Probate Solicitors
Find out how we can help with Probate and Estate Administration.
What is Probate?
‘Probate’ is the common name for the process of dealing with a deceased person’s affairs. That responsibility might fall on you if you are their next of kin or are named in the will as being their Executor. The ‘Probate’ process includes applying for a Court Order, known as a Grant of Representation (commonly referred to as a ‘Grant of Probate’) which recognises your authority to deal with a deceased person’s affairs. This Court Order allows you access to their data and finances so you can pay off the deceased’s debts from their own resources, cash in assets and distribute wealth to anyone who is supposed to inherit.
what areas of probate
What areas of probate law do we cover?
The team at Mullis & Peake LLP Solicitors can offer you a wealth of collective experience and deliver high quality work in all matters relating to Wills and estate administration, offering particular emphasis on inheritance tax planning.
Will Disputes
Disputes over someone’s Will and their Estate can be unpleasant and distressing as they often involve close family relationships. It may be possible to contest a Will if there are concerns that the Will is invalid; if a solicitor or Will writer has given negligent advice leading to mistakes in the Will; or if there is concerns about undue influence.
‘Probate’ is the common name given to the Court Order which recognises the authority of the person nominated to look after the deceased person’s affairs. There are time limits for contesting a Will after a Probate has been issued.
Contentious probate is where there is a challenge to the Probate process. It can include: funeral disputes; challenging the Executor of Will or challenging who should inherit and how much they should receive, perhaps because there is a mistake in the Will, the Will is invalid or the inheritance rules are unfair.
Promises Or Gifts Before Death
It sometimes happens that a person makes a significant gift prior to their death. A beneficiary who receives less, or nothing, after death as a result may be able to challenge the gift .
Concerns about the legitimacy of significant lifetime gifts arise on similar grounds to inheritance disputes focusing on a Will, for example because unfair pressure was placed on the person making the gift or they did not have the appropriate level of capacity at the time to make an informed decision.
Trusts and Probate Enquiry
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Death Without A Will
If a person dies without leaving a valid Will, then their assets will be divided in accordance with a pre-determined set of rules, known as the intestacy rules. This means that their estate may not pass how their loved one might expect. For example, a long-term cohabitee may not inherit at all under the intestacy rules. Alternatively, there may be such a large class of family members who are due to inherit that the sums received may end up being very small. Our expert team recently dealt with a case where there were 72 beneficiaries, some of whom received less than £300.
TrustsÂ
Trusts can be quite technical and complex in nature, but essentially a Trust is a separate legal entity which can hold money or property. Property or assets can then transferred to the Trust which will become the owner. The person who sets up the Trust can dictate their own set of rules which determine how the money or property can be used and who is intended to benefit from it.
A trustee is a person who takes responsibility for managing money or assets that have been set aside in a trust for the benefit of someone else. You can read about trustee responsibilities here.
Inheritance taxÂ
Inheritance Tax (IHT) is a tax on the estate of someone who has died, including all property, possessions and money. The standard Inheritance Tax rate is 40%. It is important to get good legal advice when writing your Wills which can help minimising inheritance tax. Always speak to a qualified lawyer.
Lasting powers of attorneyÂ
A Lasting Power of Attorney (LPA) is a document that allows you to appoint one or more people (known as attorneys) to help you make decisions, or make decisions on your behalf. Here’s why you should have one and what the different types are.
Recent cases
Intestacy
Mr K died without leaving a Will. This meant that his estate passed under the automatic intestacy rules which apply to people who do not leave a Will. Rather than the people or causes closest to him inheriting his wealth, which was over £500,000, the default rules had to be applied which saw a total of 72 family become entitled to inherit; some of whom had no real relationship with Mr K at all. The group of beneficiaries was so large that the wealth became diluted to the point where some beneficiaries received less than £300.
Trust
Mrs N died a widow leaving one adult daughter who was sadly addicted to alcohol and unable to work owing to poor health. Mrs N left her entire estate to a trust, set up to benefit her daughter. She named Mullis & Peake as her trustees which meant the firm was responsible for running the trust and were able to pay out the funds on the terms set out by Mrs N under her will.
As the trust was deemed to own the money from the estate, it meant it did not affect the daughter's means tested benefits. Because Mullis & Peake was the trustee it meant the daughter did not have free access and so would not be tempted to use the funds to aggravate her poor health and fuel her alcohol addiction. The Trustees are able to ensure the funds are used sensibly and last as long as possible, ideally for the remainder of the daughter's life.
Strained family relations
Mrs S died a widow, leaving two children. However, the children had a strained relationship and did not get along. At the time of writing her Will Mrs S was concerned that her children would not work together to administer her estate after she passed away. She also did not trust one of them to act alone, fearing they would disadvantage the other child.
Mrs S named Mullis & Peake as Executors of her Will. This meant that we were able to ensure her wishes were fully complied with. The house was sold on the open market achieving the best possible price and all assets were cashed in, with a fully itemised breakdown of the estate’s finances being shared with the children to satisfy themselves they were receiving the correct share.
Emergency probate and protecting interest of minors
Ms M passed away suddenly and unexpectedly following an attack at her home, leaving young children under the age of 18. Ms M was experiencing financial difficulties and her home was the subject of possession proceedings by the mortgage lender immediately prior to the death.
