WILLS AND PROBATE UK
What is Will?
As per dictionary meaning, a will is a legal document in which a person specifies the method to be applied in the management and distribution of his estate after his death. It permits the person, the testator, to make decisions on how his estate will be managed and distributed after his death. Earlier, an instrument or document disposing of Personal Property was called a testament, whereas a will disposed of real property, however with time, the distinction has disappeared.
A will serves a variety of purposes such as:
- It enables the testator to select his heirs rather than allowing the state laws of descent and distribution to choose the heirs.
- It allows the a person to decide which individual could best serve as the executor of his estate, and
- It safeguards a person’s right to select an individual to serve as guardian to raise his young children in the event of his death.
- In case you have taken proper advice while making your will, you can reduce the amount of tax payable on the inheritance.
- In case you are an unmarried partner to the deceased or you have not registered a civil partnership, you cannot inherit from each other without a will in place.
Generally speaking, you can make your will as per your wish, with or without the help of a solicitor. You don’t need to or rather it is not mandatory to take help/involve a solicitor while making a will, however, if you seek advice of one, it will help you in prevent certain common mistakes in making a will, such as:
- We, at times are not aware of the formal requirements for making a will valid and legally acceptable.
- Failing to take into account of all the money and property available.
- In case you want to change the will, you need to get the alterations signed and witnessed.
- We don’t have thorough understanding of the effect of the marriage, a registered civil partnership, divorce or dissolution of a civil partnership on a will.
- What to do in case a beneficiary die before the will is made?
Although it is highly advisable to have a will ready before any exigency kicks in, but as per a recent study, almost 55% of the people do not have their wills ready and in this case, the estate and possessions of the deceased is called as intestate. In case there is no will, before you decided with the legal formalities, it is advisable to check with the deceased’s solicitor for the same, in case the deceased has left the will with him. Alternatively, you can look for a copy with a dedicated Will Storage service or with the Principal Registry of the Family Division by writing them at:
The Principal Registry of the Family Division
Record Keeper’s Department
First Avenue House
42-49 High Holborn
London, WC1V 6 NP
What are the Requirements of a Valid Will and Where to keep a Will?
In order for a will to be a valid will, it must be:
- The testator (person who is making the will) must be at least 18 years or above.
- Made voluntarily i.e. without any pressure from any other person.
- Made by someone who is mentally fit.
- In writing.
- Signed and witnessed by at least two witnesses.
- It should be dated. Although a will is valid even without the date mentioned on it but it is advisable to have date mentioned on it.
Once a will is made, it is advisable to keep it at a safe place, such as:
- At home
- With your solicitor or accountant
- At a bank
- At the Principal Registry of the Family Division of the High Court, in case you stay in England or Wales.
Who Should Be The Executors?
In literal terms, executors are those who are responsible to execute your will as per the terms and conditions mentioned in the will starting from the all the paperwork, debts, taxes, funeral arrangements and costs incurred, administration costs, transferring gifts and share of property to the beneficiaries. Although you can have only one executor for your will but it is advisable to have more than one executor. Executors for your will should be chosen with considerable care because this role requires and demands great deal of work and responsibility and they could be:
- Your relatives or friends
- Solicitors or accountants
- If in England and Wales, then the Public Trustee or the Official Solicitor in case there is no one to execute the will.
Once a will is made, executor is the legal personal representative of a deceased person’s estate but the appointment of the executor becomes effective only after the death of the testator. It is important to note here that the executor appointed by the deceased holds right to decline or renounce the position and in that case, the appropriate concerned body should be informed immediately.
What is a Probate and What Happens in a Probate?
Probate, is a process of improvement that proves a will of a deceased person is valid and it is accepted as a valid public document as the true last testament of the deceased.
In England & Wales, when someone dies, the term “probate” refers to the legal process whereby the deceased’s assets are collected together and, following various legal and fiscal steps and processes, eventually distributed to the beneficiaries of the estate. Technically the term “probate” has a particular legal meaning but it is generally used within the English legal profession as a term to cover all the procedures concerned with the administration of a deceased person’s estate. On the event of a death, in case you are the appointed executor of the will, you will have to obtain the grant of the probate, also called as grant of representation- known as probate. It also gives the executor the legal right to act on the will and execute it as per the terms and conditions of the testator.
