Probate & Estate Administration

Probate & Estate Administration 2017-07-01T18:04:33+00:00

Probate & Estate Administration

What is Probate?

The general term “Probate” means the winding up of a deceased person’s estate. The Executors of the Will have legal control of that process and they can instruct us to help them carry out their legal duties.

The Probate process is the collecting in or transferring of the Estate assets, paying all liabilities and any Inheritance Tax (IHT) and then distributing the net estate to the beneficiaries of the Will (or to the next of kin if there is no Will).

1. Obtaining the original last Will of the deceased.

2. Valuing the assets in the Estate including any jointly owned property. Valuing any debts and liabilities. Values must be specific to the date of death and they form the basis of an Inheritance Tax return that the Executors need to sign off.

3. For all Estates, preparing an Inheritance Tax return or account confirming the valuation of the Estate and the overall Inheritance Tax (IHT) payable. Tax is generally payable over £325,000 of net assets at a rate of 40% (but see separately our sections on Inheritance Tax for more information). Arranging for the payment of any tax before the next stage.

4. Once any IHT is paid, preparing an Oath or form for the Executors to sign to accompany the original last Will to send to the Probate Registry of the High Court.

5. Applying by post to the Probate Registry for a document called the ‘Grant of Probate’ (or called ‘Letters of Administration’ where there is no Will) which document is a ‘ticket’ for the Executors to then collect in Estate assets, sell or transfer property and to settle Estate liabilities. Without the Grant, the Executors have little power to collect in any assets as they do not have their legal authority.

6. Collecting in capital and cash assets, transferring or selling property, collecting in life policy entitlements, selling or transferring shares to beneficiaries.

7. Settling any Estate debts, costs and expenses.

8. Completing an Estate Income Tax return for the period up to the date of death (and for the period of administration if applicable).

9. Preparing a set of Estate accounts to confirm all assets received or transferred, all liabilities paid and to show the net sums or assets due to the beneficiaries.

10. IHT and care fees planning, including preparing of any Deed of Variation to protect the Estate passing to a spouse or beneficiary.

11. Distributing the final amounts and assets.

There are a vast number of side-issues associated with each of those actions listed above, on which advice should be sought to provide support and legal expertise. Such advice can also lead to money savings for Estates and families.

Examples:

  1. Decisions on selling or keeping the family home or a property that is due to be passed to children of the deceased. Capital Gains Tax can be mitigated by advice on how to structure the ownership held by beneficiaries to maximise all allowances.
  2. Arrangements for the family home, in particular the best structure for a child to buy out the share of their sibling.
  3. Protecting assets passing to the main beneficiary(ies). Inheritance Tax, care fees and protection from insolvency and divorce might be mitigated by the preparation of legal devices such as a Deed of Variation which varies the terms of the Will to protect the assets passing to beneficiaries.
  4. Advice for beneficiaries who receive assets to then protect those via an amended Will to maybe include flexible Trusts.
  5. Financial advice regarding retaining assets, cashing them in or splitting them between beneficiaries.
  6. Valuing assets for Inheritance Tax purposes.

Costs for Probate work

Our Probate fees can be either:

  1. Fixed fees; or
  2. According to time spent at hourly rates.

Each Estate and circumstance is different to the next. Families often prefer our time and advice to be charged according to what work and time is spent, rather than a fixed percentage of the value of the Estate. Then we are only paid for the specific work we undertake. Our clients often see this as the best and fairest method. Other clients prefer a fixed cost so that there is certainty – but we will have to factor in what might be uncertainties in the process.

We will usually set out both options and agree to whatever approach is the best for you and your family. Whatever the case, our costs are paid from the Estate at the conclusion of our work or the administration. Unlike most other solicitors or other professionals, all costs are fully itemised so the Executors can check the time spent and costs incurred before approving any account.

Our costs are tailored to the circumstances or to what is required. For example, if the Executors have obtained the Estate valuations and where it is clear there is no IHT to be paid due to the small size of the estate, we could undertake to preprare the IHT return and the Probate papers (the Oath and submission to the Probate Registry) for a reduced fixed fee.

Inheritance Tax (“IHT”)

IHT is a tax that is payable at 40% on the excess value of a net Estate over the IHT threshold which is currently £325,000. Therefore if the net estate (assets less liabilities and funeral expenses) is say £400,000 for an individual, the tax payable could be £30,000.

If you are an Executor it is absolutely essential to obtain advice before completing any Inheritance Tax return or account. There are a number of potential exemptions and reliefs that can reduce the amount of IHT payable. For example, there is a spouse exemption of 100% on the first death if one spouse dies passing the estate in full to the surviving spouse.

On the surviving spouse’s death there is also a potential doubling-up of the £325,000 IHT allowance so potentially increasing the IHT threshold to £650,000. Gifts to registered charities attract automatic IHT exemption and there are certain circumstances where the IHT threshold can be reduced from 40% to 36% depending on the amount of charitable gifts made in a Will.

We advise the Executors and then usually prepare the IHT forms for the Executors to sign off.

IHT mitigation: please see our section on Inheritance Tax Planning. There are steps that can be taken by individuals to potentially save IHT both before death in terms of structuring Wills for IHT planning, and with Lifetime Trust structures and post-death structures using Deed of Variation.

Our team

Experience and expertise

We have conducted many Estates from start to finish either as Executors or as solicitors for the Executors. Our team has all the necessary expertise and experience in dealing with all types of Probate and Trust administration. Our lawyers are supported by a Probate administrator.

Expertise can be a valuable asset for families in dealing with Estate administration, particularly in the ever-changing environment of Inheritance Tax planning.

Our Probate lawyers:

Johanna Knott: an experienced solicitor and a member of the Society for Trust and Estate Practitioners and Solicitors for the Elderly. Contact Johanna at jo@cartmell-solicitors.co.uk. Johanna is based at our office in Chalfont St Giles and is a local resident.

Helen MacDiarmid: an legal executive with years of experience in handling a wide variety of Power of Attorney, Probate and Wills related matters. She is also a member of Solicitors for the Elderly. Contact Helen at helen@cartmell-solicitors.co.uk. Helen is based at our office in Chalfont St Giles.

Jennifer Beaujeux: an experienced legal executive with very sound knowledge in advising clients on all aspects of Power of Attorney, Probate and Wills related matters. Contact Jennifer at jennifer@cartmell-solicitors.co.uk. Jennifer is based at both our Chalfont St Giles office and our Stone office.

Robert Cartmell: an experienced specialist Solicitor having conducted Wills, Probate, Lasting Powers of Attorney and Court of Protection matters over an 18-year period for individuals and couples. He is a professional member of the Solicitors for the Elderly. He is currently appointed Deputy or Trustee on a number of matters. Contact Robert at rob@cartmell-solicitors.co.uk. Robert is based at both our Chalfont St Giles office and our Stone office.

Contact us

To discuss a Probate or Estate Administration matter or to make an appointment with a member of our legal team
Tel: 01494 870075 (Chalfont office) or 01296 747151 (Stone office)

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Our accreditations

Our accreditations