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Wills and Probate

Whatever stage you have reached in your life, we are here to help you through the big milestones.  We want to have a long-term relationship with you, supporting you every step of the way.

We pride ourselves on not only being excellent at the law but also being able to help our clients with clear, concise, practical  and    understandable    advice.
Our team of experienced specialists can advise you on making a Will or Probate and administering estates.

Wills
It is often thought that when someone dies their nearest and dearest will automatically inherit. This is not the case and that is why the importance of a will cannot be stressed enough.

We make each and every will so that it is as unique as you are. We take into account your personal financial circumstances, family commitments, inheritance tax and any other complications that may arise.

By making a will you will also have the peace of mind that your estate is administered with sympathy and efficiency as you can choose who is to have the power to deal with your personal affairs.

What we need to know 

We will cover the main issues in person with you at our offices. We will need to know if you already have a will, who you would like to handle your affairs, what assets and income you have, any special wishes you have and any medical issues you may have. We will then outline all of the options available to you and advise you as to the best option for you.

Solicitors Legal Costs
Seeing a solicitor is not as expensive as most people imagine. The first appointment with a new client may be free of charge and at this meeting we will set out for you the costs likely to be involved in the services which we provide.


Probate
After a death it is important to those who are left behind that the estate is administered with sympathy as well as with efficiency.

When someone close to you dies somebody has to deal with their “estate”. A person’s estate is considered to be made up of the money, property and any possessions they had at the time of their death. The process ‘Probate’ means collecting any money that they are owed, settling any debts due (including outstanding taxes) and dividing the estate amongst the respective beneficiaries.

This consists of establishing what the assets and liabilities of the estate are, obtaining a Grant of Probate (or Letters of Administration in the case of intestacy where there is no will) to authorise the executors or administrators to deal with the estate.

All assets (including property) in an estate will remain frozen, until the Probate Registry gives the authority (via a document know as a Grant of Representation) to the individual(s) nominated in your Will, the “Executor”.

If you have no Will, then it is up to the most appropriate member of the family member to act on behalf of the estate.

If there is a Will the estate will pass to the people named in the Will. If there is no Will certain rules known as the Rules of Intestacy will apply.

Whether you are an Executor or the next of kin, we can provide practical guidance to help you deal with the administration of someone’s estate. We can help you determine the size of an estate for Probate and Inheritance Tax purposes. We can prepare an application for the Grant of Representation on your behalf and lodge the required forms with the relevant organisations to collect monies due to the estate and settle any outstanding debts.

We can arrange the transfer or sale of any shares and work with our residential property team to handle the sale of any property or land owned by the deceased.


In order to access the current Inheritance Tax rates please follow the link to the HMRC website.

 We can deal with the whole transaction from start to finish. All you need to do is contact us. As with our other services we will provide you with full details of our costs at the outset.

Are you thinking about applying for a Grant of Probate yourself?  

Some executors decide to apply for probate themselves.  You should not undertake this task lightly, as some areas are complex and complications can arise, in particular: -

⦁            When non-solicitor executors contact banks, the banks may not respond, causing significant delay as the clients may not be aware of the correct details to request.
        
⦁            The Inland Revenue forms are complicated and, unless the correct details are inserted, the document can be rejected by the Probate Registry and at worst prompt an Inland Revenue enquiry.


⦁            If inheritance tax is due, the rules are complex and it may be that the inheritance tax is calculated incorrectly and possibly overpaid.

⦁            If there are delays in obtaining probate, additional inheritance tax charges may be due in the form of interest.


