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Dealing with the estate of someone who has died- Large & Gibson probate jargon buster

Tricia Longmore of the Wills, Trusts and Probate team answers some of the most Frequently Asked Questions about Probate
Probate Jargon buster+

Beneficiaries - A person or institution who inherits from a Will or under intestacy laws

Codicil -  A legal document that is often used to make minor changes to a Will but has same formalities regarding signing to be valid

Grant, fully known as a Grant of Representation - An order from a court which confirms or confers the authority of the “personal representative”) to administer the estate of the deceased person

  • Grant of Probate, when there is a Will which successfully appoints executors
  • A Grant of Letters of Administration with Will annexed, This is issued when there is a Will, but either there is no executor named in the Will or all the named executors are unable or unwilling to act as executors
  • A Grant of Letters of Administration When there is no Will

Intestate - When someone dies without making a Will

Legacy - a gift included in a Will

Personal representative - Person who gets the grant and administers the estate

  • Executors, appointed by the Will
  • Administrators, when there is no Will, the persons who obtain a Grant of Letters of Administration are known as administrators and must establish their entitlement to apply for a Grant.  There is a strict order of precedence as to who is entitled to apply for Letters of Administration (i.e. Spouse, Civil Partner, Children, Parents, siblings

Probate registry – government office that deals with Probate and Administration with principle office in London and regional district registries

Residue / residuary estate -  what is left after the money legacies, specific gifts, funeral expenses, Inheritance Tax, and all other liabilities and expenses

What if there is no Will?+

When someone dies without leaving a Will they are described as having died “intestate”. How their estate is then distributed is set down in law and known as the rules of intestacy. Many people believe that a spouse or civil partner will get everything but this is not necessarily the case. How the deceased held assets will also direct how they are distributed. See Do I need a Grant to sell a property below

What do I need to apply for the Grant?+

In order to obtain a Grant, an application needs to be made to the Probate Registry. The Probate Registry requires certain documents to be lodged at the time of the application:

  • An original Will and any Codicils;
  • An appropriate Oath sworn by the Executors or Administrators – there are different Oaths for different types of Grant;
  • A receipt to show that any Inheritance Tax has been paid or an Inheritance Tax account signed by the Executors/Administrators if there is no Inheritance Tax to pay;
  • Any other papers that are required for example, affidavits or powers of attorney;
  • Payment for the Probate Court Fees.
Do I need a Grant to sell a property?+

This depends on how the property is owned. Property owned solely by the person who has died will need a Grant to enable the Executors or Administrators to sell the property.

If the property is owned jointly with another person or persons, the need for a Grant will depend on how the property is owned. There are two different ways to own property jointly with someone.

Joint Tenants – this is where two or more people own a property jointly and on death the share of the person who has died passes automatically to the other owners. If the property is owned in this manner, there is no need for a Grant as the surviving owner or owners can sell the property.

Tenants in Common – this is where the owners own a certain percentage of the property. The share of the property owned by the person who has died will pass into their estate and be dealt with as per the instructions in their Will or by the Intestacy rules. If a property is owned in this manner, a Grant will be required to sell or transfer the property.

DIY or professional advice?+

Some people believe that DIY is the way to go, saving costs in the hope that a larger sum will be passed on to the beneficiaries. The main issue facing the Executors or Administrators is completing all of the right paperwork correctly and making sure they have met all the legal and financial requirements and to protect themselves from any personal liability. This may prove difficult at a time when they are grieving the loss of a loved one.

Employing the services of a legal professional to apply for the Grant and to administer the estate relieves Executors and administrators from a lot of the legal and financial tasks that must be undertaken when finalising an estate.

For Executors and Administrators, it is also worth noting that they are personally liable for dealing with the administration of the estate correctly and could be liable for any loss to the estate arising from any breach of duty committed by them. They can also be personally liable if they have distributed money from the estate without properly protecting themselves and unknown creditors or beneficiaries come forward.

Therefore, on balance, many people feel that the benefit of instructing professionals far outweighs the costs that are incurred on both a financial and emotional perspective.

Read more about how Large & Gibson can help you with obtaining a grant and administering an estate.

Can the Will be contested?+

A will can only be contested on limited grounds. In addition, certain people, for example, a spouse, a civil partner, a former spouse or civil partner who has not remarried or a child, including adult child (this list is not complete) can bring an action to contest the Will provided that such action is commenced within six months of the issue of the Grant of Probate.

The application must prove that there was a failure by the deceased to make reasonable financial provision for him and this will depend on the value of the estate and the circumstances of the beneficiaries and the claimant at the time the claim is made.

Read more about how Large & Gibson can help with contentious probate.

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