Probate

When a person dies someone has to deal with their estate (the money, property and possessions left) by collecting in all the money (‘in-gathering’ the estate in Scotland), paying any debts and distributing the estate to those people entitled to it. The term probate (‘confirmation’ in Scotland) means the issuing of a legal document to one or more people authorising them to do this.
The Probate Registry (Sheriff Clerk in Scotland) issues the document, which is called a grant of representation (‘confirmation of the estate’ in Scotland). There are three types:
Grant of probate – issued to one or more of the executors named in the deceased’s Will
Letters of administration (with Will)* – issued when there is a Will, but there is no executor named, or when the executors are unable to apply or do not wish to be involved in dealing with the estate
Letters of administration* – issued when the deceased had not made a Will, or the Will made is not valid
*In Scotland, if executors are not nominated or there is no Will, a petition is presented for appointment of an executor(s).
You will usually need to go through the legal process of probate if the value of the deceased’s assets in their sole name, after paying the funeral bill, is over £5,000. Some organisations will allow the value of the estate to be up to £15,000 before insisting on probate.
Probate can be a time-consuming and a complex legal process, so most people choose a professional to do it for them. Due to the possibility of fraud, we recommend that probate should start as soon as possible. For example, bank accounts can be accessed illegally and funds withdrawn before the accounts have been frozen.

How to deal with probate

There are a range of options available, and it is important to take time to decide which method is right for you.
To help you make this decision you may want to ask for information about how much work you will have to do, how the service is provided and how much it is going to cost. Any professional fees will be charged to the estate, but the fees can be charged in different ways. These include a percentage of the estate, charges for specific tasks that need to be done and perhaps also an hourly rate. Although some estates can be dealt with in about 6-9 months, it can take significantly longer, often a year or more, if the estate is at all complex and if there is a property to be sold.

Use a specialist company

ITC is the largest of the specialist probate companies in England & Wales. Their financial support of Bereavement Advice Centre enables us to offer information, advice and signposting on all the practical issues faced by the bereaved, not just probate.
ITC offers a comprehensive and competitively priced probate service and they are recommended by major high street banks.
Their service includes:
A national network of employees
Provision of a free, no obligation home visit
Competitive with solicitors on cost and less expensive than some banks
A transparent price structure
Payment of the funeral costs from the estate and a refund of disbursements already paid by the the family.
An integrated service for the sale of property.

Do it yourself

A minority of families apply for probate themselves. If they have both the time and the confidence people may derive satisfaction from taking responsibility for completing the financial affairs of the deceased. However this decision should not be taken lightly as some areas are complex and unless it is a very simple estate it will normally take between 6-9 months.
Most people applying for probate are doing so either because they have experience in this field, or the estate they are dealing with is very straightforward. In general this means that the deceased did not own a property of any kind and their personal wealth was not enough for the estate to be liable for Inheritance Tax.
Together with legal professionals at ITC we have created a free guide and letter templates to help you if you wish to apply for probate yourself. You can download the guide from the end of this section.  If you are unable to download the guide, are uncertain whether you will need probate, or are not sure whether you should be administrating probate yourself, please call our helpline on               0800 634 9494      .
ITC provides this guide to callers to Bereavement Advice Centre as part of its commitment to supporting informed choice for the bereaved. If, having read the guide, you are still uncertain, you may wish to call the number given within the guide which is ITC’s own Probate Helpline.
We do recommend that you should seek professional advice if any of the following apply:
You think there is a Will but have not been able to find it
There is any doubt about the validity of the Will
The Will is likely to be contested
The whereabouts of all the beneficiaries is not known
The terms of the Will are not clear
Part of the estate will be subject to Inheritance Tax
There is no Will and the deceased was married with children and the estate is over £250,000
There is no Will and the deceased was married and the final value of the estate is over the Inheritance Tax threshold, currently £325,000.
The estate may be liable to inheritance tax and the husband, wife or civil partner of the deceased has died previously and none or only some of their inheritance allowance was used at that time.
There is no Will and the value of the estate is over £450,000 and the deceased left behind a spouse or civil partner with no children
Irrespective of whether there is a Will, a part of the estate is to pass to children under the age of 18
The deceased has left money or property in a trust
The deceased owned a business or was a partner in a business
The deceased owned land or property that has an unregistered title
The deceased owned land or property abroad
Someone is due to benefit from a life interest in the estate
No more than two years have passed since the deceased inherited from another estate
The estate is insolvent

