Administering an Estate

Administering an Estate

No one wants to think about death. Not their own death, nor especially that of a beloved family member or friend. We help our clients to prepare themselves both practically and mentally, and in some cases emotionally, for that inevitable moment. It can be a huge relief for some to know that their affairs are in order. For others, it is very trying and difficult making all the necessary decisions.

When a loved one sadly passes, there is a huge amount of work to be done. This, despite the fact that you are often barely functioning because of their loss. One of our team recently lost her mother and she is keen to share her practical thoughts and experiences with our readers. She found there is little straight-forward guidance available generally and of course most of us are administering an estate for the first time.

Make an Appointment with the local Registry Office

The initial hurdle to overcome is making an appointment to register the death at the deceased’s local Registry Office. (I am sorry – I’m going to refer to the person who has died as the ‘deceased’ for the purpose of clarity but I do recognise that no term is ideal.) You will need a ‘Medical Certificate of Cause of Death’ from the doctor in order to be able to do this. You will also be asked for various pieces of information and copies of documents but you will be advised exactly what is required.

‘Tell Us Once’ service

Do use their ‘Tell Us Once’ service as this undoubtedly saves you time and, more importantly, heartache. On your behalf, the Registry will contact HMRC (tax office), Passport Office, DWP (benefits), DVLA (driving licence) and the local council (possibly care fees). Again, various documents will be requested from you; do try to find them all. It may be that your loved one was due a tax rebate.

Arrange the Funeral and/or Memorial Service

The only other urgent task is to arrange the funeral. You may already know the deceased’s wishes or they may be detailed in their Will. (I hope they wrote one.) The deceased may hold a pre-paid funeral plan which may also detail their wishes but will certainly cover the basic costs. Opt for the earliest date you can for the funeral; you will not be able to move on until it has taken place. You may wish to think about placing an announcement in a local and/or national newspaper regarding the death and the date of the funeral. Once all this is done, you might want to take a breather as there is still much to be done, even if the estate is relatively simple. 

Gathering Finances

Once you can face it, you need to establish where the deceased held their ‘sole’ funds. (Joint funds will automatically pass to the other named account holder(s) according to the Laws of Survivorship.) This could include banks, building societies, Premium Bonds, financial advisors (ISAs/Bonds) etc. Register the death with each organisation and request a final valuation statement to be sent to you. (Do ask for a number of copies of the death certificate when you register the death. Whilst all organisations will return original copies to you, these certificates are like gold dust.) Do the same with all pension companies, including the DWP, if you didn’t use the ‘Tell Us Once’ service.

Your heart will be broken many times over the next few weeks as these organisations blandly respond to ‘The Late ________’ or the ‘Pers Reps (personal representatives) of _________’. It is shockingly impersonal. Do however retain all the documents received for your records. 

Probate?

You may need to go through Probate, you may not. Probate is the Latin word meaning ‘to prove’ so probate is the process of ‘proving’ the deceased’s death, who their personal representatives are, whether or not there is a Will, the assets etc. Each financial institution has its own rules and investment levels at which Probate needs to be done. Check with every financial institution where the deceased held ‘sole’ funds. Unfortunately, even if only one institution requires Probate, you will have to go through the process. Probate will also be required if the deceased held their property as Tenants in Common with a spouse or partner or individually. (You can check this via the Land Registry.)

Do go to the government website (https://www.gov.uk) and search under ‘Probate’. This site contains lots of really useful information, probably too much! From here, you can download all the necessary forms:

  • PA1 – complete by hand to apply for probate
  • PA2 – explains ‘How to obtain probate without using a solicitor’
  • PA3 – details probate fees (£215 at the time of writing)
  • PA4 – gives addresses of local Probate offices.

Tax forms for Inheritance Tax

You will also need to complete a tax form for inheritance tax purposes, even if there is nothing to pay. Complete form IHT205 if no tax is owing; complete IHT400 if inheritance tax is owing. If you struggle with either form, call one of the contact numbers or seek professional advice.

‘Swear an Oath’ at the Probate Office

Having sent off the necessary documents, you will need to arrange an appointment to ‘Swear an Oath’. Only one of the Executors needs to do this if you prefer.

Trusts

If there are any Trusts in the Will then these must be implemented within two years of the death. They cannot simply be ignored and need to be set up even if they are immediately closed again. A solicitor will be able to help you with this aspect of the estate administration but a fee will be payable for this service.

Distribute the Estate

Once you have all the final fund valuations, draw up an income and expenditure statement of the estate i.e. all the in and out payments. This should include any debts owed by the deceased. All debts must be settled prior to making any payments to beneficiaries. Circulate the income and expenditure statement as appropriate and distribute the estate.

