Probate

A death in the family is always an emotional and distressing time. It can be even more stressful if you are unsure about all the things that you need to sort out and do not know how or where to begin to get it all done. The following pages contain some practical details of what to do and how to do it.

1. Obtaining Death Certificates
You must REGISTER THE DEATH with the local Registrar of Births Marriages and Deaths within five days of the date of death. The address and telephone number of the local Registrar is in Yellow Pages under 'Registrar'. You will have to telephone first to make an appointment.

Take with you the Certificates issued by the doctor who was attending the deceased at the time of death. You will need to confirm the date of death, the full names of the deceased, the date and place of birth and the occupation of the deceased. If she was a widow the registrar will also require the name of her late husband.

The closest relative usually registers the death. It can also be registered by a restricted number of third parties, including the solicitor dealing with the administration. then the executor (see section 4 below)

If the death was unexpected an inquest may be required after a post-mortem and the Coroner will then issue any Death Certificate. This may delay the issue of a full Death Certificate but should not prevent you from arranging the funeral and dealing with the affairs of the deceased as an interim Death Certificate will be issued.

2. Funeral Arrangements
The UNDERTAKER (FUNERAL DIRECTOR) will not be able to proceed until you have registered the death and handed to him one of the certificates that the Registrar will give you. The undertaker will contact any church on your behalf and will fix a suitable date for the burial or cremation as you require and will also arrange for the vicar to be in attendance. The vicar will also want to contact you to obtain information about the deceased and to agree the hymns and readings. The undertaker can arrange for any service sheets to be printed if required.

If you instruct the undertaker then you must be sure that the deceased has enough money (or other assets) to pay the funeral bill, as you will be personally liable for settlement of the account. If the deceased had no (or insufficient) money the undertaker will advise you on how to get help with the payment from the Local Authority.

You will need to notify all the friends and relatives of the deceased that are known to you and give them details of the date and place of the funeral.

You may put a notice in the local paper. Many weekly local papers require the details to be available by Monday afternoon or Tuesday afternoon at the latest to be in the paper for that current week.

3. Dealing With The Estate
If the deceased has made a Will, there may be a copy or letter amongst their private papers indicating which solicitor has been dealing with their affairs. If so then the deceased will have appointed executors (as to which see below) to deal with his assets and administer his estate. The executors are entitled to consult whichever solicitor they chose.

A Will may contain the deceased's wishes as to burial or cremation.

A Will also contains the appointment of the executors who have the legal power to deal with all the assets and affairs of the deceased as from the date of his death. The solicitor will explain clearly to the executors what they have to do.

4. Intestacy
If there is no Will, then the deceased has died intestate and in such circumstances the law imposes a set of rules by Act of Parliament called the Rules of Intestacy which specify who is entitled to the whole of or to share in the estate of the deceased. The Rules are complex and their effect will depend on how the value of the estate and family left behind. You must consult a solicitor to seek advice on the operation of the rules. It will be the beneficiaries under these rules who are entitled to act as the administrator of that estate.

An administrator is the intestacy equivalent to an executor but their authority does not start until a grant of Probate is issued to them

5. Duties of Personal Representatives
If you are an executor or administrator (or Personal Representative-PR) then you have the legal right, and the duty, to deal with all the assets that the deceased owned. You must act honestly and fairly and in accordance with the law and any Will - and as long as you do then you will be able to make decisions as to the distribution of the furniture and effects (what shall be kept and what should be sold) and as to how cash and investments are to be dealt with. There are a number of do's and don'ts, and some of these are as follows: -

• Make sure that any empty dwelling house or flat is secured and remove any valuable items and bank books etc., as soon as possible.

• In winter make sure that the property is frost protected;

• Find the buildings insurance policy and make sure that the cover is sufficient.

• If the deceased owned a car, do not drive that car until you have made sure that it is properly insured for you to drive.

• Where there is a SURVIVING SPOUSE in particular:

• Sort out the pensions as soon as possible - both DSS Widow's Pension if applicable and any other works or private pension. There may be choices to make which will need the guidance of a solicitor.

