Probate and Estate Guidelines

Eaton-Evans and Morris is a leading law firm in Pembrokeshire and we have been in existence for over 200 years and have acted for many of our clients and families for several generations.

Estate administration can be an extremely daunting procedure, especially when you are trying to cope with the loss of someone close to you.  In addition this is something that you may not have come across previously and you may be unsure as to the procedures involved.

We have an established Private Client Department with experienced Solicitors who can deal with the administration of an estate quickly and efficiently whilst being sensitive to the feelings of the family at what is often an extremely difficult time.  We are flexible in the service we provide in that we can manage the entire administration of the estate for you or alternatively just deal with the obtaining of the Grant of Probate or assisting in post death Tax planning through the drafting of Deeds of Variation.  You will find our fees extremely competitive, especially when compared to those charged by Banks and other institutions. 

This guide is intended to help you through this process with an overview of what is required as well as how we can help you.

1.         Registering the death

The death must be registered within 5 days of death, usually at the Register Office in the area where the death occurred, although it can by at any other Register Office in the UK if this is not convenient.  It is likely that you will need to make an appointment to see the Registrar.

The person who registers the death should be:

  • a relative of the deceased or
  • a person who was present at the death or
  • the person who is arranging the funeral
  • A personal representative to the estate

In order to register the death you will need the following information:-

  • Cause of Death Certificate (issued by the Doctor and or Hospital)
  • the deceased’s full named (including maiden name), address, occupation and marital status
  • date and place of death
  • date and place of birth
  • details of any deceased spouse and next of kin
  • the maiden name of the deceased, if applicable.

Once registered, you will be issued with the Certificate for Burial/Cremation also known as the green form which you will need to pass onto the Funeral Directors.  You will also be issued with the Death Certificate (we would advise that you should obtain at least 5 copies of the Death Certificate).

Sometimes there may be a post mortem or inquest where a death is reported to the Coroner and this usually happens where a death occurs suddenly.  This may delay the registration process but an Interim Death Certificate can be issued which is usually sufficient for probate purposes.

2.         Funeral arrangements

Once the death is registered, the funeral can be arranged.  The person arranging the funeral becomes personally liable for the funeral costs, although they have the first call on the deceased’s assets to be reimbursed the reasonable costs incurred.  What is reasonable to spend on a funeral has to be measured against the average cost of a funeral, the person’s station in life and the total value of the estate.  If the estate is small in value or there are likely to be potential disputes between the beneficiaries or where there are children or disabled charities that are due to inherit the Personal Representatives should be weary of arranging an expensive funeral as they may not be able to get subsequent consent to reimburse themselves the full costs.  The cost of any wake or headstone are not expenses to be paid from the estate without the consent of all beneficiaries but fall on the family members requesting them.  The funeral account can be paid direct from the deceased’s bank account prior to the obtaining of a Grant of Representation.

3.         The legal process of estate administration

Personal representative

The personal representatives (PR’s) are responsible for administering the estate of the deceased.  Where there is a Will, they are called Executors and where there is no Will i.e. intestacy they are called Administrators.

The PR’s have a duty to administer the estate in an efficient manner and thereafter distributing it in accordance with the Will or, if there is no Will, in accordance with the Rules of Intestacy.  The Rules of Intestacy direct that your estate will be passed onto close blood relatives in a strict statutory order and we can advise you separately in relation to this specific matter.

If you have been appointed a PR but do not wish to act it is perfectly possible to step down provided you have not “intermeddled” with the estate.  What this means is that if you have been involved in actually dealing with the estate it will not be possible for you to step down.  You can however renounce the role entirely i.e. give it up or “reserve your powers” which allows you to be a PR at a later date if you should so wish.  Again please contact us for further information and we can assist with drawing up the necessary documentation.

Immediate issues

The immediate issues a PR should consider are as follows:-

  • Locating the deceased’s Will (if any) and ascertaining any funeral wishes
  • Contacting the deceased’s Bank to find out are there any Standing Orders and Direct Debit payments 
  • Keeping safe any valuables
  • Securing any vehicle and notifying the insurers of the death
  • If there is a property involved notifying the insurers to ensure that insurance cover extends during the period of the administration of the estate
  • Obtaining Grant of Probate/Letters of Administration

The deceased’s assets are frozen on death and any estate over approximately £15,000.00 will require a Grant of Probate (where there is a Will) or a Grant of Letters of Administration (where there is no Will) in order to release the assets involved but if the estate is low in value the assets can be dealt without the need for a Grant of Representation as set out n the Administration of Estates (small payments) Act 1965.

