Wills & Probate

When a person passes away, all of the belongings, money, and property that they leave behind (also referred to as their ‘estate’) will need to be dealt with.

In order to do this, you will usually be required to first obtain a grant of probate.

What is probate?

Probate refers to the process of applying for a ‘grant of representation’ to authorise you to sort out the deceased’s estate, gather their assets, pay their debts, and then distribute their estate.

The probate process will be different depending on whether the person has left behind a will.

If there is a will in place, then the will should name one or more ‘executor’.  The executor/s will need to apply for a ‘grant of probate’ to allow them to manage the deceased’s estate.

If there is no will, then the person is said to have died ‘intestate’. In this instance, the deceased’s next of kin, or another willing friend or relative, will need to apply for a ‘grant of letters of administration’

The low-cost, minimum fuss option to help those you leave behind.

Death may come to us all, but confronting the difficult questions about who or what we leave behind certainly doesn’t. And with all of us living longer, and increasingly complicated family relationships that are not even recognised under the letter of the law, can quickly turn straightforward understanding between family about who gets what, from common family knowledge into the lifelong feuds.

Many times the value of the assets (including cash money), property (primarily, the family home) and personal possessions (any heirlooms, collections, antiques, and other items of sentimental value) – collectively known as a deceased person’s ‘estate’ – in bitter dispute can be very modest. They might even lose, rather than gain, in fighting such a dispute – what people will stubbornly fight the memory and love they had for the deceased.

What happens when probate is not obtained and there is no will?

Most estates, but not all, are required to go through the probate process. The only time when probate may not be required is when the person who has passed away had a very small estate worth less than £5,000, or if all their assets were owned jointly.

If neither of these apply and the deceased has not left a will behind, then their estate will be frozen until a grant of probate has been obtained.

If you die without making a will you die in what’s known as ‘intestacy’. The rules of intestacy have been established for hundreds of years and have a strict order as to who automatically has a claim on the estate.

Claims for a share of an intestate estate are made at the ‘Probate Registry’ the public body responsible for dividing the estate of those who die without making a will:
If you are living with a partner of many years but technically unmarried there is no automatic right to inherit your share of the house;
If you have step-children or, again, consider your partner’s family as your own, they again would have no automatic claim to your estate;
If, on the other hand, there are blood relatives you have difficult or even non-existent relationships with, they automatically jump to the front of the queue;
Theirs is a presumption of inheritance. it is for the other people who share no blood or legal ties to you (no matter how close you actually are) to prove they deserve or were promised something.

The presumptive claim can be overturned. Judges would never ignore 30 years of loving partnership nor clear evidence of a loving relationship to step-children and step-grandchildren, but it is for those people to prove their case, by lodging a challenge at the Probate Registry.
Challenges prevent anyone from getting anything, run up expensive legal fees, and take years to resolve, leaving family members In limbo.

What happens when probate is granted?

Providing there are no problems with the application, obtaining a grant of probate generally takes between 4 and 8 weeks.

Once you have been granted probate you have the legal authority to access and manage the deceased’s estate.

The first thing you will need to do is to send either your grant of probate or letter of administration to the financial institutions that the deceased had accounts with. Without completing this step, you will not be granted access to the funds.

Once you have access to the funds you will need to pay an initial instalment of inheritance tax.

Now you’re ready to begin sorting out the estate. This may include any number of the following tasks:

• Distribute assets according to the will or intestacy rules.
• Close down bank accounts.
• Pay debts.
• Cash in investments.
• Sell or transfer property.
• Transfer pensions.

What belongings go through probate?

It is usually the case that most of the deceased’s estate will be required to go through probate before it can be accessed, sold or transferred.
Their estate comprises all money, possessions and property left behind, including:

• Property.
• Money in the bank and savings accounts.
• Investments.
• Possessions.
• Vehicles.
• Assets in other countries.
• Business assets.

There are, however, a few instances when probate may not be required, these include:

• Jointly owned assets – These are usually automatically transferred to the other account holder.
• Some insurance policies and pensions – These may be under a discretionary trust and handled separately by the appointed trustees.
• Low-value items – A grant of probate may not be required for possessions that are worth less than £500.

Why make a will?

What making a will can prevent is all of these unnecessary conflicts, even when it is as simple as ‘Divide all of my estate equally between my four children’. It may be no fun to consider, but even just a minimal consideration can avert major disaster, and we are here to help. We can accommodate any special considerations and gifts so long as they do not invalidate the will.

The will process for joint tenants and tenants in common

Many people don’t realise that you can own property with your partner (or others) in different ways.

Also, the way you own your property can have a significant impact when writing your will. There are two main ways of owning a property jointly. These are known as Joint Tenants and Tenants in Common.

Both have their advantages. Under Joint Tenancy, both partners jointly own the whole property, while Tenants-in-Common each own a specified share. When a property is owned as Tenants in Common, each individual owner can decide who should inherit their share of the property in their respective wills. If there is no will, a deceased owner’s share will pass in accordance with the Rules of Intestacy

Read more on the difference in joint tenants and tenants in common.

Probate Costs

We cannot give an immediate accurate assessment of costs that will be charged.   We can say that the hourly rate used to assess costs would be £200.00 per hour plus VAT.   The fee-earners that we have in the office at the present time are qualified, that is three Solicitors and one Chartered Legal Executive.    If in future we do employ an unqualified fee-earner then the hourly rate would be £150.00 per hour plus VAT.   The likely time expended on resolving a probate matter would be 8/12 hours.   This is a guide until we see the full extent of paperwork related to the matter you present to us.

We are willing to have an initial no obligation discussion to assess your needs from which it may be possible to give you a fixed fee if you would prefer certainty.

Expenses or disbursements for a Probate case would be as follows (the list is not extensive).

1. Probate fees – £155.00 (the Government are likely to increase in the near future, this figure is stated as at August 2021)
2. Copies of Probate – £1.50 per copy
3. Trustee Notice in the Metro and London Gazette – in the region of of £350.00

We have no control over the cost of expenses or disbursements.

Will Costs

Wills – We charge £150.00 inclusive of VAT for one will or £200.00 inclusive of VAT for joint/mirror wills (for those in a partnership).   Would you please be aware that we do not undertake estate planning and have no expertise in taxation law and thus if Inheritance Tax is an issue then you may need to consider obtaining a specialised Trust Deed.

Please do not hesitate to call us on 0151 256 7898 for more information or if you have any queries. You can also email us: info@waferphillips.co.uk