⦁            Executors acting personally without a solicitor are not
entitled to charge.  However, if a solicitor is instructed to administer the estate, the legal costs are an allowable deduction.
⦁    
⦁    
For further information, please contact M H Law Solicitors on 02070965056


⦁    Wills


⦁    Table of contents
 1.    Why it is important to make a will
 2.    Is it necessary to use a solicitor?
 3.    How much does a solicitor cost?
 4.    What should be included in a will
 5.    Who are executors
 6.    Requirements for a valid will
 7.    Where to keep a will
 8.    Looking for copies of a will after someone dies
 9.    Getting a copy of the will when probate has been granted
 10.    Change of circumstances
 11.    How to change a will?
 12.    Destroying a will
 13.    If a person who made a will commits suicide
 14.    Challenging a will
 15.    Probate

 1.    Why it is important to make a will

It is important for you to make a will whether or not you consider you have many possessions or much money. It is important to make a will because: -
⦁    if you die without a will, there are certain rules which dictate how the money, property or possessions should be allocated. This may not be the way that you would have wished your money and possessions to be distributed
⦁    unmarried partners and partners who have not registered a civil partnership cannot inherit from each other unless there is a will, so the death of one partner may create serious financial problems for the remaining partner
⦁    if you have children, you will need to make a will so that arrangements for the children can be made if either one or both parents die
⦁    it may be possible to reduce the amount of tax payable on the inheritance if advice is taken in advance and a will is made
⦁    if your circumstances have changed, it is important that you make a will to ensure that your money and possessions are distributed according to your wishes. For example, if you have separated and your ex-partner now lives with someone else, you may want to change your will. If you are married or enter into a registered civil partnership, this will make any previous will you have made invalid.

If you are in any doubt as to whether or not you should make a will, you should make a call to us 02070965056

For more information about what happens if someone dies without making a will in England and Wales, see Who can inherit if there is no will or call us we can assist you.

 2.    Is it necessary to use a solicitor?

There is no need for a will to be drawn up or witnessed by a solicitor. If you wish to make a will yourself, you can do so. However, you should only consider doing this if the will is going to be straightforward and you have an experience to draft the will and you know the requirement of the Valid Will.

It is usually advisable to use a solicitor or to have a solicitor check a will you have drawn up to make sure it will have the effect you want. This is because it is easy to make mistakes and, if there are errors in the will, this can cause problems after your death. Sorting out misunderstandings and disputes after your death may result in considerable legal costs, which will reduce the amount of money in the estate and it might be an invalid will.

You should remember that a solicitor will charge for their services in drawing up or checking a will. They should give you the best possible information about the cost of their services. They should give you this at the beginning of their work with you.

Some common mistakes in making a will are: -

⦁    not being aware of the formal requirements needed to make a will legally valid
⦁    failing to take account of all the money and property available
⦁    failing to take account of the possibility that a beneficiary may die before the person making the will
⦁    changing the will. If these alterations are not signed and witnessed, they are invalid
⦁    being unaware of the effect of marriage, a registered civil partnership, divorce or dissolution of a civil partnership on a will
⦁    being unaware of the rules which exist to enable dependents to claim from the estate if they believe they are not adequately provided for. These rules mean that the provisions in the will could be overturned.

 3.    When it is particularly advisable to use a solicitor
There are some circumstances when it is particularly advisable to use a solicitor. These are where: -
⦁    you share a property with someone who is not your husband, wife or civil partner
⦁    you wish to make provision for a dependent who is unable to care for themselves
⦁    there are several family members who may make a claim on the will, for example, a second wife or children from a first marriage
⦁    your permanent home is not in the United Kingdom
⦁    you are resident here but there is overseas property involved
⦁               and there is a business involved.
⦁    
⦁    4. How much does a solicitor cost?

The charges for drawing up a will vary between solicitors and also depend on the complexity of the will. Before making a decision on who to use, it is always advisable to check with a few local solicitors to find out how much they charge. 

It is also worth you giving some thought to what you want to say in the will before seeing a solicitor. This should help reduce the costs involved.


5.    What should be included in a will

To save time and reduce costs when going to a solicitor, you should give some thought to the major points which you want included in your will. You should consider such things as:-

a)    how much money and what property and possessions you have, for example, property, savings, occupational and personal pensions, insurance policies, bank and building society accounts, shares

b)    who you want to benefit from your will. You should make a list of all the people to whom you wish to leave money or possessions. These people are known as beneficiaries. You also need to consider whether you wish to leave any money to charity

c)    who should look after any children under 18

d)    who is going to sort out the estate and carry out your wishes as set out in the will. These people are known as the executors (see below).


