• 01616 966 229
  • Request a callback
Stephensons Solicitors LLP Banner Image

News and Events

What do you need to do when someone dies?

  • Posted
Do I need Probate even if there is a Will?

If you have just lost someone whether a friend or relative and you are wondering what the next steps are. This guide will take through the steps you need to consider and provide you with enough information to be able to carry out your duties as the personal representative of the estate. 

 What is a Grant of Probate?

A Grant of Probate is the document which confirms the executor(s) of a Will (the person or people responsible for carrying out the wishes contained in the Will) have the authority to deal with the assets of a deceased person.

If you are named in someone's Will as an executor, you may have to apply for probate. This is a legal document which gives you the authority to share out the estate of the person who has died according to the instructions in the Will.

If there is a property to be sold or transferred into beneficiaries names a Grant of Probate will be required. The deceased's home can't be sold or transferred before a Grant has been obtained. Although executors have authority from the will to deal with the estate, they can only prove their rights by taking a grant of probate.

The executors usually get the grant of probate or letters of administration within 16 weeks of submitting the application.

What if there is no Will - who has the right to administer an intestate estate?

If there is no valid Will, and you are the next-of-kin, you can apply to be an administrator in the following order of priority: you are the married partner or civil partner of the person who has died, you are the child of the person who has died, you are the grandchild of the person who has died.

Similar to a grant of probate, the letter of administration is a grant of representation issued by the court allowing the named individual to administer the estate. The main difference here is that no specific person will have been appointed to manage the estate, because there is no valid Will.

Liabilities of the estate

The liabilities of the estate are also important and as the executor or administrator of the estate you are personally liable to meet any debts to the estate from the estate funds and can be liable if any of these are overlooked. When calculating the value of the estate you must include any debts the deceased had – this is the funeral account, mortgage, credit cards and any loans or finance. This is the case if these are joint or sole debts. This will then allow you to calculate the net estate for inheritance tax purposes.

Some assets though do not form part of the estate if they have been “written into trust” or “nominated” for someone else’s benefit. These will be paid directly to the beneficiary of the trust or the nominee which means that the value of these do not form part of the estate value for Inheritance Tax purposes. This is often the case for any death in service benefits as the employer will have discretion to either pay to a nominee or look at the family circumstances and choose the beneficiary themselves. They sometimes invite applications from the deceased’s family members to consider. Both pensions and life insurance are also treated in this way and will enable a large settlement to pass outside of the estate for Inheritance Tax purposes.

This is a checklist for those who have to deal with the affairs of someone who has passed away, usually this will be relatives:

  1. Depending on the circumstances of the death, a doctor will issue a medical certificate.
  2. You need to register the death at a Register Office within five days. More useful information on how to do this and what to give to the Register Office can be found on: What to do when someone dies
  3. The registrar will give you a certificate allowing a burial or cremation to take place and the death certificate. It is worth obtaining several official copies of the death certificate from the Register Office at this time because you are likely to need them later and ordinary photocopies will not suffice.
  4. Update government departments about the death so that documents like driving Licences and passports can be cancelled. There is useful “Tell us Once” service that allows a number of government departments to be informed in one go. The registrar will be able to tell you more about that.
  5. Think about what other organisations the deceased had contact with and inform them. That could include: pension providers, insurers, utilities companies, social services, landlords, mortgage providers, banks, GP, dentist, optician.
  6.  If there was a power of attorney send the power of attorney back to the Office of Public Guardian along with the death certificate.
  7. Arrange a funeral - there are a number of options for how to pay for the funeral and if you instruct us at Stephensons to assist you with obtaining probate, we can advise you in more detail about those options.
  8. It will then usually be necessary to arrange for a Grant of Probate or letters of administration depending on whether the deceased left a Will or not. This will allow the deceased persons assets to be distributed in accordance with their Will or the rules of intestacy if they died without a Will. It is important to do this correctly and legally with the Grant because if someone starts using or distributing assets without it, they could be sued or even face criminal charges. Sometimes it is not necessary if all property and assets were held jointly or it is a very small estate. But in very many instances a Grant of Probate is required and banks for example will not release money from accounts without one.

    At Stephensons we can advise you on this and make all the arrangements for you, up to obtaining and legally distributing all of the deceased’s estate, usually for a fixed fee. Many of our clients feel that attempting to do this themselves at a time when they are struggling with bereavement is too much. However our range of fixed fees also covers us providing just support to obtain the Grant of Probate and the personal representatives, usually family members, do the rest. Or we can do everything and take the weight off bereaved peoples shoulders.

If you would like to discuss how we can assist you, please call us on 0161 696 6238 or complete our online enquiry form and a member of our Wills and probate team will contact you to discuss your requirements.