We understand that the administration of a person's estate can be a complex, time consuming and often emotional time. That's why our probate solicitors work with you to take the strain and make the process as straightforward as possible.
The role of the personal representative
It has always been possible for Personal Representatives to make a personal application to the probate registry but is it advisable?
Personal Representatives are personally liable for any acts or omissions conducted by them in relation to the administration of an estate. This can and should be a daunting prospect for anybody appointed in the role of a Personal Representative.
In the majority of cases, it is advisable to engage a probate solicitor from the outset of the estate administration so that they can identify and address any immediate legal issues that may be involved. There are a number of complexities which can arise during the administration of an estate and it is important for these to be identified and dealt with as soon as possible.
Essential tasks of estate administration
Personal Representatives are responsible for the administration of the estate, which involves:
- Submitting an Inheritance Tax Return (required on all estates)
- Obtaining the Grant of Probate or Grant of Letters of Administration (if there is no Will)
- Gathering in the deceased's assets
- Paying any debts and liabilities
- Paying the legacies as set out in the Will
- Setting up and dealing with the administration of any trusts set up under the deceased's Will
- Obtaining tax clearance
- Distribution of what is left over.
Complex probate issues
There can also be other complicating factors to contend with such as:
Domicile
Identifying the deceased’s domicile is critical as it will confirm which country’s succession laws will apply and the tax regime applicable to the deceased’s estate.
Intestacy
Identifying who is entitled to a deceased’s estate where there is no Will dictates not only who benefits from the deceased’s assets but also who has authority to deal with the deceased’s affairs. It is not automatic that a deceased’s spouse will inherit the whole of the estate. There is no provision for cohabitees to benefit from a deceased partner’s estate on their death.
Assets outside the UK
If the deceased owned property and assets outside the UK, it will be necessary to ascertain whether they left a will in that country. It will also be necessary to identify the relevant law which applies to the distribution of those assets. We are used to liaising with foreign lawyers and applying for foreign Grants of Representation to be resealed at court.
Tax
Care should be taken in identifying the values of the deceased’s assets and liabilities and preparing the Inheritance Tax account for the estate. Calculating the Inheritance Tax due on a deceased’s estate can be a complex process and advice should be sought to avoid any penalties for late payment or non-disclosure of relevant assets. Personal Representatives are personally liable for any unpaid inheritance tax.
Business Assets
If the deceased had an interest in a business, input will undoubtedly be required to assist with the mechanics of transferring that interest to the intended beneficiaries. It is also possible that Inheritance Tax reliefs may be available to offset against the value of business assets as part of the application to HMRC.
Trusts
If the deceased’s will includes one or more will trusts, additional steps will need to be undertaken by the executor (who may also be the trustee) to set up the trust. There will then be ongoing administration of the trusts, and depending on the nature of the property held, it is almost certain that the executor/trustee will need to instruct a solicitor and an accountant to prepare tax returns and trust accounts.
Minor beneficiaries
If the deceased’s will includes one or more minor beneficiaries, additional steps will need to be undertaken by the executor in relation to that child’s entitlement. It is not always possible or sensible to discharge a legacy to a minor child by obtaining receipt from that child’s parents or legal guardian.
Estate liabilities and creditors
Personal Representatives can be held personally liable if they distribute an estate prior to paying any estate liabilities. Even unknown creditors can seek recovery of debts of a deceased from their Personal Representatives.
Validity of the Will
It is possible for third parties to challenge the formal validity of a will, most commonly where there are allegations that the deceased lacked the necessary testamentary capacity when their will was executed, or there may be allegations of undue influence. If there is any suggestion of the will being challenged, the executors should consult a solicitor as soon as possible.
Claims against the estate
There are certain categories of people who will automatically qualify to bring a claim under the Inheritance Provision for Family and Dependents Act 1975. Defending such claims can be costly and time-consuming and Personal Representatives need to be fully appraised of their duties and obligations in such circumstances where this is a relevant consideration.
Post death variations
Beneficiaries of an estate may wish to vary their entitlement under the Will as part of their own Estate Planning. We can advise executors and/or beneficiaries how this should be done, both administratively and in the most tax-efficient manner.
Dealing with the deceased’s cryptoassets and digital legacy
Cryptoassets such as bitcoin do form part of a deceased’s estate for taxation and distribution purposes and a date of death valuation of these assets will need to be obtained alongside any other assets of the estate. This can cause difficulties for executors who are unfamiliar with this sort of investment. Executors may also require assistance with dealing with the deceased’s digital legacy, which can include things like photographs and music stored digitally, and email accounts. Under current legislation, accessing a deceased’s online accounts post-death can be a criminal offence, even if passwords have been volunteered prior to death. Appropriate care and advice should be taken by executors when dealing with these matters.
Why use a probate solicitor?
The role of a Personal Representative is complex and onerous and the responsibility of acting in this capacity should be taken seriously. Getting it wrong could be costly for you personally even if you are not a beneficiary of the estate.
Our probate solicitors are able to advise and assist Personal Representatives in administering an estate or to provide advice regarding particular aspects of estate administration. Contact any member of the team for reliable and trusted advice.
How we determine our price.