In Case There Is No Will:
In case the person has died without declaring any will, also known as dying intestate, the legal formalities and distribution of estate and property in picture becomes more complicated than it is in the case there is a will in place and in this case, court has to issue a letter of representation, which will act as an official document, and will nominate the administers for the further process.
Officially appointed person by the court in the letter of administration will be called as administrator and he/she will be a close relative of the deceased, in case there is one and in case there is more than one person with same rights, the solicitor of the family will set the order of the priority.
Grant of representation, although a legal process, is not always required and it becomes mandatory in case the deceased has:
- Left cash more than £5000;
- Stocks or Shares;
- A House or Land;
- Insurance Policies
What to Do When You Apply For Grant Of Probate?
In case you are the legally appointed executor of the will, you have to carry out series of tasks while you apply for grant of probate, such as:
- Obtaining the death certificate.
- Establishing your authority as the executor of the estate.
- Estimating and valuing the worth of the deceased’s estate.
- To asses if the estate is liable for inheritance tax.
- Fill and return the completed probate application forms.
You can either fill the Probate Application Form by yourself or you can seek help from the Probate and Inheritance Tax Helpline in filling up the form.
- Send the filled application form to the probate registry.
- Attending a probate registry interview and swear an executor’s oath.
- Paying and taking care of inheritance, if due.
Once you have filled the Probate Application Form, you need to send the completed form at the address of your local probate registry with following documents:
- The Probate Application Form PA1
- The Inheritance Tax Form
- An original copy of the death certificate
- The original will and three copies of codicils (any additions or amendments to the original will)
- The application fees of £215 (in case the estate is of worth more than £5,000) in the form of a cheque payable to HM Courts and Tribunals Service.
On the receipt of your completed Probate Application Form, your local probate registry office will send you the oath and how to arrange for the appointment. You will swear the oath at either:
- The office of the commissioner for oaths, generally a solicitor.
- A local probate office.
After the swear of oath, you can expect your grant of representation letter within 10 working days and in case, probate service have any kind of reservation in issuing your grant, they will inform you the same in writing.
However, in case there is any issue or dispute over the grant of representation or probate, you can stop the issue of same. The process of stopping a grant of representation or probate is called as caveat, which lasts for 6 months. In case, you need to enter a caveat, you need to:
- Visit your local Probate Registry for the required paperwork.
- Fill in and submit the caveat form, Form PA8.
- Submit the full name, date of death and last address of the deceased.
- An address in England or Wales.
- Submit the fees for entering the caveat, which is £20.
Probate Application Form:
There are various types of Probate forms that are required to be filled during the process of Probate search including PA1, PA2, PA3, PA4, PA5,PA6, PA7, PA8 & PA97. Probate application form PA1 is the main form that has to be filled by the deceased person’s executors or administrators.
What is the Purpose of Grant of Representation/Probate?
Once the grant of representation/probate is issued, you need to send one copy to the organization who is in possession of the deceased assets and request them to transfer the same to your name for you to execute the will as per the terms and conditions of the will. So, once you get the probate, you need to take care of two major tasks, such as:
- Pay Bills/Debts: In case there are any pending/outstanding debts, you need to pay off any debts the deceases owed including outstanding bills and tax owed. As a legal representative of the will, you need to secure all the debts and bills before distributing the estate.
- Execute the will: Once all outstanding bills and debts are secured and paid off, you can distribute the estate as per
- The terms and conditions mentioned in the will.
- The terms and conditions mentioned in the letter of administration, in case there is no will.
How to Search For Probate Records?
In case, you are in England and Wales, you can search for a probate record either by online or post. However, you will be able to search for the probate for those who died in the year 1858 or after that by paying the required fees, which is £10. It will take approximately 10 working days for you to receive your documents.
However, in case you have to search for the probate by the post, you need to download and fill in the PA1S-Application For A Search (Copies of Grants and Wills) and send the filled form at the address mentioned on the form with the fees i.e. £10. Ideally, you should get the response within 4 weeks.
In case death was in last 6 months, you can apply for a 6 months “standing search” which implies that in case the grant of representation was issued in last 6 months, you will automatically get a copy of it, without submitting any forms.
How Long Does Probate Takes?
It is directly related to how complex the estate of the deceased is and in case there are complicated shares, estates, properties, insurances to take care of, probate might take longer time than it would have done in case of a simpler property and estate. However, generally speaking it takes between six to nine months or 80 working hours to complete, in case there is no contestation and the records of the assets are clear.
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