Use and find a solicitor

You should consider using a solicitor especially if they regularly looked after the deceased’s legal affairs or if you already have a good relationship with one. Please call us if you would like us to help you find a solicitor.
How to find a solicitor
Probate Solicitors Network is a network of solicitors firms being developed by ITC at the request of Bereavement Advice Centre. It is made up of firms with specialist probate expertise located throughout the UK. If, having considered all the options you decide that you prefer to use a solicitor to help with probate we can introduce you to a solicitor in your area.
If Probate Solicitors Network does not have any members in your area we will use the Law Society ‘find a solicitor’ search.
As with all commercially provided services, when you first meet with a solicitor, do feel able to ask as many questions as you want about how the service is provided and about fees as described in the introduction to this section. The Law Society website (http://www.lawsociety.org.uk/choosingandusing/usingsolicitor.page), the organisation to which all solicitors belong, has more detailed information about what to check before deciding to use a solicitor
How to find an estate practitioner
To find an individual who can assist with legal issues visit the Society of Trust and Estate Practitioners website and enter the county in which you live. STEP members are experts from the legal profession who can support you through trust or estate issues. STEP practitioners can be identified by the letters TEP after their name.

Use a bank

Many banks provide a probate service and you may wish to investigate their services further, especially if you already have a good relationship with your bank. In some cases the bank will be named in the Will as being the executor. Please contact the bank as soon as possible so they can help you understand what needs to happen next.
Do contact the bank(s) to notify them of the death as soon as possible to reduce any possibility of fraud on the accounts regardless of whether you intend to ask about their probate service.

Understanding the probate process

The probate process and terminology will differ depending on which country it is being carried out in and whether there is a Will or not.
When there is a Will
The main actions that the executor will need to carry out are to:
Write to all the asset and liability holders requesting confirmation of the value of the assets and liabilities of the deceased at the date of death and of any income received in the last year
Establish if the estate is solvent
Establish if there is sufficient money to meet all legacies in full – if not, deal with the subsequent problems
Complete form IHT 400 if the estate is subject to inheritance tax
Arrange funds or a loan to pay probate fees and inheritance tax
Complete and return all forms to the Probate Registry (Sheriff Clerk in Scotland)
Receive the grant of probate (‘confirmation’ in Scotland)
Place the statutory advertisement for creditors and other claimants subject to the requirements of the particular country (this does not apply in Scotland, where instead the executors must obtain a Bond of Caution)
Present the grant of probate/confirmation to the appropriate authorities
Collect all the assets due to the estate (‘in-gather’ the estate in Scotland)
If the district valuer has not agreed with the valuation of the property, negotiate a new value and arrange payment of the extra tax
Complete the income tax forms and capital gains tax forms for the period of administration
Release sufficient cash to pay all debts
Where relevant, complete stock and share transfer forms and draft an assent for the house
If there has been a claim under the Inheritance (Provision for Family and Dependants) Act 1975, deal with the claim (this does not apply to Scotland)
Prepare the estate accounts
Administer any trusts or life interests created within the will or statute
Obtain approval of the estate accounts and distribute the assets to the beneficiaries of the Will
When there is no Will (intestacy) in England and Wales
If the person died intestate, i.e. no Will was written or no Will can be traced (even if it is thought one may have been written in the past) you can see an overview of how the estate needs to be distributed by clicking on the document below. This hierarchy of distribution is determined by law.
There are differences in intestacy rules between countries. For instance, there are no life interests created in Northern Ireland and in Scotland, close relatives have more automatic inheritance rights.
‘Small estates’ in Scotland
In Scotland the rules are simplified for estates with a total (gross) value of less than £30,000.

Estates

If the estate is very small
If the estate is worth less than £5,000 you may not need to obtain a Grant of Probate to administer the estate. If you are unsure whether probate is required, please call us for advice.
If probate is not required and the assets are held in accounts solely in the deceased’s name, you will need to formally notify the asset holders to release the funds. They will need to see an actual death certificate and not just a photocopy.

Insolvent Estates

Personal debt cannot be inherited provided the debt was incurred in the name of the deceased only, usually referred to as ‘sole name’. However for joint liabilities e.g. a mortgage or utility accounts on which two or more people are named, the survivor(s) does become fully liable for continued payments. If there will be problems for the survivor meeting these commitments it is better to contact the bank, building society or utility providers as soon as possible to make them aware of the changed circumstances. You might also want to seek advice from some of the agencies listed here.
However money owed by the deceased continues to be owed from the estate after their death.
If the person who died had already been declared bankrupt, the trustee or official receiver should be notified and they will continue to deal with the estate.
Great care should be taken in the administration of an insolvent estate i.e. an estate where the value of the assets in the estate amounts to less than the debts left by the deceased. Creditors, people or organisations to whom money is owed, may hold a personal representative personally liable if correct procedure is not followed. If you are named as the executor in the Will of someone who has died leaving an insolvent estate you may want to seek legal advice as to whether you should renounce the role.
Even if the deceased has left a Will, no money can be given to a beneficiary if there are outstanding debts. You should not give beneficiaries any belongings of the deceased that may be of value, such as jewellery or a vehicle, if there is any possibility that they may need to be sold to meet debts. However, it will usually be better to dispose of ordinary household items and clear a property to avoid paying additional rent on a rented property.
If you have any concerns that your home may be at risk please seek legal advice or advice from a specialist debt advisory service before you make any payments – see Useful Contacts.

