Wills and Probate

1. Finding The Will

The Will states what a person wants to happen in the event of his or her death. It may contain instructions about money, property and possessions as well as funeral wishes. It is important to find the Will as soon as possible.

The Will should appoint an executor or executors to be responsible for paying debts and dealing with money, property and possessions. The executor will need to apply for probate from the Probate Registry or instruct qualified professionals e.g., a solicitor or Will writer who belongs to a recognised professional body such as the Institute of Professional will writers to do this for them. Probate is the official confirmation that the executor can deal with the estate of the deceased person.

If the Will does not name an executor, or if a Will cannot be found, then the next of kin will usually be responsible for dealing with matters. If this is the case, then you may need to take further advice from qualified professionals. If there is no will, please refer to The Estate section.

For more information about making a Will or dealing with someone else, please see our Making a Will and Funeral Planning Publication.

2. The Estate

When a person dies, they leave behind what they owned in their lifetime. This is his or her "estate". The estate needs to be passed on to those entitled to receive it after the payment of any debts, tax liabilities and other expenses. It is important to find out whether there is a Will and, if there is one, what it might say in relation to funeral arrangements and the appointment of executors. The Will may have been kept at home, with the bank or with the qualified professionals who drew it up. Any Will made prior to the date of a marriage or civil partnership is automatically revoked unless it has been made in anticipation of such a commitment.

If there is no Will, the deceased is said to have died intestate and special rules laid down by law will apply to the estate. If the person who died didn't leave a Will, but had money or property, an application for legal authority to administer the estate should be made to the Probate Registry or qualified professionals can help you obtain this. The Probate and Inheritance Tax Helpline can give you details of your local registry and also general advice on getting probate.

It is possible to administer an estate personally and the local probate office should be able to help. qualified professionals, however, have detailed knowledge of this area of the law and, if a specialist estate practitioner is used, will have more experience than anyone else of winding-up estates. There is likely to be plenty of correspondence and documentation to be sorted out with a potential need for valuations and perhaps calculations of tax.

Qualified professionals will know what should be done next and how to deal with any problems as they arise. Advice will also be given on the responsibilities of the personal representatives and, in the case of taxable estates; your qualified professionals will be able to consider how tax could be saved.

If there is a Will, the qualified professionals who drew it up is one of the most likely to be able to help and may well have been involved in the deceased's other legal affairs. Alternatively, one of the personal representatives may know a qualified professional who is experienced in the administration of estates. What is important is that the qualified professional instructed to deal with the administration of the estate is a specialist estate practitioner and regularly advises clients in relation to estates. Qualified professionals usually charge less for this sort of work than banks and an estimate of costs should be given at the outset. You can read more about dealing with a loved one's Will in our Making a Will and Funeral Planning publication.

3. House Clearance

House clearance can be very hard when a friend or relative has passed away. At such a difficult time, above all, you need a company you can trust and one that will provide a tactful and discreet service. It can be a very distressing time having suffered a recent bereavement to then have to deal with the house clearance arrangements. Having a company undertake the house clearance can help take away stress at this painful time.

4. Leaving a legacy to charity in your Will

You may decide to leave a legacy in your Will to charity.

Currently 7% of people in the UK leave a gift to charity in their Will. Charities rely on donations to support their work and for most charities they wouldn't be able to survive if it wasn't for help from donations. Across the UK, people donate roughly £3.9bn a year in their wills. Even a small amount can help make a big difference to charities.

After you have taken care of your loved ones and family members why not consider leaving a gift in your Will to your favourite charity. Leaving a gift to charities can reduce the amount of Inheritance Tax you pay. Any gift left to a qualifying charity (an organisation that is recognised as a charity for tax purpose with HMRC) will be except from Inheritance Tax, also the rate of inheritance tax can be reduced from 40% to 36% if you leave at least at 10% of your 'net estate' to charity.

You can even give money to charity whilst still alive as this won't be counted as part of the 'estate' when you die. As your Will is a legally binding document, and the subject of charitable legacies can be complex, it's sensible to seek professional help when making a legacy in your Will.

5. Rules of Intestacy

If you are a resident of England and Wales and die without having made a legally valid Will or a Will that has partially failed in some way, your estate becomes subject to the Rules of Intestacy. The Rules of Intestacy determine how your estate is to be distributed after the payment of all your debts and liabilities, testamentary expenses and funeral costs.

