Wills and Probate FAQs
If you would like to speak to a member of our Wills, trusts and probate team for advice call us on 0203 837 3658, alternatively complete our online enquiry form and a legal adviser will contact you to discuss your requirements.
Will my family need to go through Probate?
Sometimes people think that if they have a Will their family or the other beneficiaries can simply collect the assets and divide them in accordance with the Will. However, before they release funds, banks and investment holding institutions will often need a Grant of Probate (if there is a Will) or a Grant of Letters of Administration (if there is no Will). If a person who has died owned a house in their own name, a Grant will be needed to sell the house. Generally speaking if you have a house in your own name and/or have assets in the bank of more than £5,000 you will need to go through Probate. This means that the Executors of your Will (if you've made sure you've got one) will have to send the Will to the Probate Registry with an Affidavit telling the Probate Registry who they are and what your estate is worth. A Probate Judge will then grant them Probate to the Will. The Grant of Probate is what your Executors will need to collect in your assets.
Will there be Inheritance Tax to pay on my estate?
Inheritance Tax is charged at a rate of 40 % on the amount of your net estate (your assets less your debts) which exceeds the Inheritance Tax threshold at your date of death. This threshold changes each April (after The Budget usually) and is £325,000 this year. Anything you have above £325,000 could be taxed at 40 %. Some beneficiaries are exempt from Inheritance Tax however. Assets left to your spouse or a charity are exempt. Some assets which you may own get Inheritance Tax relief, such as a business interest in some circumstances. Sometimes, if you have given away assets during your lifetime, this can change what Inheritance Tax your estate has to pay on your death. Sometimes, there is even Inheritance Tax to pay when a gift is made. A carefully drafted Will could reduce the impact of Inheritance Tax on your estate.
There is no Will and no surviving spouse, does everything go to the eldest child?
No. It depends on your family circumstances. If someone dies without a valid Will then their estate is distributed under what is known as the intestacy rules. If someone is married on death all or large proportions of their estate will go to their surviving spouse. If there is no spouse then children may get all the estate equally between them. More distant relatives may share the estate if someone dies unmarried with no children.
We have to sell an elderly relative's house to pay for their care fees, but our relative doesn't understand their affairs anymore, what can we do?
You may need to apply to the Court of Protection to be appointed a Receiver for your relative. This will mean you can deal with their finances and property and sell their house to pay for care fees. The procedure can take a few months sometimes.
I've no mortgage now, can I give my house to my children?
Possibly but there are risks. If you give it away completely you won't own your home anymore, your children will. If they get divorced, are declared bankrupt or die then the place where you live is part of their assets and could be affected. You may have to leave your home through no fault of your own. Always seek advice about the implications and options if you are thinking of gifting away your home or a share in it.