialist solicitors when you are handling matters relating to wills and inheritance. Professional solicitors will be able to represent you and look after your best interests.

Probate is the process involved in granting a person or people permission to distribute the assets within a will to the correct beneficiaries.

The majority of deaths with entail the need of an application for a ‘grant of probate’. However, disregarding a number of sneaky loopholes that can allow us to escape probate, there are two circumstances that will exempt a person’s estate from this lengthy process.

• If the total value of the deceased’s assets sit below a particular threshold (usually £5,000).
• If all the assets were jointly owned, and there is legal proof of this.

If you do find yourself in a position where you need to obtain probate, please remember that the process of application does not have to begin immediately following the death.

You can take the time to begin mourning and get yourself together before the legalities begin. However, do note that in complicated cases, the application for probate can take months or even years (in rare circumstances). Because of this it is a good idea to begin the process as soon as possible.

Once you do begin the application for probate, it is highly advisable to employ the help of a probate firm or solicitor. While you could complete the process alone, to do so would usually be ill advised. If you’re worried about the probate cost, bear in mind that there are a lot of complicated forms to complete and mistakes on said forms can be dear, and increase the time of application substantially.

So how much will probate cost?

The probate cost tends to vary considerably depending on the time and effort involved in each individual case.

Many firms and solicitors will base their probate fees upon an hourly rate and an additional percentage of the estates value. This means that the cost increases significantly in accordance with the value of the estate, and the time it takes to complete the application.

While this is a standard template of charges, the system is not without flaws. First of all, a case that turns out to be much more complicated than originally thought could see the probate fees spiralling out of control. What’s more, a probate lawyer can very easily draw out the work so that they are paid for more of their time than is necessary.

An alternative is to hire a firm who will offer a fixed fee for their services. While the initial quote may seem larger than that stated by a solicitor charging by the hour, the peace of mind of knowing from the offset what you’ll pay may well be worth the initial discrepancies.

Either way, it is still advisable to seek legal help in the event of a death. This assistance can ensure that not only is the probate application completed as quickly and efficiently as possible, but that all other pay-outs are correct.

When a person dies many financial issues need to be settled such as bills, mortgages and credit cards. Professional, legal help can ensure that all payments made are correct and therefore as many assets as possible are retained within the rightful ownership of the deceased’s loved ones and family.

This post was written by James Harper on behalf of the Wills and Probate Service. James writes on matters relating to law and the family.

When you die you will need to pass on your possessions and money (otherwise known as your estate) to those family and friends who survive you. The best way to ensure your Estate is divided as you would like is to make a Will. This will enable your loved ones to share out you property and possessions as you wanted. Without a will your assets would be distributed according to the law, and this may not be as you would have liked. It is estimated that 60% of people die without ever making a Will.

Peace of Mind

If you have younger children then you can also state in your Will who will look after then in the event both parents die before they come of age, Having a Will prepared will allow you to have that peace of mind that your children will be looked after in the event of your death.

You can also make decisions about your funeral, whether you would like to be buried or cremated and other details such as music at your funeral. It would bring comfort to those people knowing they are carrying out your wishes.

What if I don’t make a Will?

If you die intestate (without making a will), this can cause problems for those you leave behind who have to deal with your estate. The law has rules to follow when distributing a person’s estate when they have not written a Will. This may not be how you wish for your possessions to be distributed.

Other issues may arise from different family members who may have a claim to your estate. Without a Will disputes may occur and Solicitors may need to be used to resolve any such disputes. This can cause families to come apart and be costly too.

Further, your assets may be unnecessarily taxed by the Government through paying too much Inheritance Tax. This may be avoided with professional advice with regards your financial assets.

Who can make a Will?

You are able to write your own Will and can now do this through the use of DIY will sites. However a will is a complex legal document and this is not advised, especially if you have an estate worth a lot of money. You really should consult a Solicitor or the Citizens Advice Bureau about how to make a valid will which will protect you and your assets. This is especially important if you need legal advice for complicated matters and you want to keep your tax liabilities to a minimum. Remember if the legal formalities for a Will are not followed a DIY Will may not be valid and cause further problems for those dealing with your estate.

How to make a valid Will?

The basic requirements for making a valid Will are:

• You have to be a minimum age of 18
• It must be written down, signed and witnessed by 2 people
• The will has to begin with it stating that this Will revokes all previous Wills
• Previous Wills have to be destroyed
• You have to be of sound mind and be aware of the effects of your Will
• The Will cannot be made due to pressure from any one else

With your financial affairs it may be worth consulting a professional such as a firm of solicitor who would be able to advise you of the most tax efficient ways to distribute your assets. Who can inform you of the Inheritance Tax laws and how to stop your assets from being over taxed unnecessarily.