Please note: The issue (any child/children) of a predeceased member of a class (relation group) will inherit that share. Step relations have no entitlement unless legally adopted by the deceased. Property held as joint tenants passes to the other joint tenant, irrespective of the Rules of Intestacy. The Rules of Intestacy do not recognise 'unmarried partners' and therefore no provision is made for them.

6. Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is a legal document which allows you to choose one or more people to act and make decisions on your behalf if you do not have the mental capacity to make decisions. If you do not make and register an LPA then your children and anyone else looking after you would have to go through a lengthy procedure at the Court of Protection to get authority to act on your behalf.

You can choose whoever you like to be your attorney (the person who will make decisions on your behalf) It can be family members, friends or a professional.

There are two types of LPA. The first allows your Attorney to make decisions on your property and financial affairs. The other form of LPA allows your Attorney to make decisions on your health and welfare.

You will need to register your LPA with the Office of Public Guardian (this can take up to 20 weeks).

The Attorney's power to deal with your estate ends on your death.

7. Probate

When a person dies, it is necessary to administer the deceased's estate. If the deceased has made a Will and appointed Executors. (Executors are the people who must administer the estate). This includes ascertaining the value of all assets and liabilities of the deceased, preparing the Inheritance Tax form to be sent to HM Revenue and Customs, completing the application for the grant of probate, paying the correct amount of Inheritance Tax and probate fees and replying to any queries raised by the probate registry (part of the High Court) and HMRC. Once probate has been granted by the court, the Executor must then collect in all assets and pay of all debts and distribute the estate in accordance with the terms of the Will. If a person does not leave a Will, then the closest relatives in accordance with the rules of intestacy must obtain a grant of letters of administration.

The person or persons who do this are called the Administrators not Executors, However, they must act in the same way as Executors, dealing with all the matters which an Executor would deal with. However, the Administrators must deal with the Estate in accordance with the Rules of Intestacy.

If you do not wish to manage the Probate yourself, you can instruct a specialist Solicitor or a licensed Probate accountant to do this.

Specialist probate accountants, will deal with all aspects of Probate and Estate Administration such as:

• Research and asses the value of the deceased's Estate
• Prepare Inheritance Tax accounts
• Deal with Income and Capital Gains Tax liabilities of the Estate
• Gather assets and pay creditors
• Advise beneficiaries and executors of the tax implications connected with selling any assets
• Prepare tax returns for personal representatives
• Provide final Estate accounts

Accountants however, are not able to advise and assist on contentious matters where a family member/s dispute the Will. A Solicitor will need to be instructed in these circumstances.

8. Inheritance Tax

Inheritance Tax is a tax on the estate (the property, money and possessions) of someone who has died.

There may be inheritance tax to pay depending on the size of the estate. If the assets have been left to a surviving spouse or civil partner, there will be no immediate tax liability due to the spouse exemption. However, there may be tax to pay when the surviving spouse dies.

The standard IHT allowance known as the Nil Rate Band (NRB) for an individual is £325,000. If the value of the estate is below £325,000 there usually is no inheritance tax to pay.

In addition to the standard NRB allowance the Residence Nil-Rate Band (RNRB) was introduced in 2017 which applies when your estate contains a residential property that you have lived in and on death leave to your direct descendants. It gives each person an additional £175,000 to pass on tax-free. This means that an individual on death can pass on up to £500,000 tax free this tax year (2024/2025).

When one spouse or civil partner dies leaving their estate to their surviving spouse or civil partner no IHT is payable due to the spouse exemption. This means their NRB and RNRB are unused and can be transferred to the surviving spouse or civil partners estate. Effectively doubling the allowances available on second death. Even if part of the allowances is used on first death the unused portion is still transferable. This means that married couples or civil partners on second death can pass on up to £1million tax free this tax year (2024/2025).

Inheritance Tax is charged at 40% and is only charged on the estate above the available thresholds.

For further information regarding exempt gifts and transfers, please consult a solicitor. The following government website also lists current regulations regarding inheritance tax rules: www.gov.uk - check Money and Tax Benefits sections.

You may be able to vary the terms of the deceased’s Will or the intestacy rules to save Inheritance Tax by creating a Deed of Variation, but this must be done within a period of two years from the date of death. It is most important that you instruct a qualified professional to prepare this document.