6.    Who are executors

Executors are the people who will be responsible for carrying out your wishes and for sorting out the estate. They will have to collect together all the assets of the estate, deal with all the paperwork and pay all the debts, taxes, funeral and administration costs out of money in the estate. They will need to pay out the gifts and transfer any property to beneficiaries. The Executor of the will can apply for a grant of representation.

7.    Who to choose as executors

It is not necessary to appoint more than one executor although it is advisable to do so, for example, in case one of them dies. It is common to appoint two, but up to four executors can take on responsibility for administering the will after a death. The people most commonly appointed as executors are: -
⦁    relatives or friends
⦁    solicitors or accountants
⦁    banks
⦁    in England and Wales, the Public Trustee or in some cases the Official Solicitor if there is no one else willing and able to act.

It is important to choose executors with considerable care since their job involves a great deal of work and responsibility. You should always approach anyone you are thinking of appointing as an executor to see if they will agree to take on the responsibility. If someone is appointed who is not willing to be an executor, they have a right to refuse.

If an executor dies, any other surviving executor(s) can deal with the estate. If there are no surviving executors, legal advice should be sought.

⦁    For more information, please call us  02070965056

8.    Requirements for a valid will

In order for a will to be valid, it must be: -

⦁    made by a person who is 18 years old or over; and
⦁    made voluntarily and without pressure from any other person; and
⦁    made by a person who is of sound mind. This means the person must be fully aware of the nature of the document being written or signed and aware of the property and the identify of the people who may inherit; and
⦁    in writing; and
⦁    signed by the person making the will in the presence of two witnesses; and
⦁    signed by the two witnesses, in the presence of the person making the will, after it has been signed. A witness or the married partner of a witness cannot benefit from a will. If a witness is a beneficiary (or the married partner or civil partner of a beneficiary), the will is still valid but the beneficiary will not be able to inherit under the will.

Although it will be legally valid even if it is not dated, it is advisable to ensure that the will also includes the date on which it is signed.

As soon as the will is signed and witnessed, it is complete.
If someone makes a will but it is not legally valid, on their death their estate will be shared out under certain rules, not according to the wishes expressed in the will.

For more information about the rules if someone dies without leaving a valid will in England and Wales, see who can inherit if there is no will-the rules of intestacy.

9.    Wills of service personnel on active service

The requirements for a valid will are less stringent for service personnel on active service. Such wills are known as privileged wills.

If you need further help about privileged wills, you can contact us 0207 0965056 .

10.    Where to keep a will

Once a will has been made, it should be kept in a safe place and other documents should not be attached to it. There are a number of places where you can keep a will:-
⦁    at home
⦁    with a solicitor or accountant
⦁    at a bank
at the Principal Registry of the Family Division of the High Court, a District Registry or Probate Sub-Registry for safe keeping. If you wish to deposit a will in this way you should visit the District Registry or Probate Sub-Registry or write to: -

The Probate Department
The Principal Registry of the Family Division
First Avenue House
42-49 High Holborn
London WC1V 6NP
Tel: 020 7947 6000


11.    Looking for copies of a will after someone dies

Someone close to you may have died and you think they made a will but you can't find one in their home. Check to see if you can find a certificate of deposit, which will have been sent to them if they arranged for the will to be kept by the Principal Registry of the Family Division. Even if you can't find a certificate of deposit, you can still check with the Registry to see if they hold the will. If the person died in a care home or a hospital you could check to see if the will was left with them. You should also contact the person's solicitor, accountant or bank to see if they hold the will.

The person who has died, or their solicitor, may have registered their will with a commercial organisation such as Certainty (www.certainty.co.uk) and after the person's death, you can pay for a search of the wills registered on the company's database. You can also ask the company to contact solicitors in the area where the person lived to ask if they hold a will.