Contact the Office of the Public Guardian

Lastly, (as if you haven’t already tackled enough bureaucracy), you should cancel any Enduring or Lasting Powers of Attorney held by the deceased. These are ‘lifetime’ documents and they cease to be of use once the Donor (the person who drew them up) has died. Send the original documents (there may be one for Finance and a separate one for Health) along with a copy of the death certificate and a covering letter to the Office of the Public Guardian to get them cancelled. They should not merely be destroyed.

Administering an estate is not pleasant but there is a certain satisfaction, and of course, relief, in seeing your loved one’s final wishes carried out as they wanted them to be. Alternatively, if it is a complicated Estate or you are lacking time, you could consult with an Estate Administration service.

The pandemic from our perspective!

The pandemic from our perspective!

As we approach 15 months of living through the Covid pandemic, I thought it timely to give you our experiences to date.

I think it is one of the positives, which I will always be proud of, during this time that we have survived and come out stronger.  None of the team were furloughed and no one lost their job.  More importantly, the team rallied stronger than ever.

Within a very short time, just before the first lockdown, we took the decision to work from home.  We all climbed the steep learning curve of remote working and changed our working practices rapidly.  This was no small feat as, unbeknown to most of our clients, producing a legal document from start to finish requires managing a myriad of processes full of minutiae.

I think the biggest surprise to me was how quickly myself and my team and my clients switched to using online video conferencing.  I had always been very averse to that medium as I believed that the personal relationship that I so enjoyed with my clients could never be fostered.  I was proved wrong.  We have, like many professional businesses that used to work face to face with their clients, now learned that we can almost exclusively work online with our clients.  This is both time- and cost-effective, both to the business and the environment.  I cannot see us or many businesses returning to the old ways.

The team went back into the safe and socially-distanced office almost a year ago.  That is what they requested.  The novelty of working from home wore off but again, we have learned that when they need to work from home, they can do it very effectively.  Everyone’s a winner, and everyone is safe.  However, we still cannot conduct client meetings at the office.

We have sadly taken the inevitable ‘phone calls from our clients who have been affected by Covid, either themselves or their family and friends. Some have been seriously poorly and some have died.  It is always hugely shocking and upsetting.  The reality of the constant news bulletins then ‘hit home’.

We have a very positive outlook for the next six months.  Yes, full opening up has just been put back by four weeks until July 19th, but the future looks good.  We have plenty to be excited about with the launch of the new brand Hamilton Legacy and all that it will bring.  Family Wills has been trading for almost 20 years and we look forward to the next 20 years as Hamilton Legacy.

Does having a Will mean I won’t need Probate?

Does having a Will mean I won’t need Probate?

Actually, the statement I hear is “I have a Will so I won’t need probate”.  Let’s clear this up now, THE TWO ARE NOT LINKED. Yes, they are both relevant to death but one does not negate the need for the other.

A Will is a legal document drawn up in your lifetime.  It enables you to specify the beneficiaries of your estate and how it is distributed.  Your estate may comprise of possessions, money, property and land.  A Will also enables you to state who you wish to administer your estate at your death i.e. your Executors.  Lastly, it also means you can control who are the guardians of your children under the age of 18.

If you don’t have a Will, at your death you are said to have died ‘intestate’.  For more information, see our intestacy blog.

However, PROBATE (from the Latin word meaning ‘to prove’) is the legal process that happens when you die.  The main purpose of Probate is to give a person (or people) the legal authority to administer your estate. These people are called Personal Representatives (PRs).

Probate enables the PRs to access your assets at your death, such as your bank accounts, property and pensions. It means they can do things such as:

  • Finalise utility bills
  • Sell or transfer property
  • Gather in assets, including pensions, stocks, shares and savings
  • Liquidate (sell) all the assets in your estate
  • Pay any outstanding debts using funds from the estate
  • Calculate and pay any income tax or inheritance tax due
  • Distribute the estate to beneficiaries (as set out either in your Will or via the Law of Intestacy).

I think the reason people often get confused regarding Probate is because Probate is not always required at death. There are two main reasons why Probate may not be required at your death:

  • You own all your assets JOINTLY usually with your partner or spouse who is still alive. In this case, at your death, all your assets would pass automatically to the other joint owner according to the Law of Survivorship; therefore no administration is required.  This is why I often hear “we didn’t need probate at my dad’s death so why do we need it now that my mum has died?”.  At the father’s death, all the assets were owned jointly between mum and dad so passed automatically at his death to the mother.
  • There is very little in your estate i.e. it’s a small estate. Financial institutions such as banks and building societies all have their own individual Probate threshold.  So if, at your death, you have a certain value of savings in a bank and that amount exceeds the bank’s Probate threshold, the bank will need a ‘grant of probate’. Without this, the bank won’t release those funds to your executors or PRs so they may be distributed to the beneficiaries.  To make life a little trickier for your PRs, every establishment has a different threshold.  So, the same amount may trigger the requirement for a ‘grant of probate’ at one bank but not at another!!  So, it could happen that if the value of your estate is held in several banks and the level of funds in each is under that bank’s threshold, no Probate will be required.

