Probate - do I need a lawyer?
What is probate?
Probate is the general term used for the legal process of administering the estate of somebody who has died.
What does it mean in practice?
When a person dies, the assets in their sole name are frozen and the only people who can have access to them are the personal representatives (PRs). In order to administer the estate and collect in the assets of the deceased, the PRs have to obtain a legal document to prove their status to third parties, such as the deceased’s bank.
Can I deal with it myself, or do I need a lawyer?
At Boyes Turner, we are often asked by our clients whether they can deal with the probate themselves - and the choice is theirs – even where we are appointed as executors in the deceased’s Will, we will take account of the family’s wishes and step down as executors (by “renouncing probate”) if that is what the family want.
We always advise clients that we can do as much or as little for them as they want and sometimes we are instructed to deal with all matters relating to the administration of the estate, including such items as dealing with the deceased’s utility supplies, and sometimes we are instructed to deal with limited matters only such as the application for probate itself.
What is actually involved?
The paperwork which needs to be completed to make an application for probate depends largely on the value of the estate and the assets within it (the paperwork being more complex for larger estates, especially where there is Inheritance Tax to pay) and we find that some clients feel comfortable completing the paperwork themselves whilst others ask us to complete the paperwork as they feel overwhelmed by it or just do not have the time to complete it themselves.
We often find that elderly clients ask us to help them to a greater extent but they may have family members who are willing to assist too.
We are happy to take over a matter where the family have started to deal with the paperwork but encounter difficulties and ask us to step in.
When a person dies, one of the first things to be done is to write off to all of the deceased’s banks and building societies, share registrars and so on to obtain details of the assets of the estate as at the date of death and also arrange valuations of the house and personal goods, if relevant. Some clients deal with this themselves and then pass on the papers they receive to us to prepare the probate application which includes an Inland Revenue Account even where there is no Inheritance Tax to pay.
Once the Grant of Probate has been issued, some clients deal with matters from there, cashing in the assets and so on, whereas sometimes we will deal with that ourselves and deal with paying out the funds to the beneficiaries in due course once all other formalities have been completed.
Such formalities include the completion of Estate Accounts which set out all the assets and liabilities of the deceased as at the date of death together with all funds paid to and from the estate since that date.
Particular help may be needed where the deceased died without leaving a Will as the intestacy rules will then need to be looked at – these are the rules which automatically apply when somebody dies without leaving a Will and determine who the estate passes to and who is entitled to take out the Grant.
Advice may also be needed on the terms of the deceased’s Will, particularly if trusts have been set up in the Will.
How can I protect the assets?
We can also spot the opportunity for setting up trusts for asset protection and for securing significant Inheritance Tax savings whilst administering an estate, for example in redirecting money down to younger generations and in identifying potential claims for the “transferable nil rate band” which can save up to £130,000 in Inheritance Tax at current rates. The transferable nil rate band came into force in October 2007 and can double the Inheritance Tax exemptions for married couples and registered civil partners.
In essence, we are guided by the deceased’s family when dealing with probate matters and are on hand to provide advice to the family as and when required.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.