If you can't find a will, you will usually have to deal with the estate of the person who has died as if they died without leaving a will. For more information, see who can inherit if there is no will-the rules of intestacy.


12.    Getting a copy of the will when probate has been granted

When someone dies, the person who is dealing with their estate (for example, money and property) must usually get authorisation to do so from the Probate Service. If there is a will, this authorisation is called a grant of probate. When probate is granted, the will is kept by the Probate Service and any member of the public can get a copy.

13.    In England and Wales

If you want to search for the will of a person who died recently, you can apply to the Probate Service for a standing search to be made. They will check their records to see if a grant of probate has been made in the twelve months before your application, and they will continue to check for six months afterwards. If a grant has been made, they will send you a copy of the grant and a copy of the will, if any. A fee is payable. You can renew your search at the end of six months for a further fee. It may be advisable to wait two or three months after the death before you apply for a search.

You can find out how to apply for a standing search and how much it costs on the website of HM Courts and Tribunals Service at www.hmcourts-service.gov.uk .

If you want to do your own search, or if you want to search for the will of someone who died more than twelve months ago, you can do a general search. A general search by the Probate Registry will cover a four-year period and a fee is payable. If you go to the Probate Registry to do the search yourself, no charge is made, but you still have to pay to get a copy of the grant of probate and the will, if any.

You can find out how to apply for a general search and how much it costs on the website of HM Courts and Tribunals Service at www.hmcourts-service.gov.uk .

14.    Personal application
You can make a personal search free of charge by going to the Principal Registry of the Family Division (see under heading Where to keep a will). If you want to inspect or take a copy of the will, there is a fee of £5.


15.    Local application

In England and Wales, you can order a copy of a will or grant of probate at any District Probate Registry. You will need to give the full name of the person who died, the date probate was granted and the name of the registry office where it was issued. The fee is £5. To find a District Probate Registry, go to HM Courts Service website at: www.hmcourts-service.gov.uk .

16.    Change of circumstances

When a will has been made, it is important to keep it up to date to take account of changes in circumstances. It is advisable for you to reconsider the contents of a will regularly to make sure that it still reflects your wishes. The most common changes of circumstances which affect a will are: -

⦁    getting married, remarried or registering a civil partnership
⦁    getting divorced, dissolving a civil partnership or separating
⦁    the birth or adoption of children, if you wish to add these as beneficiaries in a will.

17.    How to change a will?

You may want to change your will because there has been a change of circumstances. You must not do this by amending the original will after it has been signed and witnessed. Any obvious alterations on the face of the will are assumed to have been made at a later date and so do not form part of the original legally valid will.

The only way you can change a will is by making: -

⦁    a codicil to the will; or
⦁    a new will.

18.    Codicils

A codicil is a supplement to a will which makes some alterations but leaves the rest of it intact. This might be done, for example, to increase a cash legacy, change an executor or guardian named in a will, or to add beneficiaries.

A codicil must be signed by the person who made the will and be witnessed in the same way. However, the witnesses do not have to be the same as for the original will.

There is no limit on how many codicils can be added to a will, but they are only suitable for very straightforward changes. If a complicated change is involved, it is usually advisable to make a new will.

19.    Making a will

If you wish to make major changes to a will, it is advisable to make a new one. The new will should begin with a clause stating that it revokes all previous wills and codicils. The old will should be destroyed. Revoking a will means that the will is no longer legally valid.

20.    Destroying a will

If you want to destroy a will, you must burn it, tear it up or otherwise destroy it with the clear intention that it is revoked. There is a risk that if a copy subsequently reappears (or bits of the will are reassembled), it might be thought that the destruction was accidental. You must destroy the will yourself or it must be destroyed in your presence. A simple instruction alone to an executor to destroy a will has no effect. If the will is destroyed accidentally, it is not revoked and can still be declared valid.

Although a will can be revoked by destruction, it is always advisable that a new will should contain a clause revoking all previous wills and codicils. Revoking a will means that the will is no longer legally valid.

