What to do when someone dies - a guide to probate
Dealing with the financial affairs of a loved one who has died is a challenging responsibility at an already emotional and stressful time. Our team of experienced solicitors are here to assist you with a simple guide of what to expect.
After coming to terms with the loss of a loved one you may also be faced with the practical matters of dealing with a death. Initially the death must be reported to a doctor who will issue a medical certificate.
A funeral director can then begin to make arrangements and the death certificate can be issued.
It is advisable to retrieve the Will to check the identity of the executors unless you prefer to wait until after the funeral. It is important to seek the advice of a legal professional, as a solicitor can relieve any complex issues and speed up the process by dealing with the legal paperwork.
Registering a death
When someone dies, the death must be registered with the local Registrar of Births, Marriages and Deaths. Usually a close family member registers the death. All deaths in England and Wales should be registered within five days of the death unless there is a delay due to the involvement of the coroner.
At the register office you will need
- The medical certificate of cause of death, signed by the doctor, unless it has already been sent straight to the registrar
- The NHS medical card of the deceased
- The deceased’s birth certificate, if you have it
You will be asked for the following information about the deceased:
- Full name, including maiden name (and any other former names or aliases)
- Address and occupation
- Date and place of birth as shown on the birth certificate
- Date and place of death as shown on the medical certificate of cause of death
- Name and date of birth of the deceased’s spouse whether living or not (and in Scotland details of former spouses)
- Spouse or civil partner’s occupation
When someone dies you need to apply for the legal authority to deal with their property, money and possessions (also known as their estate). This is known as the grant of representation and is the legal authority obtained through the probate registry.
What is probate?
Probate is a term used for the legal document you require in order to deal with the estate. The legal document will be referred to as a grant of probate if there is a Will or grant of letters of administration if there is no Will. It gives those who are responsible permission to deal with the estate when the value of the estate is over £5,000 after the funeral costs have been deducted. However, certain assets such as shareholdings and life policies may require the grant even if the estate is under £5000.
Is there a Will?
The Will should appoint executors who are responsible for managing the estate.
What is an executor?
The person outlined in the Will who is responsible for dealing with the deceased’s estate. It is a position which carries duties and responsibilities. If the executor is not sure about the deceased’s financial dealings they should consider placing statutory advertisements which are legal notices to protect the executor against unknown creditors.
What is an estate?
An estate is the value of the deceased’s assets less any debts, such as the funeral account.
If there is no Will
If there is no Will the individual has ‘died intestate’ therefore any assets will be split according to the rules of intestacy. These rules set out who is entitled to share in the estate in a fixed order. The same rules will apply if a Will is not legally valid. Any Will or intestate estate is capable of being varied if all beneficiaries are in agreement. Please speak to one of our team for more information.
Grant of representation
To gather in certain financial policies and bank accounts you must apply for a ‘grant of representation.’ This means you will be officially appointed to carry out the expressed wishes according to the Will or rules of intestacy and distribute the estate.
You will need to complete the relevant forms and have all the figures to hand. In some complex cases this could take several months. Your legal advisor can help with your application and present the correct evidence in order to speed up the process.
A grant of representation may not be needed if any assets are jointly owned. You will need a copy of the death certificate to establish how much the estate is worth and if assets can be obtained without a grant of representation.
Inheritance tax
Inheritance tax must be paid before a grant of representation is issued. If it is not paid within six months after the person’s death, interest will be applied and additional financial penalties may be incurred. In some cases the tax can be paid in annual instalments. The rates of inheritance tax can be confusing but your legal advisor will be able to guide you through the process ensuring you comply with rules set by HM Revenue and Customs.
Distributing the estate
Once any property is sold and monies are collected in, the debts should be paid. Estate accounts should be produced showing monies coming in and going out of the estate. All beneficiaries should be named in the accounts and their entitlement documented. Once any outstanding debts have been paid the estate can be distributed to those who are named in the will or under the rules of intestacy.
Documentation
If inheritance tax is paid, all paperwork should be kept until HM Revenue & Customs have sent a letter of clearance (stating all their enquiries are complete). This can sometimes take a number of months after the grant of representation has been issued.
If there is a potential challenge to the estate, time limits can apply in which to bring a challenge, based on the date of the grant of representation. A member of our team will be able to assist further with advice around this.
If you would like to speak to member of the specialist probate and estate administration team here at Stephensons please call us on 0203 837 3658 and we would be happy to discuss your situation and how we can help. You can also complete our online enquiry form and we will contact you directly.
