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Summary Wills and Probate Procedure
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In depth notes on the procedure of Wills and Probate
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Probate Practice and ProcedureWhen someone dies, it is necessary for assets in his name to be transferred into the names of his
beneficiaries. To do this, it is normally necessary to obtain a court document authorising the
deceased’s personal representatives (PRs) to transfer his assets.
This document is called a grant of representation. This chapter deals with the process of obtaining a
grant of representation by professionals and with the various documents that the PRs must produce
to the Probate Registry and with whether inheritance tax is payable.
The final paragraphs look at how to deal with problems that arise where PRs die before completing
the administration and at disputes.
The process of applying for a grant is governed by the Non-contentious Probate Rules 1987 (NCPR
1987) (SI 1987/2024) as amended.
The Probate Service now accepts online applications. Applicants use an online portal to complete
and send an online application form and electronically pay the appropriate fee. Applicants must
send supporting documentation, such as the death certificate, original will and HMRC forms
separately.
WHO ARE THE PRS?
The PRs will be either the deceased’s executors or intended administrators. ‘Personal
representative’ is a generic term which covers both.
The executors
If the will is valid and contains an effective appointment of executors of whom one or
more is willing and able to prove the deceased’s will, a grant of probate will be issued to
the executor(s) willing to act.
Administrators with the will annexed
If there is a valid will but there are no persons willing or able to act as executors, then
the next persons entitled to act are administrators with the will annexed, who should be
appointed in accordance with the NCPR 1987, r 20.
Administrators (simple administration)
If a deceased left no will, or no valid will, the estate will be administered in accordance
with the law of intestacy by administrators appointed by the application of NCPR 1987, r
22.
Number of PRs required
1
, One executor may obtain a grant and act alone. This is so, even if the estate contains
land which may be sold during the administration, because a receipt for the proceeds of
sale from one executor is sufficient for the purchaser.
This is in contrast to the position of trustees where, if a good receipt for the proceeds of
sale of land is to be given to a purchaser, it must be given by at least two trustees (or a
trust corporation).
In the case of administrators (with or without the will), it is normally sufficient for one to
act in the administration of the estate.
However, where the will or intestacy creates a life or minority interest, two
administrators are normally required.
Authority of PRs before the grant
An executor derives authority to act in the administration of an estate from the will.
The grant of probate confirms that authority.
Although the executor has full power to act from the time of the deceased’s death, the
executor will be unable to undertake certain transactions (eg, sale of land) without
producing the grant as proof of entitlement to act.
An administrator (with or without the will) has very limited powers before a grant is
made. His authority stems from the grant which is not retrospective to the date of
death.
FIRST STEPS AFTER RECEIVING INSTRUCTIONS
Following a person’s death, the PRs and their professional advisers will have to deal with several
matters quickly.
The deceased’s will
Ascertain whether the deceased made a will. If so, ensure all executors named in the will
receive copies of it.
Directions as to cremation, etc
Give immediate consideration to the terms of the will to ascertain any special directions
by the deceased as to cremation, or the use of his body for medical research or other
purposes.
It is desirable for testators to make their relatives aware of any such wishes before
death.
Details of assets and liabilities
2
, Obtain details of the deceased’s property and of any debts outstanding at the date of
death, by obtaining building society passbooks, share certificates and details of bank
accounts, etc.
Ask the deceased’s bank manager whether the bank holds in safe custody any share
certificates or other property owned by the deceased (the bank manager will require
sight of the death certificate before giving such information).
From these details, it is possible to begin to evaluate the size of the deceased’s estate,
and the amount of any liability to inheritance tax.
Details of the beneficiaries
If there is a will, the adviser must establish the identity of the beneficiaries and the
nature and extent of their entitlements (eg, whether as legatee or as residuary
beneficiary).
If specific legacies have been given, it is important to ascertain whether the property
given by those specific gifts is part of the estate (if not the gift(s) will have adeemed).
If the deceased has died intestate, it is necessary to establish which members of the
family have survived so that the basis of distribution of the estate may be established.
To comply with the obligations imposed by the General Data Protection Regulation (EU)
2016/679, advisers must inform beneficiaries that they are holding personal data on
them, the purposes for which the data will be used and the rights of the beneficiaries as
data subjects.
Missing and/or unknown creditors and beneficiaries
PRs are responsible for administering the estate correctly.
This means that they must collect in all the assets, pay all the debts and transfer the
remaining funds and assets to those entitled under the will or intestacy.
If the PRs fail to pay someone who is entitled either as a creditor or as a beneficiary,
they will be personally liable to that person.
PRs may have two problems:
a) There may be creditors of whom they are unaware or unknown relatives
(eg, children born outside marriage whose existence has been kept
secret).
b) They may not know the whereabouts of some beneficiaries who may have
lost contact with the deceased’s family.
PRs can protect themselves against unknown claims by advertising for claimants
complying with the requirements of the Trustee Act 1925, s 27.
Provided they wait for the time period specified in the section (at least two months), the
PRs will be protected from liability if an unknown claimant later appears.
However, the claimant will have the right to claim back assets from the beneficiaries
who received them.
In relation to unknown claims, the following procedure should be adopted.
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