21.    If a person who made a will commits suicide

If a person who made a will commits suicide, the will is still valid.

22.    Challenging a will

A person may want to challenge a will because: -

⦁    they believe that the will is invalid; or

⦁    they believe that they have not been adequately provided for in the will.


There are strict time limits for challenging a will and if you want to challenge a will, you should seek legal advice as soon as possible. If you want to challenge the will because you believe you haven't been adequately provided for, the time limit is six months from the grant of probate. 

23.    Probate

If you are named in someone else's will as an executor, you may have to apply for probate so that you can deal with their estate.


 

⦁    Probate

What is a Probate?

When someone dies, you will need to get the legal right to deal with their property, money and possessions (their ‘estate’). However, in England and Wales you may be able to apply for a Grant of Representation known as Probate.

You can apply yourself or use a solicitor or another person licensed to provide probate services.

If you are named in someone's will as an executor, you may have to apply for probate so that you can deal with their estate. This is a legal document which gives you the authority to share out the estate of the person who has died according to the instructions in the will. You do not always need probate to be able to deal with the estate.

If you have been named in a will as an executor, you don't have to act if you don't want to.

Letters of administration

In some circumstances, someone who wants to deal with the estate of someone who has died will have to apply for letters of administration, rather than probate. This person is called an administrator. You have to apply for letters of administration if:-
⦁    there is no will
⦁    a will is not valid
⦁    there are no executors named in the will
⦁    the executors cannot or are unwilling to act.

There are strict rules about who can be an administrator. If there is a valid will, you can apply for letters of administration if:

⦁    the person who died left all of their estate to you in the will, and
⦁    the executors are not named, or cannot or are unwilling to act.

If there is no valid will, and you are the next-of-kin, you can apply to be an administrator in the following order of priority:-

⦁    you are the married partner or civil partner of the person who has died
⦁    you are the child of the person who has died
⦁    you are the grandchild of the person who has died
⦁    you are the parent of the person who has died
⦁    you are the brother or sister of the person who has died
⦁    you are the nephew or niece of the person who has died
⦁    you are another relative of the person who has died.

An unmarried partner, or same-sex partner who has not registered a civil partnership and who has not been named in a will as an executor will not usually be able to act as an administrator.

Do you always need probate or letters of administration?

You usually need probate or letters of administration to deal with an estate if it includes property such as a flat or a house. Otherwise, you may not need probate or letters of administration if:

⦁    the estate is just made up of cash (that is, bank notes and coins) and personal possessions such as a car, furniture, and jewellery

⦁    all the property in the estate is owned as beneficial joint tenants This property automatically becomes wholly owned by the other owner


⦁    you had a joint bank account

⦁    the amount of money is small


⦁    you discover that the estate is insolvent, that is, there is not enough money in the estate to pay all the debts, taxes and expenses

⦁    there are certain life insurance policies and pension benefits in the estate.

⦁    Jointly-owned property

Couples may jointly own their home. There are two different ways of jointly owning a home. These are beneficial joint tenancies and tenancies in common.

If the partners were beneficial joint tenants at the time of the death, the surviving partner will automatically inherit the other partner's share of the property. There is no need for probate or letters of administration unless there are other assets that are not jointly owned. The property might have a mortgage.

However, if the partners are tenants in common, the surviving partner does not automatically inherit the other person's share. Probate or letters of administration will be needed so the personal representative can pass it whoever will inherit the share of the property, according to the will or the rules of intestacy. The property might have a mortgage.

Example: A and B are not married. They have one child from their relationship called C.  A and B own their home as tenants in common. A dies without leaving a will. B doesn't have the right to apply for letters of administration but C does. C inherits the half share of the home under the rules of intestacy. B keeps his half share.

For more information about the rules of intestacy, see Who can inherit if there is no will –the rules of intestacy.

If there is a mortgage on the property

 

If the property is to be inherited by someone and there is still an outstanding mortgage on it, the mortgage company will either require the mortgage to be paid immediately, or ask the person who inherits the property to take over the mortgage.

