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Help for Executors in gaining Probate. Free Guide

I get asked quite a lot about what to do when someone dies and you have been nominated as an executor. Now I am not a Probate Lawyer, I write Wills which is a totally different process and skill set. For most estates the process is quite straight forward and I have listed the duties of an executor in another post.

This week a friend of mines father died quite suddenly. He immediately thought of me when he wasn’t sure what to do. His mother was obviously distraught and he and his brother were trying to sort things out. I talked him through the basics of what to do the first being to contact the probate office to get the process going. I then realised that I already had all the information he required in an excellent book that the Government have written.

The book is called What to do After Death in England and Wales. It breaks down into manageable chunks the actions you need to take as an Executor. There are checklists and lots of useful information. The book is written in plain English and leads you through the process so that everyone can follow it.

Feel free to download the Book here. What to do after death in England and Wales

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What can I leave in a Will?

for a Will to be valid in England and Wales it must do two things.

1) Nominate an Executor

2) Leave a gift of Property.

Now in terms of writing your Will Property means any asset you own such as a Bank Account, Insurance Policy, Investment or a House. It is important to note that you can only leave property in your Will that you actually own. This may sound stupid but lets take your House foir example. If you own the house as a Joint Tenant no matter what you write in your Will the gift will fail as the house would automatically pass to the surviving tenant on your death. To clarify this most people when they buy a house with their spouse or partner will own the property as Joint tenants. This means that you both own 100% of the equitable interest in the property and therefore automatically passes to the surviving Joint tenant on death. I will cover the different ways of owning property in another post.

There are three main types of legacies in a Will.

1. Specific items - these physical items. They may have an intrinsic value or just sentimental value. So you may want to leave your Fender Statercaster guitar to your friend who was in a band with you. Women generally leave their jewelery to their daughters. Now to stipulate the actual gift or you can make it generic gift. i.e. You wouldn’t leave your Vauxhall Vectra to your son or daughter as in 20 years time you most probably wouldn’t own a Vauxhall Vectra. But what you could do is leave "Any car I own at the time of my Death" this means that you wouldn’t have to change your Will every time you changed your car.
2. Monetary gifts - these gifts can be a specific value of money i.e. I leave £10,000 to my sister Joan Smith or it could be a Percentage of your estate. i.e. I leave 5% of my estate to each of my grandchildren alive at my death. Also things such as Bank accounts and insurance policies can be left to specific people but you must include the actual bank account details and the Policy numbers to stop any confusion as to which bank account or Policy you meant.
3. Class Gifts - these gifts are that are split between people or classes of people. So you might want to leave a specific sum of money to all your grandchildren. This would be worded something like " I Leave £20,000 divided equally between all my grandchildren alive at my death" or as in the monetary gifts section you could say "I leave 10% of my estate divided equally between all my grandchildren alive at my death"

The first thing that comes out of your estate is your Funeral expense and Testamentayr expenses (probate fees), then any spefic or monetary gifts and what is left is genarlly the bulk of the estate or whats know as the RESIDUE. The residue is then left either to specific people in specific shares or left to a class of people either in specific shares or divided equally. i.e. "I leave the residue of my estate to all my children alive at the time of my death in eqaul shares"

The first thing to do is to make an asset register ( I.e. everything you own) and then decide who you are going to leave it to. There is lots more information to read here

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How to choose an Executor 

When you are writing your Will one of the main things you need to consider is who will your Executors be. This is an important role with a lot of responsibility. Therefore who you should nominate as an executor needs some careful consideration. Remember the person or persons you nominate will be carrying out your wishes as you have directed in your Will but unfortuneatly you will not be around to check up on them.

In the previous post I explaned what their main roles and responsibilities are. In this post I am going to cover how you decide who your execuors should be.

You can nominate as many Executors as you want but only 4 can act. It is advisable to nominate at least 2 executors as two are required to sell land and houses. Most people nominate their spouse/partner and an other.

