Probate: What to do when someone passes away

When a loved one passes away, quite often it is very difficult to know where to start.

It is the duty of the person appointed by Will (known as the Executor) or if no Will was made, the next of kin (who will be known as the Administrator) to take control of their financial affairs after they pass away. It will also be that person’s job to carry out the wishes of the decedent as stated in their Will (if they made one), as well as making outstanding payments, settling debts and making sure everything is sorted. This process is known as Probate.

But what steps do you need to take if you’re nominated as the executor? And what needs to be done when someone passes away without a Will? If you’re starting out on the path to tying up someone’s financial affairs, this blog runs through what you can expect.

Do I need Probate?

Most likely, yes.

If you were nominated as the executor in the Will, you will still need to apply for a Grant of Probate in order to be legally certified to carry out the deceased’s wishes and settle any outstanding debts.

If someone has died without appointing an executor, perhaps because they didn’t leave a Will, didn’t specify any executors or their Will is invalid, you will need to apply to for letters of administration at the local Probate Registry and become the ‘administrator’. This allows the next of kin (e.g. if you are a child or partner) to take responsibility for the deceased’s financial affairs.

Probate will not generally be needed if the value of the person’s estate is less than £5000. If this is the case, rather than applying for Probate you will simply need to get in contact with the organisation holding the money.

How do I apply for Probate?

The first step is to work out the extent and the value of the estate – this can be done by contacting the various asset holders (banks for example) for a value of any accounts as at the date of death. It is often advisable to get a professional valuer to do this if there is property involved. Once you know what you are dealing with, you can apply for a ‘grant of representation’ that allows you to legally take control of these assets.

Quite often applying for probate can be a minefield, and it is important to seek proper legal advice on the process. Here at Devonalds we have over thirty years of experience of dealing with all estates from small to complex. We can assist with the probate application and also for the full estate administration process, or alternatively if you provide us with the figures we can act on a fixed fee basis for a ‘Grant only’ application, where you give us the figures and we prepare all the necessary probate documentation before we submit it to the Probate Registry.

Once the formal document to apply for probate has been prepared (the ‘Oath) you will need to arrange an appointment at another solicitors to go and swear an oath, i.e. sign it in front of a solicitor.

The completed application will be sent to your local Probate Registry. When this has been done and your application is successful, we will normally receive the grant within 4-6 weeks, but this can vary depending on the complexity of the case.

Once granted, what happens next?

Any outstanding debts or bills the decedent had must be settled. If applicable in larger estates, any remaining inheritance tax also has to be paid– the Probate Registry will notify how much when they grant the probate or letters of administration.

Once the remaining payments have all been dealt with, the next step is to distribute the assets according to the person’s Will. The grant of representation allows us to contact banks and building societies on your behalf and have the assets they hold released to us. We will then be able to distribute the assets as required.

If the person died without making a Will, this is referred to as dying ‘intestate’. If this is the case, it means that their assets must be divided up according to the laws of intestacy. As the administrator it will be your job to facilitate this.

When should you get legal advice?

A solicitor can help you through the whole process, from obtaining the grant of representation all the way through to carrying out the probate process. However, there are some circumstances in which it is essential to enlist the help of a legal professional. When someone has died and left an estate behind, there are a variety of potential circumstances that can complicate the proceedings, and the legal standing is not always clear. For example, it’s best to take legal advice if:

• The Will is invalid
• The instructions given in the Will are unclear
• The estate is particularly large or the portfolio of assets is complex
• It is likely that disputes will arise over the estate
• The estate includes foreign assets or property.

At Devonalds Solicitors, protecting the interests of clients is our priority, and our Wills & Probate specialists have years of experience with all aspects of estate planning and administration. When a loved one passes away, it can be stressful to have to consider the probate process on top of it all. We can help to alleviate the stress during this difficult time – if you need assistance, are unsure of where you stand or have questions about Wills & Probate, get in touch today.