The order in which debts should be paid

There is a legally laid down priority in which debts must be paid from an estate. This is as follows:
1. The funeral expenses. These should be reasonable and proportionate to the size of the estate. For example one cannot use £6000 of a £7000 estate on the funeral if there are also debts of several thousands of pounds. A gravestone or other permanent memorial is not considered to be part of the funeral expenses. Family members who pay for a funeral from their own money may find it difficult to recover the money later if there are other creditors.Please do not arrange a funeral if you do not know where the money to pay for it will come from. Call us for more information on what to do in this situation.
2. Testamentary expenses.These are the expenses you incur as part of the administration of the estate. You should keep a careful record of these and keep any receipts for petrol or train journeys, postage etc. You may also want to ask for proof of posting certificates at a Post Office which are free of charge.
3. Debts to local and central government.This may be income tax, over-payment of pension or other benefits during the life of the deceased or after their death if there has been a delay notifying the Department of Work and Pensions of the death.
4. Secured creditors. These are loans secured against an asset e.g. a mortgage on a property or a loan for purchase of a car.
5. Preferred debts and Preferential debts – these are very rare and will not apply in most cases. Wages due to employees are preferential debts and this may apply where the deceased received direct payments for employing carers.
6. Ordinary creditors e.g. utility bills, bank loans, credit and store card debts.
7. Interest due on unsecured loans.
8. Deferred debts – an example would be an informal loan between family members.
Legally, all the debts must be paid strictly in this order and all debts in 1 take priority over those in 2 and so on down the list.
Please note that all debts in a category must be paid before moving onto the next category. If there is insufficient money to completely clear the debts in one category money should be paid to each one in proportion to the money owed.

Choices for dealing with the estate

It is possible to deal with an insolvent estate informally. In many cases there is not enough money left even to pay for a funeral. There are two template letters below which you may find helpful to inform creditors if this is situation. This should be done as soon as reasonably possible after the death.
If the situation is at all more complex then you should certainly consider obtaining professional advice from a legal professional – see Useful Contacts. It may still be possible for a professional to deduct their fees from the assets available or you may consider the fees a worthwhile investment to protect you from hostile creditors. A professional can advise whether the estate should be referred to the court to be dealt with formally. Otherwise it is possible for a creditor or creditors acting together to apply to the court for the authority to administer an estate.

Confirmation in Scotland

Confirmation only needs to be applied for under the same conditions as in England and Wales. However, there are some considerable differences between applying for ‘confirmation’ in Scotland and applying for ‘probate’ in England, Wales and Northern Ireland. This is because Scotland has a separate judicial system and the differences between confirmation and probate are matters of law, upheld by the Scottish Courts.
Confirmation is obtained by submitting an inventory form C1, relative form C5 and the form IHT400 together with the necessary paperwork to the Sheriff Court. An IHT400 will have to be completed unless the estate is either exempt or small.
The deceased’s estate is referred to as either heritable property or moveable estate. Heritable property is land or buildings, and moveable estate is money, investments and possessions. Heritable property may be owned solely, jointly or the title may contain a survivorship clause. If the property is owned solely or jointly, the executor is required to obtain confirmation to be able to transfer the title to a beneficiary. If there is a survivorship clause, the title of the property automatically passes to the surviving owner and an extract of the death certificate should be placed with the title deeds.
The title of heritable property can be transferred to a beneficiary by means of a disposition, or by attaching a signed document to the confirmation (or to a certificate of confirmation).
There are different processes to follow, depending on if there is a Will or not.

If there is a Will

Executors must have their appointment confirmed by the Scottish Courts before they can begin the process of administering the estate. An executor named in the Will is known as an executor-nominate.
Unless an executor has chosen to decline office or is already deceased (known as predeceased), confirmation is obtained in favour of all the nominated executors.

