Probate FAQs, Probate Lawyers York, Wetherby & Malton
The loss of a loved one is deeply painful. At such a challenging time, carrying out the administrative duties and tasks to wind up their estate can feel daunting. This process is sometimes referred to as probate.
To help you begin the probate process, we aim to answer some of the most common questions asked:
- What is involved in the probate process?
- If the Will names me as executor, do I need to carry out the role?
- As an executor, am I legally responsible if things go wrong?
- What happens if there is no Will?
- How do I know if inheritance tax is owed?
- When does inheritance tax need to be paid?
- How can I fund inheritance tax?
- Do I need a solicitor?
The Will of the deceased typically names an executor or multiple executors. Executors are responsible for administering the estate and carrying out the deceased’s wishes as set out in their Will.
As part of the probate process, the executor(s) will need to (amongst other things):
- prepare the deceased’s property for sale (or transfer it to the chosen beneficiary) including dealing with the house insurance and utility companies
- settle debts owed by the deceased, including any loans
- collect money owed to the deceased
- cash in investments held by the deceased
- arrange for life insurance policies to be paid out and, where applicable, deal with the deceased’s pension providers to establish amounts owed to or by the estate
- share out the deceased’s assets in accordance with their Will
As long as you have not begun to administer the estate, you do not have to act as an executor and can give up all rights to the position. Alternatively, if other executors are named in the Will, you may opt to have ‘power reserved’ to you, allowing the other executors to act whilst reserving your right to become involved in the probate process at a later date if needed.
To ensure the estate is administered properly and to remove any added stress at this time, instructing a solicitor to complete the administration on your behalf may be the best option.
Executors are expected to act reasonably and in the best interests of the estate and its beneficiaries. These expectations must be met across all aspects of the role, for instance by paying all inheritance tax before the estate is distributed.
Failure to meet these expectations could result in a claim being made against you. Additionally, if a creditor to the estate is left unpaid then once the assets have been distributed you could be held personally liable for the money owed to them.
Since executors can be held personally accountable if mistakes are made, it is strongly advised to seek support from a probate solicitor to ensure everything is done correctly.
If someone dies without leaving a Will then they are said to have died ‘intestate’. A detailed set of rules (known as the ‘intestacy rules’) set out who will legally inherit the deceased’s estate in such circumstances which will depend on the living relatives that they have left behind. Another set of rules dictates who can apply for a ‘grant of letters of administration’ of the estate – this is similar to a grant of probate but is relevant when someone died intestate. If there are no surviving relatives, the estate passes to the Crown and the Treasury becomes responsible for its administration.
Inheritance tax is a tax due on the deceased’s estate. Whilst only a small proportion of estates incur inheritance tax, all assets must be valued and any inheritance tax owed must be calculated and paid before probate is granted. Even if no inheritance tax is owed, HMRC must still be notified as part of the probate application.
Generally, an estate will not incur inheritance tax if either:
- its total value (including any gifts made in the seven years before death) is below the Nil Rate Band, currently £325,000 per individual
- the deceased has left everything above the Nil Rate Band threshold to their spouse, civil partner, a charity or community amateur sports club
The threshold may increase in some circumstances, such as where the deceased has left their house to their direct descendants (i.e. their children and/or grandchildren).
We would strongly recommend that the advice of a probate solicitor is taken to check the position regarding inheritance tax on an estate as the rules are quite detailed.
A probate lawyer can make certain that you are not paying tax unnecessarily.
Inheritance tax must be paid by the end of the sixth month following the person’s death. If payment has not been made by then, HMRC will begin charging interest on the sum owed. Inheritance tax on some assets can be paid in instalments, however interest will still be charged on the outstanding amount.
Probate will not be granted until HMRC confirms that all inheritance tax (other than that being paid in instalments) has been paid.
Payment can be facilitated in several ways, including via the ‘Direct Payment Scheme’ (where a bank or financial institution makes payment directly to HMRC on behalf of the executors) and executor’s loans. A probate lawyer can explain these options to you and help you to assess your best course of action.
Whilst a solicitor is not required to carry out probate, it is common practice to instruct one. Their assistance can make the probate process manageable and prevent you from making any expensive or time-consuming mistakes.
Contact our Probate Lawyers in Yorkshire
Ware & Kay’s competent probate solicitors offer considerate, comprehensive support when you need it most. Our thorough understanding of tax law, property law and trust law allows us to guide you through the probate process accurately and sensitively.
For a friendly chat about how we can assist you, call our probate lawyers today on 01904 716000 (York), 01937 583210 (Wetherby) or 01653 692247 (Malton), or get in touch using our online contact form.