Importantly, do bear in mind that if a property is not owned jointly (i.e. as joint tenants) but it is owned as ‘tenants in common’ then a ‘grant of probate’ is ALWAYS required.  This is why a ‘grant of probate’ is often required at the second death of a couple – the property passed to the joint owner at first death but is now owned solely by the remaining spouse; at their subsequent death, a ‘grant of probate’ is required.

So, you see that a Will and Probate are totally separate concepts; the Will enables you to say how your estate is to pass at your death; Probate is the legal authority for your PRs to carry out the wishes in your Will.  It is not the Will that dictates whether Probate is required but instead what your estate is comprised of.

Do you really know what happens if you die without a Will?

Do you really know what happens if you die without a Will?

I think we all know that dying without a Will is not a good idea but do we really know why?  Most people think of the potential financial hardships but there are more emotional and emotive reasons also.

Let’s start with what happens if you die without a Will and who gets what.  Dying without a Will is called dying INTESTATE.  There are statutory laws – called the Law of Intestacy – that govern how your estate will pass if you die without a Will.

Remember that any assets owned jointly will NOT be governed by your Will or the Law of Intestacy.  Instead, those joint assets pass by the Law of Survivorship, i.e. the remaining joint owner(s) get the lot. So, if you and your partner/spouse own everything ‘jointly’, should you die, your partner/spouse gets everything. However, anything not owned jointly (i.e. any assets solely owned by you) will fall according to the Law of Intestacy.

So, now it depends on whether you are married or not?  If ‘yes’, then the next question is ‘do you have children’?  If ‘no’, then your spouse inherits the lot but don’t forget that is also the case if you are separated but not yet divorced.

However, if you do have children, it gets a little trickier. Your spouse will receive the first £270,000 of your estate.  So, if you do not solely own more than £270,000 your spouse receives your entire estate.  However, if your estate is in excess of £270,000 that excess balance will be split 50% to your spouse and 50% to your children (held in trust until they are aged 18).  Your personal chattels go to your spouse.

If you are not married, it gets even trickier.  If you have children, they receive your entire estate, NOT your partner – even if your partner is the parent of your children!  If you don’t have any children, your parents will receive your entire estate – these monies may end up going on their care fees.  If your parents are not alive, your estate falls to your siblings and of course down to their children (your nieces and nephews) should your siblings die before you.  Do you really want your nieces and nephews to inherit rather than your partner to whom you aren’t married?

If all that fails, the next level down is to your half-siblings, then grandparents and then aunts/uncles and of course their children should they die before you. If all that fails… then your estate passes to The Crown!!

So, you can see why the Law of Intestacy is often called a ‘blunt instrument’!

There are other aspects that are often not thought about.  If you haven’t got a Will then you haven’t nominated your own Executors and Trustees.  The former are the people to whom you give the responsibility of administering your estate and body.  The latter, often the same people, are those who manage monies and trusts on an ongoing basis. If you haven’t nominated your own Executors and Trustees then it will be down to those closest to you to act as your Administrator.

There are strict rules as to who can apply to be your Administrator. The order is as follows: the surviving spouse where the deceased was married or in a civil partnership; children of the deceased; grandchildren; surviving parents; surviving brothers or sisters; nephews or nieces; another relative.

Let’s take a look at that list.  What if you don’t like or trust or get on with any of those people?  They are now in charge of disposing of your body, organising your funeral, distributing your money, liaising with the family and the ongoing management of money and trusts.  Are there any people on this list within your family who you would not like to act in such a way on your behalf?

What about all the aspects of your life that won’t be reflected in the Law of Intestacy?: gifts to family and friends; gifts to stepchildren; care of pets; gifts to charity; guardianship of children; ongoing management of your business; excluding estranged beneficiaries; tax planning… to name but a few.

Heartache, family disputes and financial hardships may all occur at what is already a very difficult time.  Do you want that for your loved ones?  No, of course you don’t, so go to the effort and expense of having a well-crafted Will to make sure your wishes are adhered to.