Mullis & Peake asked the Court (Probate Registry) to act as Personal Representatives in order to protect the interests of the under-age children. An emergency Probate application was made which was issued by the Court in a matter of days. This allowed assets to be cashed in and sold quickly in order to discharge the mortgage and other debts to avoid possession proceedings, allowing the children to remain in their home whilst the full Probate process was completed. The funds were then held in a trust account for the benefit of the children until they turned 18 years of age.
Frequently asked questions
‘Probate’ is the common name used for the Court Order which recognises the authority of the person who is responsible for dealing with another’s property, money and possessions (their 'estate') when they die.
On average, the whole probate process can take in the region of 12 months.
If you are the person responsible for dealing with another person’s estate, you will likely be unable to sell property, or cash in valuable assets without first obtaining ‘probate’.
You can apply for probate yourself. Most applications need to be made online but some more unusual circumstances require a paper application by post. It can often be reassuring to get expert advice from probate specialists, especially if you are unfamiliar with preparing inheritance tax returns or if the estate is classed as complicated and needs to be made via post. You should particularly consider legal advice if the terms of the Will are unclear or you think there might be a challenge.
- A copy of the deceased death certificate.
- The original last Will (if applicable)
- Either an online or paper Probate application form
- Many estates have to file inheritance tax returns
- Often you have to send supporting evidence to HM Revenue & Customs when sending the tax return. This might include property or business valuations
Financial institutions set their own internal limit for when they will release funds or assets without Probate. Some insist on Probate for anything over £2,000, others up to £50,000. It is best to contact each one and ask its requirements. You will also need probate if the estate becomes liable to pay inheritance tax.
There are different ways solicitors might charge for assisting with Probate. Some charge based on the time spent doing work, some charge a percentage of the value of the estate and some charge a combination of both.
Paying a percentage of the estate value can often be more expensive, particularly if there is a property. Generally speaking, paying strictly on the basis of the time spent doing the work is the more cost effective option for the estate.
Mullis & Peake only charges for the actual work done and does not take a share of the estate. The fees usually start at £2,000 plus VAT at 20% and expenses.
Our regulators require us to provide pricing information on our website for some of the areas of work that we undertake, we therefore set out pricing for these areas, as well as those areas of work that we undertake on a fixed fee basis here. For a quotation on fees on the other areas of work we cover, you will need to contact the teams directly to discuss your circumstances.
A grant of probate will not be needed where the deceased owned assets in joint names as the joint party already has authority to deal with the asset.
Sometimes, probate can also be avoided if the person who died only owned a small amount of money and didn’t have a property to sell or transfer.
Only certain people can apply for probate. If the deceased made a Will, the person named in the Will as Executor can apply. If there is no Will, the law sets out a default set of rules, known as the intestacy rules, of people who can apply in priority order. It usually starts with the closest blood relative. These rules would also apply if all Executors named in a will have pre-deceased or are unable to act (for example due to mental incapacity).
An executor is the person who's responsible for looking after the financial affairs of the deceased. In terms of how many executives you can appoint, you can appoint as many as you wish. However, it's important to bear in mind that only four executors can apply for the grant of probate to be taken out in their names.
Yes, you can appoint a professional executor, however, do bear in mind they usually charge a fee for carrying out that role and that fee would be paid out of the funds in the estate.
There are things that you can do to reduce or possibly even completely eliminate the amount of inheritance tax that you pay. The best thing to do is to get expert advice during your lifetime. Now, an estate planner can help you plan your affairs and your money in a tax efficient way to make sure that when eventually the time comes and you pass on, your loved ones pay as little or hopefully no tax whatsoever. Now, if you haven't done the tax planning in your lifetime it can still be possible to manage your affairs and apply certain reliefs after you have passed away to again help reduce or eliminate the tax completely. But again, we would say because it is a complex area if the best thing to do is always seek expert advice from someone who knows all about inheritance tax.
Whether you have a Probate claim, i.e. whether you can apply for the grant and also inherit from the estate, is dependent on your relationship to the deceased. If the deceased has not left a valid Will, a Will, of course, outlines who the executives of this state are and who benefits from the estate, then the rules of intestacy will apply. This may mean that certain people may benefit from the estate that the deceased did not want to. This is why having a Will drafted to reflect your wishes is so important. Where there is an intestate estate, the order of entitlement determines who is entitled to apply for the grant of letters of administration and also who will inherit from the estate.
There is no time limit for probate to be claimed, but you do need to be aware that there are time limits for claiming certain tax reliefs. So if you were looking to reduce your tax liability, there might be some time limits for that and also if you needed to change how the wealth is distributed and shared about, there are time limits for doing that as well.
The rules of intensity would apply in this scenario, as the deceased has died intestate, which means with no valid Will. The intestacy rules only apply to property that the deceased was able to dispose of by their Will if they had held a valid Will. It does not extend to property held as joint tenants or under interest under a trust. It is important to seek legal advice on who would inherit the estate, as particularly in this scenario, it is dependent on numerous factors, including, but not limited to, the estate value and the date of death.
Mullis & Peake have a specialist team in Probate and Wills ready to help you. Contact us online today or call us on 01708 784000.
Alternatively, request a call back to have one of our team contact you at a time that suits.
It can be difficult knowing what to do or where to start, particularly in such a distressing situation. We have created a handy checklist to help you navigate the steps involved.
Our latest insights
Martyn ​is our Chairman and the firms' Compliance Officer for Legal Practice
Trudi is an Associate at Mullis & Peake, with extensive experience in the Wills and Probate field.