If there is no Will

If there is no Will, or the nominated executor is unwilling or unable to accept office, or the testator was predeceased by the nominated executor then an application should be made to the Sheriff Court for the appointment of an executor, known as an executor-dative. This must be applied for in the following order of priority:
Anyone who is entitled to inherit all or part of the estate
Next of kin (nearest collateral relation)
The creditors
Anyone entitled to a legacy from the estate, i.e. a ‘specific legatee’
The procurator fiscal
If the deceased did not make a valid Will, the order of priority remains the same, except that the next of kin, or a surviving spouse or civil partner would have preference.
The executor-dative must obtain a ‘bond of caution’ from an insurance company. This is a guarantee made by the insurance company that the executor will distribute the estate in accordance with the rules of intestacy. It must be lodged with the inventory form C1 and relative form C5 with the Sheriff Court. If the surviving spouse’s or civil partner’s prior rights exhaust the estate, or there are no surviving issue (children or descendants of predeceasing children) then a bond of caution is not required (see ‘Prior rights’ below).

Small estates

In Scotland, if the total amount of the deceased’s gross estate is £30,000 or less, this is known as a small estate. The Sheriff Clerk’s staff will assist with the completion of the forms C1 and C5. There is a court fee for the provision of confirmation to the estate but there is no additional fee charged by the staff at the Sheriff Clerk’s Office.
For larger estates you may want to consider using a professional. Visit the Law Society (Scotland) website to find a local solicitor.
After the funeral expenses, debts and liabilities have been paid, The Succession (Scotland) Act 1964 determines the distribution of an estate in the event of intestacy or partial intestacy.
There are three categories:
1. Prior rights – a surviving spouse or civil partner has a right to:
The deceased’s dwelling house (or a share) up to a value of £300,000
A share of the furniture, furnishings etc up to a value of £24,000
Cash up to a value of £75,000, if there are no surviving issue (children or descendants of predeceasing children), or £42,000 if the deceased was survived by issue
2. Legal rights
If the estate has not been exhausted by the satisfaction of the surviving spouse’s or civil partner’s prior rights then they are also entitled to claim legal rights in the estate. Legal rights only apply to the net moveable estate (money, investments and possessions) and do not extend to the heritable property (land or buildings).
A surviving spouse or civil partner can claim a one half share of the net moveable estate if there is no surviving issue (children or descendants of predeceasing children); but only a one third share if there is surviving issue. Likewise, the surviving issue can claim a one half share of the net moveable estate between them, if there is no surviving spouse or civil partner; or a one third share if there is a surviving spouse or civil partner. The surviving issue’s share is known as legitim.
3. The free estate
This is the remainder of the estate after the funeral expenses, debts and prior and legal rights have been settled. The order of those entitled is set out in detail in the Succession (Scotland Act) 1964.

Probate in Northern Ireland

Probate in Northern Ireland follows a very similar to the process in England and Wales, but there are some important differences.
Probate in Northern Ireland is administered by the Northern Ireland Courts Service. A very helpful information booklet produced by the Courts Service is available at http://www.courtsni.gov.uk/NR/rdonlyres/3F5B0018-B401-4ABA-9656-57D120ED7040/0/p_ul_deceasedpersonsestate.pdf

may be required if the estate is worth more than £10,000, and initial enquiries and forms can be obtained from the national HMRC probate helpline on               0845 302 0900      .
If there is a Will
If the deceased lived in Northern Ireland and you are named as an executor in their Will, you may apply in person by appointment at the appropriate office, and you do not have to use a solicitor. A personal application can be made at:
Probate Office
Royal Courts of Justice
Chichester Street
Belfast
BT1 3JF
If the deceased lived in Counties Fermanagh, Londonderry or Tyrone, applications can either be made in Belfast, or at:
District Probate Registry
The Courthouse
Bishop Street
Londonderry
BT48 6PY
If there is no Will
If there is no Will, a personal application can only be made if the next of kin lives in the UK. Otherwise a solicitor must be used.

Probate on the Isle of Man

Probate on the Isle of Man follows a very similar to the process in England and Wales, but there are some important differences.
Probate is administered by the General Registry within the Isle of Man Courts of Justice, and may be required if the estate is worth more than £5,000.
You can apply for probate yourself as long as you live on the island, but if the estate is complex you may choose to use an Isle of Man advocate, which is a lawyer who combines the role of a solicitor and barrister. If you do not usually live on the Isle of Man and the asset holder is willing to do so, you may be able to apply for probate using their address.
To find an advocate, you can visit the Isle of Man Law Society website or call               01624 662 910      .
The General Registry can guide you on the process of application, but cannot give you advice about the distribution of the estate. Once probate is granted, the documents are stored in the Deeds Registry.
The General Registry
Isle of Man Courts of Justice
Deemsters Walk
Bucks Road
Douglas
Isle of Man
IM1 3AR
Tel:               01624 685265
If there is no Will
If there is no Will, a grant is usually applied for by a beneficiary. The beneficiary must give notice of their application to all other people entitled to a share of the estate who are a resident of the Isle of Man.

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