Why some choose not to write a Will

Why some choose not to write a Will

So many people find it hard to get around to writing a Will (only 45% of adults have a Will). That inertia may be for any or all of the following reasons or you may have some reasons of your own:

  • You think it will be too expensive
  • You haven’t the time
  • You don’t want to take time off work to do it
  • You can’t decide or agree together on what happens to your estate or children
  • You don’t want to think about it as it is too difficult or morbid
  • You think “it” will never happen to you at your age and you can do a Will later
  • You think you will be “tempting fate” if you make a Will
  • You don’t know who to choose to write the Will as you aren’t sure you can trust anyone
  • You think the family will “get everything anyway”
  • You think you haven’t got anything to leave so you don’t need a Will.

So, if you are to stand a chance of getting around to “it”, here are some pointers to help you make “it” happen:

  • Choose an environment that makes discussing such personal and delicate issues as easy and comfortable as possible. Most people prefer to be at home as it is their ‘space’ and they have all their documentation to hand. However, some people prefer the formality of an office. Many professionals only offered online appointments during the pandemic, so if you are not familiar with this method, you may need to involve a technology-savvy friend or family member to help. Choose a time that suits you which may be in the evening if you work during the day.
  • Choose a provider that doesn’t charge for their appointments by the hour. To take proper and thorough Will instructions takes time and sensitivity. You don’t need to be worrying about how much it is costing you. The provider should furnish you with a quote once what you want and need has been established. It should then be up to you whether or not you proceed. . The first appointment should always be used as a fact-gathering exercise for you and your circumstances.
  • Your advice should be bespoke to your circumstances because one size doesn’t fit all. Therefore, your provider, Will-writer or solicitor should know what they are talking about. Just because the company has a glossy brochure doesn’t make it an expert. Just because they are a solicitor doesn’t mean they write many Wills. Think of your GP – they know about many aspects of medicine but they aren’t like a consultant who is an expert in their field. Whoever you choose, make sure they hold the appropriate qualifications.
  • You should like and trust your provider as you will be talking about really difficult issues and personal information. Your provider should be empathetic and patient. They should be experienced in helping you make decisions on difficult topics, often topics that provoke heated discussion between you and your partner or topics on which you don’t agree or can’t decide. Such situations should be very normal for the provider as it will be a regular occurrence for them; after all, families are families and people are people!
  • It is very rare that people DON’T need a Will. “Having nothing” is not usually true and you are just storing up potential problems for your family.
  • Not having a Will at your death means your estate will fall according to the Law of Intestacy. This is a very blunt instrument and often leads to issues in our modern world. It is often quoted to me that “my parents didn’t have a Will and everything was fine”. That was then but now people lead more complex lives than ever before. Less people get married or marry several times, many people have children from several marriages or relationships and people definitely own more assets than they used to.
  • Even if the Law of Intestacy endeavours to make sure the beneficiaries are who you would choose them to be (although this will not be the case in every instance), it may mean that the person in charge of your estate and your body isn’t the person you would choose it to be. This can be very distressing and contentious for those who you would normally have chosen.
  • And finally… regarding superstition. Putting a Will in place has as much effect on whether you get run over by a bus as not having a Will!! But at least it is less problematic for those you leave behind!!

So, with all this considered, do the right thing, give yourself and your family the peace of mind and consideration they deserve and GET ON WITH IT!!!

Protecting your Will and other vital documents

Protecting your Will and other vital documents

As important as writing your Will is, it is equally important to keep it safe and in a location that is easily found when the time comes for it to be needed. As such, we are adamant that our clients must be sure their documents are stored in a secure safe to protect against fire, water, theft, loss and tampering. If the Will is lost or damaged at the time of death, your thoughtful estate planning will be disregarded, even if your chosen executors knew your wishes.

Family Wills provides a will storage service to ensure that your executors are able to action your wishes. We will also store your original Lasting Power of Attorney (LPA) documents as part of this service. We have decided to provide this service as a direct result of one of our client’s experiences.

Our client was offered Will storage but he was happy he had a “safe place for his documents”.  He even took the precaution of giving his executors an unsigned copy of his Will and Family Wills’ contact details.  When they called us for the signed Will, we had to let them know that our client had chosen to keep the original document himself and that it should be among his possessions – it wasn’t; they found everything but the Will. Ultimately the Will was ruled to be presumed revoked by destruction.

This meant that our client had now died intestate and through that law, in his case, this meant that his parents now inherited his estate.  It therefore fell to our client’s parents either to distribute the estate according to his wishes through a Deed of Variation, both timely and expensive, or to allow all the assets to default to them. In the end, the parents got their letters of administration and all his assets. The people our client wanted to benefit got nothing.

Nobody will ever know what happened to the Will. Maybe our client intended to revoke his Will. What we do know is that if we had held the Will in storage for him then his wishes would have been carried out.

If you choose to forego a specialty storage facility for your Will, be sure to store your documents as advised and be sure to let your executors know where to find your Will and how to access it.