The process involves notifying each asset holder of the death and ascertaining the value of the assets as at the date of death as well as notifying any creditors and finding out any amounts owing as of the date of death.  The PR’s also need to ascertain whether Inheritance Tax is payable, file an Inheritance Tax return form and then file the signed PAIP in order to obtain the Grant of Probate/Letters of Administration e.g. IHT 205 or IHT 400.  We can advise on the placing of the statutory notices under Section 27 of the Trustee Act 1925.

Inheritance Tax

Inheritance Tax is payable where an estate exceeds the nil rate band (for the current nil rate band please refer to HMRC website) subject to certain exemptions (including UK domicile spouses, charities, etc).  There are also reliefs from Inheritance Tax which include relief in some cases for Business Property Relief and Agricultural Property Relief on land and buildings and which now include the provision to carry forward a deceased spouse’s unused nil rate band i.e. the transferable nil rate band as the residence nil rate band (RNRB) which can be offset against the deceased’s residue property.

An Inheritance Tax account must now be filled in most circumstances even if there is no actual Inheritance Tax to pay.

4.         Next steps

Once the Grant of Probate/Letters of Administration has been granted, this gives the PR’s the authority to deal with the deceased’s assets.  They can then be released or transferred to the beneficiaries.  The PR’s should consider the wishes of the beneficiaries in this regard as well as having regard to the taxation issues.

The PR’s must also finalise the deceased’s Income Tax affairs with HMRC by filing a final tax return.

At this point, the PR’s will pay out any legacies under the Will and also consider making interim distributions to the beneficiaries of the estate.

Furthermore, the PR’s a duty bound to file tax returns for the administration period of the estate reporting any interest received, other income or capital gains in the sale of any asset.

Capital Gains TAX (CGT) may arise when the PR’s sell assets.  This may be the case if there is a property to sell as although a living person is exempt from CGT on the sale of their house during their lifetime, this does not apply to PR’s and any increase in the sale price compared with the probate valuation is potentially subject to CGT.  It is possible to minimise or even eliminate CGT in these circumstances and we would be pleased to advise you on these issues should the need arise.

At this stage the PR’s must finalise the Inheritance Tax affairs by reporting any corrections to the original account and applying for formal clearance by way of a clearance certificate.  Furthermore the PR’s may be able to claim a refund of Inheritance Tax if there has been any loss on sales of shares or properties compared to the original probate valuation but there are certain deadlines that must be complied with i.e. the assets have to be sold within certain time period.

The PR’s must also consider whether there are any possible Inheritance Act claims under the Inheritance (Provision for Family Dependents) Act 1975 or any other claims against the estate by way of proprietary estoppel.  Again we would be happy to advise you in this respect should the need arise.

Once the above issues have been dealt with the estate can be wound up and final distributions can be made to the beneficiaries.

5.         Conclusion

Estate administration is usually extremely time consuming and given that it is coupled with taxation issues, PR’s will usually instruct a solicitor to assist.  At Eaton-Evans and Morris we have years of experience in dealing with the process quickly, efficiently and cost effectively on your behalf and therefore can relieve the burden for you.

Although it is possible to obtain a Grant of Probate/Letters of Administration independently without a Solicitor it can be an extremely daunting procedure.  An Inheritance Tax account now has to be filed in almost every case, even if there is no Inheritance Tax to pay.  Furthermore the PR’s may need to attend a personal interview at the Probate Registry but if you instruct solicitors the personal interview will not be required.

As well as the estate administration we can also assist with the following associated issues:-

  • advising and assisting with any post death Deeds of Variation.  It is possible to vary the terms of someone’s Will/Rules of Intestacy within 2 years of the date of their death, provided that the affected beneficiaries are all adults and all agree.  This is useful to enable the beneficiaries to plan for tax, pass assets down through the generations or provide for those persons not included in the Will;
  • dealing with the setting up and administration of any Trusts contained in the Will or effected by a Deed of Variation;
  • placing funeral notices;
  • renouncing probate or reserving a PR’s power;
  • dealing with the sale of the property as we have a well established conveyancing department.