Firstly you should ask the people who you are going to nominate if they are actually willing to do the job. There is no point in nominating someone if when it comes to the time for them to act they refuse to do the job - they are not legally bound by your nomination. Below are the basic criteria you should be looking for.

1) Do you trust them? - this seems obvious but their role is to carry out your wishes as instructed in the Will. From a distribution point of view they are legally bound to do this properly as per the instructions. But for things like Funeral instructions they do not have to comply with your wishes.

2) How old are they? It is generally recommended that your nominated executors should be of a similar or younger age. This seems obvious but many people nominate their parents and years later when their parents have died they have not updated their Will and then there are no Executors nominated who are alive.

3) Where do they Live? It is unfair to nominate someone who lives abroad. Think about it. If they say live in Australia they may come back for the Funeral but would they want to stay around to sort out your estate, probably not.

4) Are they capabale of doing the job? As stated in the previous post there is quite a lot to do. although it is not rocket science if the nominated person cant fill in the forms or keep good records they will find it very difficult.

5) Willingness. We covered this in the information above.

6) Are they acceptable? Remember they will probably have to deal with the rest of the family, so do they get on with them. If not it will make the task more difficult.

For more information on writing your Will and appointing executors go here

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We have dealt with what happens if you die without making a Will, i.e. the Laws of Intestacy will be used to distribute the estate. For a Will to be valid by English Law it must

a) Be in Writing

b) Be signed and witnessed by two independent witnesses

c) Nominate at least one Executor

d) Make a distribution of some property that the testator owns (NB Property means anything that you own such as specific items, money , bank accounts etc. Not just houses)

One of the most important things that are covered in a Will is the nomination of Executors. Who you nominate depends on some very important factors. Firstly we will cover what an executors Responsibilities are.

In broad terms and Executors role is to take the Will through probate (the proving of the Will) and to distribute the assets to the beneficiaries of the Will as per the instructions in the Will. The executors have no say in who gets what unless there are specific directions stipulating that it is at the discretion of the Executors.

Responsibilities of An executor

(a)       Register the death of the client. Obtain copies of the death certificate – several may be required, one for the funeral directors and others for    each of the funds that may have to be released or transferred e.g. bank accounts, insurance policies, shares and other equities. Many organisations  will need to see the original death certificate before releasing funds. Copies obtained from the Registry of Births Deaths and Marriages are regarded as originals.

(b)       Arrange the funeral. The cost will usually be the first expense paid from the deceased’s estate. Make enquiries about the existence of a prepaid    funeral plan. If a Client purchases a funeral plan they should inform the Executors and advise them of the providers of the plan.

(c)       Arrange to open a personal representative’s bank account. This will be used to receive any monies due to the estate and any loan organised to pay    for Inheritance Tax and/or probate fees.

(d)       Inform all relevant persons or organisations.

(e)       Arrange for valuation of the estate.

(f)       Draw up a full schedule of debts that must be paid from the proceeds of the estate.

(g)       Complete the forms required by the Inland Revenue capital taxes office so that it can be established whether any Inheritance Tax is due. 

(h)       Pay any IHT due.  If the estate is liable for Inheritance Tax the Executors account of the estate is passed to the Inland Revenue.  The Grant of    Probate cannot be issued until the Tax is paid. The Executors usually have six months from the date of death to pay the tax.

(i)       Complete the Probate forms and send them to the Probate Office along with the original Will, the death certificate and the Inland Revenue account.

(j)       Apply for Grant of Probate via the nearest Probate Registry.  An appointment will be made for the personal representative to “swear the papers”    within about 5-6 weeks of receipt of the Probate forms at the Probate Office.

(k)       Collect in debts/other assets.  Once the tax is paid, Grant of Probate can then be applied for and copies of the Grant should be sent to anyone who    owes the estate money. The Executors now have a legal authority to pursue any debts owning to the Estate.

