Wills, Trusts and Probates

Managing an Estate when someone dies

When someone dies the management of their estate falls to those left behind. This can involve:

  • Locating the Will;
  • Researching and assessing the value of the estate;
  • Collecting in assets and dealing with creditors;
  • Dealing with income, capital gains and inheritance tax liabilities;
  • Applying for the grant of representation;
  • Resolving disputes between beneficiaries;
  • Transferring the legal title of assets to beneficiaries;
  • Drawing up estate accounts; and
  • New Proposed Fee Structure for Grants of Representation.

How can we help you?

Estate less than £5,000

In general if the deceased left a Will and assets of less than £5,000 it is likely that the Executor will not need a solicitor to deal with the estate.

Estate over £5,000

If the estate is worth more than £5,000 then the personal representative will probably need to obtain letters of administration or a grant of probate from the Court and will need to complete and lodge an Inland Revenue account.

Her Majesty's Revenue and Customs (HMRC)

HMRC now require full details of what is in the estate including gifts made in the past and assets passing by survivorship. We can help you with this and ensure that the right information is presented to the HMRC.

Is the Estate Tax-Efficient?

Our lawyers can advise you on the best way to administer the estate to minimise tax liabilities. At the moment, the law allows a beneficiary to vary the terms of a Will or the intestacy rules for a limited period where they affect his or her inheritance. If the beneficiary doesn't want or need the gift it can be to the benefit of future generations to use a variation to protect family wealth.

We can advise you on how a suitably drafted variation may reduce the tax payable on the estate or reduce the payment of tax by a beneficiary in the future.

Intestacy Provisions

If a person dies without leaving a Will they are said to have died Intestate and their estate will be distributed under the Intestacy Rules.

If a person dies intestate after 1st February 2009 with a surviving spouse or civil partner and children the spouse/civil partner will be entitled to a statutory legacy of £250,000, the deceased’s personal possessions and a life interest in half of the residue of the estate. The children will be entitled to the remaining half immediately and the other half, that is the subject of the life interest, will revert to them upon the spouse/civil partner’s death.

If a person dies with a spouse/civil partner and no children then the legacy to the spouse/civil partner increases to £450,000 plus the personal chattels with the residue again being divided into two shares, half for the surviving spouse/civil partner absolutely with the remaining half being divided between the relatives of the deceased in an order of priority.

If you do not wish your estate to pass under the Intestacy Rules then it is important to make a Will setting out your wishes. It is especially important for unmarried couples to make Wills as there are no provisions under the rules for couples living together and your partner could end up getting nothing.

Inheritance Act Claims

Under the Inheritance (Provision for Family and Dependants) Act 1975 certain family members and other dependants can make a claim against your estate if you don't make provision for them in your Will.

Surviving spouses and civil partners are in a special position in that the court may well order that they should have a "fair share" of the family's assets. Other members of the family who were dependent on the deceased, e.g. children, may claim a share of the estate if the Will does not give them one. The other main class of person who can claim under the Act are cohabitees — defined as living as husband and wife for 2 years or more at the time of the death. In this case, the cohabitee does not need to have been strictly dependent on the deceased in order to receive provision.

Contesting a Will

There are many ways in which a Will can be contested, including that the Testator did not have capacity when they made the Will or they were under duress or an undue influence. The only persons standing to contest a Will must be someone named on the face of the Will, i.e., a beneficiary, and someone who stands to inherit from the Testator if the Will was invalid.

Courts will not necessarily look to "fairness" during will contests. In other words, just because the provisions of a will may seem "unfair" does not mean that the will is invalid. Therefore, wills cannot be challenged simply because they seem unfair. A Testator has a legal right to dispose of his or her property in any way that is legal.

Deeds of Variation

There are many reasons why beneficiaries may wish to vary or redirect inheritances. The main reasons are to save inheritance tax by redirecting part of the inheritance to e.g. children to in order to take advantage of the IHT nil rate band, to alter the interests under a Will, to redirect an asset held in a joint tenancy which would otherwise pass to the surviving joint tenant and to provide for someone who has been omitted from a Will or who has not been given adequate financial provision in a Will.

Overseas Re-Seals

When someone who lives outside the UK dies, authority to deal with their estate is usually governed by a grant of representation from the country of their domicile. If the deceased also owned assets in the UK it may be necessary for an application to be made to ‘reseal’ the original grant of representation in the UK. This allows the personal representative to then deal with the assets. Resealing a grant is a relatively straightforward process and can be dealt with as soon as the original grant of representation of the country of domicile has been obtained.

New Proposed Fee Structure for Grants of Representation

There is currently a fixed fee for obtaining a grant of probate for an estate - £215 if the executor is making a personal application or £155 if solicitors are instructed to apply.

The Government’s proposed new fee structure for grants of representation such as a grant of probate or grant of letters of administration is as follows:

Value of estate (before inheritance tax)                                           Proposed fee

Up to £50,000 or exempt from requiring a grant of probate                             £0

Exceeds £50,000 but does not exceed £300,000                                        £300

Exceeds £300,000 but does not exceed £500,000                                   £1,000

Exceeds £500,000 but does not exceed £1m                                           £4,000

Exceeds £1m but does not exceed £1.6m                                                £8,000

Exceeds £1.6m but does not exceed £2m                                              £12,000

Above £2m                                                                                              £20,000

For further information on the proposed fee changes and on how to sign the petition please click here.

Contact

Henry Anstey