DEATH OF YOUR SPOUSE OR PARTNER – DEALING WITH PROBATE
It’s never easy when we lose someone we love. It can be a devastatingly emotional time and this can make it hard to deal with the necessary practical steps that need to be taken. One of the hardest things is to register the death – which has to be done within 5 days whilst you are most likely to be still coming to terms with your loss.
Through this haze of grief, you will also need to deal with the practical tasks of informing family and friends and arranging the funeral – the service, music, flowers, wake and so on.
You’ll also need to deal with mundane but necessary tasks such as contacting various organisations such as banks, your mortgage lender, pension provider, the tax office, the Passport Agency and any other official institutions that will need to know about the death.
In this difficult time, thoughts will also need to turn to sorting out the deceased’s personal and financial affairs and dealing with Probate. It’s not a stretch to say, then, that it makes sense to give genuine thought to making it easier for your loved ones to be able to do this. No-one can take away the pain of loss and grief, but you can do your best not to leave a mess to contend with.
The way to achieve this is to ensure that you have planned ahead and put a Will and/or estate planning in place so that the Probate process is as smooth as it can be.
Probate is the general term used to describe the process of sorting out a person’s affairs when they die, and by leaving a Will, you are making it much easier for your loved ones. Probate is needed before the Executor named in the Will can claim, transfer, sell or distribute any assets.
When is Probate necessary?
Probate is needed for most deceased person’s estates and always in the following circumstances:
- If the deceased person’s estate is worth over £5,000.
- If there is a house or land in the estate.
- If there are stocks or shares.
- If there are certain insurance policies.
Many people find the idea of conducting Probate themselves very daunting and will instruct a professional to act on their behalf. Others will feel that they can do it themselves. Either way, it is a process which takes time – how much will depend on how complex the estate is. The average time taken for the Probate process in the UK is between 6 to 9 months to complete, although complications can cause this timescale to take considerably longer. For instance, if the Will is contested, or if the deceased’s affairs were unclear or in disorder, it will take longer.
The pitfalls of dying intestate are well known, so we’ll concentrate on what you’ll need to consider when drawing up your Estate Plan and deciding on who is going to carry out the Probate process on your estate.
The Executor (or Executors) that you appoint in your Will are the people you trust to deal with your estate after your death. They will have responsibilities (and liabilities) in relation to your estate, and they will deal with the administration and distribution of your assets in accordance with the wishes set out in your Will.
Broken down into simplified steps, Executors are responsible for:
- Finding out where your last Will and Testament is kept.
- Collating information about all of your assets and informing all banks and other financial institutions of your death.
- Obtaining professional valuations of all assets held by you at the date of death.
- Obtaining accurate values of all your debts and liabilities.
- Fully and accurately completing an Inheritance Tax return to HMRC and paying any tax due.
- Applying for Grant of Probate and filing all relevant supporting documents.
Once your Executors have Grant of Probate, they must:
- Collect in all of your assets.
- Pay any debts and liabilities.
- Transfer any specific assets to beneficiaries as per your Will.
- Pay out any specific legacies.
- Distribute the residue of your estate to the beneficiaries.
- Prepare full estate accounts for the beneficiaries.
Finally, once this process has been completed, the estate is deemed to be fully distributed and wound up.
As the above demonstrates, the process can be involved, lengthy and, at times, overwhelming. When you are choosing your Executors it’s important to bear in mind how they will cope with the duties and responsibilities that they will be carrying out.
It is worth noting that Executors have a personal liability for any loss to the estate which results from a breach of their duty. For instance, if they fail to pay a person entitled under a Will or intestacy, or if they fail to protect the estate’s assets, they could be personally liable. Whilst it may be tempting to appoint your spouse, partner or a family member as your Executors, it may be a heavy burden for them at a time when they are dealing with grief and all the other emotions that come with loss.
Whether you decide to appoint a professional Executor, or a lay one such as your spouse or friends or family, choosing the right person is crucial to dealing with your affairs in the most efficient and least painful manner. Our expert advisers can help you to decide what’s going to work best for you.
Case Study – distribution of an estate after taking professional advice
Eileen was a widower aged 82 and died leaving a Will that provided for her daughter and various other family members to received fixed sum legacies.
When the beneficiaries read the Will, they realised that one family member had been left out. All of them felt that they wanted this person to have a share of the estate, but if this person was included as a beneficiary, there was a problem. There would not be enough money in the estate to satisfy everyone’s entitlement under the fixed legacies in full.
Eileen’s daughter asked for advice on how to go about including the other family member as a beneficiary and she was advised that this could be done through a Deed of Variation.
By seeking professional advice, the beneficiaries were able to successfully vary the legacies under the Will and tie up Probate quickly and efficiently.
At LPA Guardian, we have experts in Probate who can find the right solutions and recommend a way forward for effective Probate, whatever the circumstances, so please contact us to see how we can help you.
As with a lot of estate planning generally, it’s better to talk sooner rather than later and our expert advisers can explore the best way forward.