(l)       Distribute the estate.  When the Grant of Probate is received the estate can be distributed according to the terms of the Will. The Executors must        prepare and sign accounts showing how the estate has been distributed. They must be able to show that they have acted in accordance with the terms        of the Will in case there is any dissent from the family of the deceased.

(m)      Retain papers.  Once the estate has been finalised all papers, including the Grant of Probate and the accounts, must be stored safely for a period   of 12 years.

As you can see the duties of an Executor and quite onerous and should not be taken lightly. The responsibilty is firmly palced on the Executors shoulders to carry out the Testators wishes. Anyone who is nominated as an Executor can refuse to act - being nominated is not legally binding. But if they do start the process they then can’t decide half way through that they don’t want to continue. An executor can appoint another executor i.e. A solicitor if they feel they would be unable to complete the process.

In the next post I will cover who you should nominate as an executor.

you can read more here

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Why make a Will?

Amazingly over 70% of the people in England and Wales do not have a valid Will. So why should you make a Will? I get asked this question a lot. Most people wrongly assume that if they are married then everything will go to their spouse - wrong. When someone dies without a Will they die Intestate. This means that the state will write one for you and for most people the result is not what they would have wanted.

Statutory Wills are written by a strict code called the The Laws of Intestacy. These rules have not changed for 80 years and there is a strict hierarchy of who gets what. For a full breakdown of the process used see below.

Without a valid Will The Laws of Intestacy are just the start of the problems that the remaining family will encounter. If there is no will then the probate office will need to appoint administrators - normally family members and Letters of administration will be issued. This means that:-

a) The process takes a lot longer, this may deprive potential beneficiaries of their due Inheritance for longer and leave them in financial hardship

b) The process may be a lot more expensive especially if lawyers have to get involved.

c) The deceased estate may not go to who they wished it to go to.

d) Any gifts to people or charities outside immediate family members will not happen.

c) If there are children involved then you would  not be able to nominate Guardians of your choice - very important. 

The laws of intestacy.

1) Single person - no children

Their estate will pass to their parents if alive

If No parents then it will go to brothers and sisters in equal shares 

If No Brothers and Sisters then it will go to Half Brothers and sisters

If No half brothers or sisters then it goes to Grandparents

If No Grandparents then it goes to Aunts and Uncles

If no other relatives then it all goes to the Crown.

2) Single Person - With Children 

Thier estate will pass to their children in equal shares 

If there are No children estate will pass to their parents if alive

If No parents then it will go to brothers and sisters in equal shares 

If No Brothers and Sisters then it will go to Half Brothers and sisters

If No half brothers or sisters then it goes to Grandparents

If No Grandparents then it goes to Aunts and Uncles

If no other relatives then it all goes to the Crown.

3) Unmarried Partners 

The partner is entitled to nothing - there is a miss conception about common law husbands and wives. They can apply to the court for a share of the estate but it is time consuming and costly.

They will be treated as single people with or without children and the same rules as above apply

4) Married couples or couples in a Civil partnership 

If the estate including the house is below £125,000 the spouse/partner will inherit everything

If the estate is above £125,000 and their are children then the spouse gets the first £125,000 and a lifetime interest (i.e. any income it would produce) in half the remainder. the rest would go straight to the children

If the estate is above £125,000 and their are no children then the spouse/partner is entitled to the first £200,000 of the estate. The rest would go along similar lines as above. i.e. To the parents, if no parents then to brothers and sisters etc.

If their are no other living relatives then the spouse/partner would inherit everything.

As you can see the Laws of Intestacy could cause all sorts of problems for remaining family and in some cases of unmarried couples the remaining partner could be left with absolutely nothing. 

There is no valid reason for not writing a Will. Its is relatively simple and painless and generally quite cheap.

There are plenty of online services that you can use. We have found that Tenminute Will is by far the best in terms of ease of use, cost and the quality of the documents produced. 

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