What to include in a Will ?

Before seeking professional advice you should consider what will go in your Will, this may include:

• Property, possessions, money and other assets
• The beneficiaries, the people who you want to leave your assets to
• Guardianship of any children under the age of 18
• The person who will carry out your wishes, the executor of the Will

The executor of your Will can be someone you choose and name in your Will, otherwise a court can appoint an executor.

Who keeps the Will safe?

Once the Will has been written it should be kept in a safe place and the necessary people should be informed and told where it is. This may be the executor, a relative or friend. Where a Solicitor has written the Will for you, they would normally keep the original and send you a copy; however you may still ask for the original.

How often should I update my Will?

The government recommends you review your Will every 5 years, this does not necessarily mean you will have to change it. Also it is recommended that you review your Will after any significant changes in your life, financial or personal. Events to consider are:

• Getting married, divorced, having a child or grandchildren
• Moving house, selling  or buying new property or other investments
• Adding new beneficiaries or removing ones included previously

Changes to a Will are by ‘Codicil’ whereby additions, amendments or supplements may be added or a completely new Will may be written.

After a person has died, a legal process starts to transfer the deceased’s assets to the beneficiaries of his or her estate. This legal process is known as “Probate” and is undertaken by the executors of the deceased.  The Grant of Probate is a Court Order which is granted to the executors of the will of a deceased empowering them to deal with estate which includes dealing with all assets and liabilities of the deceased, complying with instructions in the will, potentially paying Inheritance tax and ultimately distributing the estate of the deceased.

Who is entitled to a Grant ?

A Grant may only be given to those executors stated in the will of the deceased. In the event the deceased has not left behind a valid will, the next of kin are generally entitled to the Grant provided that they are not illegitimate relatives (sons and daughters excluded) and are over the age of 18 and of sound of mind.

A Grant may be issued to more than one person but the number of executors of the Grant cannot exceed four people.

Who issues the Grant of Probate ?

The Probate Registry office holds the authority to issue a Grant enabling people to manage a deceased’s estate such as selling property, closing bank accounts, dealing with investments and looking after any other affairs.  A Grant issued by the Probate Registry would be a Grant of Representation. Provided the deceased has left a valid will, then upon their death, the Probate Registry will order a Grant of Probate to be given to the executors of that will. Once the Grant of Representation has been granted then the Executors can show this to third party organisations who hold money or assets in the name of the deceased as proof that they are entitled to collect or deal with the money or assets.

Conversely, if a person dies intestate without a will, then a Grant of Administration would be issued to those closest to the deceased as determined by the Court. A grant of administration serves the same purpose as a grant of Probate. It allows the person holding the Grant of Administration to transfer the assets to those who are entitled to them.

All inheritance tax must be paid before the Grant of Probate can be issued and the receipt of having received the payment of the inheritance tax by the Inland Revenue office will be required by the Probate Registry. The inheritance tax on property is payable in instalments but the inheritance tax on any cash assets would need to be paid immediately.

(Note that a Grant will not be necessary if the deceased assets value under £15,000.00. Assets which are held jointly with another will pass automatically by way of survivorship to the surviving owner and will not transfer under the rules of Probate).

How to apply for a Grant

After having acquired and completed the appropriate application forms including the Probate Application Form and Account of Estate, these forms need to be returned to the Probate Registry office along with the deceased’s death certificate and original will. After this, the applicant of the Grant will need to be interviewed by the Probate Registry office where they will ask the applicant to confirm the details provided to them and if there are any further queries or concerns in relation to the Grant.

After the interview, the Probate Registry will issue the Grant after which this needs to be shown to the organisation holding the deceased’s money for it to be released. The Grant obtained is only valid if it bears the seal of Court.

The Probate Registry reserve the right to refuse to issue the Grant if they have any doubts about the validity of the will. In such cases, the Probate Registry may contact the witnesses and any other third parties to investigate the validity of the will.

After the Grant of Probate has been received, the Probate Registry holds no further responsibility towards ensuring the assets are released to the executor.

Duties of the Executor

The executor of a will manages the administered estate of the deceased and therefore all issues relating to the estate and the transfer and sales of any assets will be the executor’s sole responsibility. However, in some circumstances, the executor appointed may be unwilling to execute the will and in such case he or she would need to sign a deed of renunciation which would enable a third party beneficiary or someone else mentioned in the will to be entitled to the Grant of Probate. The executor may also sign a power reserve form which would mean that he would still be able to come into the estate administration at a later date.

