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 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.

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.

3. Inheritance Tax

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

Since October 2007 married couples and civil partners have a joint Inheritance Tax allowance (for 2024/2025 £650,000). This means that rather than having an individual allowance of £325,000 which only they can use, couples can use between them the £650,000 subject to certain conditions.

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/browse/tax/inheritance-tax

You can vary the terms of the deceased's Will or the intestacy rules to save Inheritance Tax by creating a discretionary trust, but this must be done within a period of two years from when the first spouse or surviving civil partner dies. It is most important that you instruct a solicitor to prepare this document.