• Joint bank accounts will belong to the survivor and if the Death Certificate is registered with each such bank or building society the account will be transferred into the sole name of the survivor, quickly and without any fuss.

• All other joint property for example, furniture will belong to the survivor of joint owners and this is so whether the survivor is a wife or partner of the opposite or the same sex. Sometimes there are complications on which you will again need legal advice.

6. Grant of Representation
If the value of all the assets in the sole name of the deceased exceeds £5,000 it is almost certain that the PRs will need to obtain a Grant of Representation from the Probate Court. At what is already a difficult time many PRs instruct Furse Sanders & Co to administer the estate on their behalf to calculate the value of the estate, prepare the application for the grant and complete the Inland Revenue papers, and to advise and assist the PRs on the administration of the estate.

The bank accounts are frozen as from the date of death and so you should not attempt to use them after that date (a Power of Attorney ceases to be valid upon death) until the PRs have produced a Grant to the bank. The bank is usually prepared to issue cheques to pay the funeral bill and any Inheritance Tax due before the grant is issued.

7. Debts
The PRs must pay all the debts of the deceased before they distribute any of the assets but they may not be able to get hold of any monies until they have obtained a Grant. If there are no assets (money or items of furniture or personal property or land etc.) or insufficient assets to pay the debts and funeral expenses then the deceased is said to be 'insolvent' and there are special rules which you must discuss and agree with the solicitor before you take any further action. In particular do not pay just one or a few of the creditors in full since this is likely to be wrong.

8. Applying for the grant
In order to administer the estate and get a Grant if necessary the personal representatives must as soon as possible obtain full details of the value of the assets belonging to the deceased as at the date of death, and prepare a schedule.

Where a personal representative is required to apply for a Grant he will have to decide what information, if any, he must, by law, give to the Inland Revenue. This will depend upon a number of factors including; did the deceased make any gifts in the 7 years before death? Did the deceased own any settled property? Did the deceased make any gifts with a reservation of benefit at any time? Is the estate passing to a surviving spouse? and What is the net value of the estate for probate purposes? PRs have a legal duty to make full enquiries about all of these matters in order to notify the Inland Revenue of all of the relevant details, and the personal representatives can be made personally liable for penalties and interest if they fail to do so. Acting as PR can be an onerous task especially if it is undertaken without the help of a Solicitor.

9. Inheritance Tax
There may be inheritance tax to pay. Where payable it is charged at 40%. The Inland Revenue require this to be paid before a Grant can be issued. The PRs may need to arrange a loan from the bank. They will be responsible for ensuring that the loan and interest is repaid as soon as possible.

It may be necessary to negotiate with the Inland Revenue as to the value of various items in order to keep the chargeable value of the estate as low as possible to ensure that the lowest possible inheritance tax is paid. It is always difficult to 'back track' in the circumstances so often it would have been better for the original calculation to have been made by a Solicitor so that they can get the chargeable value (and therefore the tax) as low as possible from the outset.

10.Deeds of Variation
It may be possible to alter the terms of the Will or alter the distribution of the estate on intestacy by a Deed of Variation. This will enable other family members to receive some benefit, and can also be used to save Inheritance Tax.

11. Completing the administration of the estate
Once the PRs have paid the tax, debts and funeral expenses, they must pay any legacies that have been left in the Will and then distribute what is left as the residue of the estate in accordance with the Will or the Rules of Intestacy.

12. Income Tax during the administration
As part of the administration of the estate they will also need to submit an Income Tax return or repayment form to date of death, and Income Tax returns for the administration period to declare the interest or other income received by the estate whilst in the course of administration. We advise to deal with this aspect at the outset of the administration.

13. Estate Accounts
An estate account must be prepared to show in detail the assets and their value; the monies received; the debts paid; and the distribution of the remainder of the estate to the residuary beneficiaries. The PRs have a duty to provide this information to the beneficiaries. An advantage of using Furse Sanders & Co to complete and administration is that our software will produce full balanced accounts for the PRs to circulate.