Gaynham King & Mellor Solicitors

Wills and Probate

“Why should I make a Will”

You can say what will happen to your possessions and assets when you die.

To make a valid Will you must be:

  • Mentally capable.
  • At least 18 years old.

A Will must have been made without undue influence, be in writing, be signed by the person whose Will it is and by two witnesses, who must all be together at the signing and be dated when it has been signed.

What does an Executor or Administrator do?

The Executors are the people appointed in a Will to deal with the estate of the person who has died. An Administrator is the person who deals with the estate of a person who has died intestate (without a Will). The Executor or Administrator may both be called a “Personal Representative”.

The Executors must then work out whether they need to apply for Probate and consider whether or not there is any inheritance tax to pay. Even if the Executors believe there is no inheritance tax to pay, they must complete a form giving details of the assets and certain gifts made by the person who died to the Capital Taxes Office.

If you are an Administrator acting when there is no Will and you handle all the matters personally (rather than using a Solicitor) you will be personally liable (responsible) if you don’t follow the “Rules of Entitlement” which sets out the order of persons entitled to the deceased’s estate.

What is Probate?

Probate is an official form that gives the Executors of the Will the right to deal with the assets and property of the deceased.

When there is no Will (or there are no Executors named in the Will or the Executors have died), the official form is called “Letters of Administration”.

You may apply in person for Probate or Letters of Administration, or you may instruct a Solicitor who can apply on your behalf. The application will be made to either:

  • The Principle Registry (in London) or
  • A District Probate Registry.

Will I have to pay inheritance tax?

Whether or not you, as the Executor have to pay inheritance tax out of the estate depends on:

  • How much the property and belongings of the deceased were worth when they died.
  • The value of any trust from which the deceased benefitted.
  • The value of certain gifts the deceased made in the seven years before they died, or longer if they “reserved an interest”.

If all these add up to more than a certain amount (called the “nil rate band”), the estate has to pay inheritance tax at 40% on the sum of money above this amount. The amount of the nil rate band is reviewed every year.

All gifts between husband and wife are exempt from tax, as are those between same sex partners in a registered civil partnership.

Inheritance tax is complicated so you should seek specialist legal advice straight away if you are an Executor and or the Probate Registry tells you that you may have to pay inheritance tax.

The cost of legal advice will be paid out of the estate. If you get the calculation wrong without having taken advice and you pay the beneficiaries without paying the right amount of tax, you may have to pay what is owed out of your own pocket. Also, some or all of the inheritance tax will have to be paid before you can obtain Probate or Letters of Administration.

Same sex relationships

Same sex couples who have registered their relationship as a civil partnership have the same tax advantages as married couples.

Who takes charge if there is no Will?

If you, as next of kin, believe that someone who has died has left a Will, but no one can find it, you can take steps to find out if they made one by:

  • Searching the belongings of the person who has died for any evidence that they made a Will or
  • Phoning or writing to Solicitors and banks or applying to the Principle Probate Registry to see if the person who died left their Will there or
  • Placing advertisements in newspapers and legal journals.

If there is no Will then the deceased’s estate will be shared out under the Rules of Intestacy.

Who gets the estate if there is no Will?

Any inheritance tax must be paid. After that all debts must be repaid whether the deceased has made a Will or not. After that, the Administration of Estates Act 1925 sets out who gets what in every situation where there is no Will. Your Solicitor can give you specialist advice if this applies to your circumstances.

If you believe that there is something wrong with the Will or you are unhappy because you have been left out of a Will altogether or because you have been left without “reasonable financial provision” you should seek specialist legal advice and at Gaynham King & Mellor Solicitors we are happy to receive your instructions if these issues and concerns apply to you.

What if there isn’t enough money to pay for the funeral

By asking a Funeral Director to conduct a funeral you make a contract agreeing to pay for the funeral. This means that, if you are the Executor or Administrator, you should do this only after you have made sure that there is enough money in the estate to pay for the funeral. Otherwise, you should be willing to pay any part of the bill that will not be covered by the estate.

If you need to arrange a funeral when there is not enough money in the estate to pay for it and you are receiving a means tested benefit, you may be eligible for a funeral payment grant from the Social Fund.

What if there is not enough money to pay the persons debts?

When someone dies their debts do not die with them. They have to be paid out of the deceased’s estate.

If there is not enough money to pay all the debts, they must be paid in a particular order:

  • The funeral expenses and testamentary expenses (those to do with dealing with the Will).
  • Any debts secured by a mortgage on a property.
  • HM Revenue & Customs.
  • The Department of Work & Pensions, who deal with Social Security (you may have to refund any overpayment benefits).
  • Unpaid pension contributions or wages.

Here at Gaynham King & Mellor our lawyers can offer you professional, competent legal advice on all issues relating to Wills and Probate, please therefore do not hesitate to contact us to discuss your requirements.

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