A living Will is a form of formal legal expression of wishes should a person not be able to make decisions about their own treatment in the future. This mental incapacity can be as a result of degenerative mental conditions or equally through injury causing unconsciousness, stroke or temporary mental incapacity.

The concept of living wills comes from the Mental Capacity Act 2005 which enables such a statement to be made with legal authority as regards such matters as advance decisions about potentially refusing treatment, including where this would result in death.

If you have not made a living will and are mentally incapacitated, the medical staff treating you will make medical and legal decisions for you.

2 types of Living Wills

These are known as Advance decisions and Advance statements.

An advance decision is a decision to refuse treatment whereas an advance statement deals with any other wishes you may have about how you may wish to be treated short of refusing any treatment.

Of particular importance is the fact that only advance decisions are legally binding, advance statements are not but are to be taken into account when deciding what is in your best interests.

This Act provides provision for certain types of people to make a claim against an estate where they have been left out of a will . In order to be successful the Claimant must be able to show that objectively, the deceased failed to make a reasonable financial provision for them, taking into account all the circumstances of the case.

Depending on the category of person, “reasonable financial provision” can mean different things. The two categories are:

1. Spouse/Civil Partner – here the provision required is based purely on what is reasonable for the Claimant to receive in the circumstances, whether or not they need it for their maintenance.
2. All other applicants – here the provision required must be that which is reasonable for the Claimant to receive for his maintenance. This is obviously a lower standard. Maintenance itself is not defined by the act, but the Courts have construed it to be that which would be reasonable for the Claimant to live on, neither at a luxurious nor poverty stricken level.

Amongst the people entitled to claim under this act is any child of the deceased. This is a general category, whereby no age limit is imposed, so even an adult child of the deceased can claim, providing it can be shown that the deceased failed to provide reasonable financial provision.

Recent case law

In 1980 the case of Re Coventry appeared to limit the ability of adult children making claims against the deceased’s estate. In that case Oliver J stated that it is not enough to simply state that the Claimant is the child of the deceased in needy circumstances and the deceased did not provide for him in his will where there is money in the estate, rather it is necessary to establish some sort of “moral claim” to be maintained by the deceased, a claim beyond the mere fact of a blood relationship, some reason why it can be said that in the circumstances it is unreasonable that no greater financial provision was provided.

Since that time many have argued that the judge had placed a condition on the claim of an adult child, that they must show a ‘moral obligation’ in order for their claim to succeed. This may very well have limited the number of claims made by any adult children in similar circumstances, since they may have believed that their case would not stand up to such a precondition.

However, recently in the case of Illot –v- Mitson & Others [2011] the Court of Appeal reviewed the case law in this matter and have provided a new helpful guide on how to approach cases involving the claims of adult children.

This case really emphasised the Judges’ decisions in Re Hancock [1998], applied in H –v- Mitson [2009] and Espinosa –v- Bourke [1999], which stated that all the factors stated in the Act which the Court needed to consider when deciding whether there was reasonable financial provision have equal weight. No one factor could be used to undermine all the others.

With this in mind the Court in Illot –v- Mitson reaffirmed that which Butler-Sloss LJ said that the 1975 Act does not require an adult child to show in every case a moral or special circumstance to prove that reasonable financial provision was not provided. Rather Re Coventry merely shows that where the facts show the adult child is in employment with an earning capacity for the foreseeable future, it is unlikely they will succeed without some special circumstance, such as a moral obligation. Therefore in an appropriate case the Court is entitled to conclude that the claim should succeed, even if there is an absence of a moral or special circumstance.

The outcome of this decision is that when weighing up the factors to be considered under the Act, though weight may be placed on one side of the argument due to the lack of a moral or special obligation, this does not automatically rule out a claim and if it can be shown that the other side of the argument outweighs the lack of moral or special obligation, then the claim against the estate can succeed.

Probate law implications

It would appear that this case has reinforced the position of an adult child, showing clearly that they are in the same position as any other Claimant who has to prove their case under this Act and that Parliament clearly intended that an adult child should be able to bring a claim, even if he or she could maintain himself/herselfwithout claiming from the estate.

This may well lead to adult children in the future being more confident in making Claims against a deceased’s estate where other factors play an important role.

We can provide a substantive service for clients in this area, including:

• Advice on making a claim against an estate.
• Mediation between the parties to prevent litigation.
• Litigation, should the matter proceed that far.
• Where appropriate, advice on drafting a will to prevent such problems arising from the outset.

This note has been supplied courtesy of S Portnoy of Darlingtons Solicitors, well known solicitors in London. For advice on any aspect of wills, probate or estate administration, please contact Darlingtons on 0208 951 6666.