Wills, Lasting Power of Attorney & Probate
Wills & Last Testatment
In England and Wales, unlike in many other European countries, we all have the right to leave our estate to whom we like after we die. However, the only way of exercising that right is to make a Will. Surprisingly, the majority of us do not exercise this right and instead allow our estate to be distributed after our death in accordance with an intestacy regime which was devised in 1925. Although updated in some respects since 1925, many people feel that the intestacy regime does not reflect the society we live in or how they would wish their estate to be distributed.
A Will is also potentially a vehicle for tax planning, enabling you, for example, to make efficient use of Inheritance tax exemptions and reliefs.
Whether you simply want to appoint your spouse as executor and make sure that your estate goes to your spouse and then to your children or whether you wish to appoint your cohabitee and set up trusts for your children and stepchildren and minimise your Inheritance tax liability, making a Will is always a worthwhile investment.
Call us on 03333055135 to book an appointment and discuss your will and last testament.
Probate involves getting the court’s permission in the form of a document called the Grant of Probate or Representation to carry out the wishes of the deceased person contained in his Will and settling the deceased’s estate by distributing to the beneficiaries. Probate sometimes is not required if the estate is a small estate (usually about £5,000) and in these two main situations:
Assets were jointly owned, e.g. land, property, shares or money in joint accounts - these will automatically pass to the survivor by the Principle of Survivorship.
The deceased only had a small amount of savings or premium bonds.
However, a bank, mortgage provider, insurance company etc.) may have their own rules and in some instances probate may still be required.
Probate can be a complex, demanding and time-consuming process. Many executors, whether professional or otherwise, who have been appointed as executors named in the Will, usually will follow the main stages set out below. Many appoint solicitors to help with the process of obtaining the Grant of Representation as this can be upsetting for members of the family, time consuming and sometimes confusing.
Probate matters at Victorimax Solicitors are managed and self-supervised by Mr. Naushad Ramji. He was admitted as a Solicitor in 1991 and has years of experience in dealing with all types of matters include probate, inheritance and administrations of estates.
THE STAGES OF PROBATE
Stage 1 - Making contact with the asset holders
This can take a long time and it involves identifying and making contact with banks, building societies, life assurance companies, utilities, pension providers and others in order to advise them of the death and to request a valuation of the assets held with their organisation. Insurance companies should also be correctly notified to ensure assets stay protected. Often valuations are needed for inheritance tax purposes. Once all the valuations are known return of estate information forms for inheritance tax purposes need to be completed.
Stage 2 - Application for the Grant of probate or Representation/letters of administration (if there is no will)
It is then necessary to get all the paperwork together to apply to the Probate Court for the Grant to enable the executors to administer the estate. If the deceased has left a Will, it is an application for Grant of Probate. However, if the deceased did not leave a Will, the application is for Letters of Administration. Amongst the papers needed to be field with the Probate Registry will be completion of the appropriate PA1 form and a Statement of Truth which will need to be prepared as well. The original will is required and a certified copy of the death certificate plus the appropriate court fee.
When applying for the Grant of Probate or Letters of Administration the inheritance tax position needs to be dealt and HMRC notified. If this is not dealt with properly it will delay the obtaining of the Grant of probate or Letters of Administration. So, it is imperative that this part of the process is dealt with properly.
There are two types of Return of Information forms - IHT205 (shorter version), and IHT400. (longer version). Once the value of the deceased' estate is established, one can often tell which form will be required to be completed. The return forms are then complicated. Generally, where the estate is likely to be within the IHT threshold and the lifetime allowance of £325,000. there will not be any inheritance tax to pay, and the shorter version can be completed. In some instances, estates up to one million may come within the shorter version, but care needs to be exercised when completing the Form. In other cases, usually where the estate is a large estate and certainly more than a million or lifetime settlements have been done, complex pension arrangements had been set up by the deceased they need sorting out and, in that case, then the longer version will be required to be completed. This is more complex. Great care needs to be taken when completing the longer version of the form, especially where the schedules need to be completed with additional information.
It is important to note that before the Probate Registry will issue the Grant of Probate or Letters of Administration, any inheritance tax due must be paid to HMRC first. At the very latest, it must be paid by the end of the sixth month after the person's death. If it is not paid HMRC will start charging interest. The HMRC issues a stamped summary of the tax calculated and paid which is required to be submitted with the application paperwork to the Probate Registry.
The executor or administrator will also need to confirm to the court that all the information they have given in their statement Of truth is true to the best of their knowledge. Once the stamped receipt is returned from the HMRC for payment of inheritance tax the application can then be made for the Grant of Probate or Letter of Administration.
Stage 3 - Notifying the asset holders, apply for funds and placing statutory advertisements
Once the Probate Registry issues the Grant, this can be submitted to organizations for the release of funds or assets. If a solicitor has been instructed in the matter, they will then be released to the acting solicitor or the executors. It is a good idea to open a separate account for this.
It is also good practice to place a statutory advertisement in the London Gazette notifying creditors or beneficiaries, if they are not easily contactable, so they have the chance to come forward. Any person wishing to make a claim must do so within 2 months from the date of the advertisement being published.
Liabilities and debts must be paid first, these could include:
Funeral and estate administration fees
Utility bills, care accounts, credit card debts etc
Benefit overpayments made after death or incorrectly claimed during the lifetime of the deceased
Only once these have been paid can the estate be distributed to the beneficiaries.
Stage 4 - Distributing the estate
Once taxes and debts have been paid the estate can be distributed to beneficiaries.
Stage 5 - Prepare the estate accounts
The final stage of the process is the preparation of Estate Accounts which will show money coming in and money going out and a note of how the assets were distributed. The Executor client will be sent the Estate Accounts. It is the duty of the Executor to provide a copy to beneficiaries should they request a copy.
It is vital that records are kept safely by the executors and for them to be well maintained just in case they are needed for the future, including evidence of payment of inheritance tax to HMRC and income tax as they can be requested by them for up to 20 years.
If you would like to speak to a member of our team in relation to the probate process or any other related service, including making a Will or Lasting Powers of Attorney please call us on 03333055135
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Lasting Power of Attorneys (LPA's)