 

If there is a mortgage on the property, there might be a life insurance policy, an endowment policy, or mortgage protection policy which will pay the outstanding mortgage if the person with the mortgage dies. In this case, you should write to the company, asking for a final statement.

 

If the property is to be sold, the mortgage will be paid out of the sale of the property.

 

*               Joint bank accounts

 

Couples may also have joint bank or building society accounts. If one dies, all the money will go to the surviving partner without the need for probate or letters of administration. The bank may need the see the death certificate in order to transfer the money to the other joint owner.

 

Probate or letters of administration may still be needed if there are other assets that are not jointly owned.

 

 

 

*                 If the amount of money is small

 

The estate may be made up of a relatively small amount of money held:-

 

  • in a bank or building society account
  • in a pension fund
  • by an insurance company.

 

If, after the funeral expenses have been paid, the amount of money held by the organisation is under a certain amount, they might be prepared to release it to you without you having to apply for probate or letters of administration. This amount may vary from one organisation to another, so you will need to check with each one.

 

Some banks and building societies will release quite large amounts without the need for probate or letters of administration. Also some banks and building societies money will release money needed to pay for a funeral, probate fees and inheritance tax but nothing else until you have been granted probate or letters of administration.

This depends entirely on the policy of the organisation in question. They do not have to release anything, however small the amount of money. If the organisation refuses to release money without probate or letters of administration, you must apply for probate or letters of administration even if it is not otherwise needed.

 

 

Do you need a solicitor?

 

Many executors and administrators act without a solicitor. However, if the estate is complicated, it is best to get legal advice. You should always get legal advice if, for example: -

 

  • the terms of a will are not clear
  • part of the estate is to pass to children under the age of 18
  • the person who died has left money or property in a trust
  • the person who died owned land or property abroad
  • the person who died owned a business
  • anyone is likely to dispute the will.

 

The legal fees can be paid for from the estate.

If there are any problems with the way that executors or administrators deal with the estate, for example, if there is unreasonable delay or if the executors or administrators misuse their legal powers, you will need legal advice.

 

*  For legal advice,

*  Please Call us 02070965056

 

How long does it take to get probate or letters of administration?

 

The time it takes to get probate or letters of administration varies according to the circumstances. It may only take three to five weeks if there are no complications, inheritance tax is not payable, the estate is straightforward and all forms are filled in properly. However, in more complicated cases, it may take much longer.

 

How to apply for probate or letters of administration

 

To apply for probate or letters of administration, you need to fill in a number of forms. You always need to fill in form PA1. This form asks for details about the person who has died, their surviving relatives, the personal representative and some details about the will, if there is one.

 

You will also need to fill in other forms depending on what is in the estate and how much it is worth.

 

 

You can obtain the forms and further advice by telephoning the HMRC Probate and Inheritance Tax Helpline on 0300 123 1072. The Welsh language helpline is 0845 302 1489.

 

PA1 and other forms can be found on GOV.UK at www.gov.uk.

You will have to go for an interview at a probate registry when you have sent in the forms, so return the forms to the probate registry where you would like to go for the interview. With the forms, you also have to send: -

 

  • the original will (if there is one) and three copies
  • the death certificate
  • the inheritance tax forms
  • the probate fee.

 

Make sure you keep copies of the forms and anything else you have had to send with the forms.

 

The probate fee

 

The fee for applying for probate or letters of administration depends on the value of the estate. There is no fee where the value of the estate is less than £5,000. The fee for an estate valued at £5,000 or more is £215.

 

You can apply to pay a reduced fee, or no fee, if you are on a low income or face financial hardship. Apply on form EX160 which you can get from the website of Her Majesty's Courts and Tribunals Service. Go to www.hmcourts-service.gov.uk  .

 

 

Going to the interview at the probate registry

 

 

When they have looked at your forms, the probate registry will send you details of how to arrange an interview at the probate registry to swear the oath.

 

You need to take all relevant documents and letters with you, for example, bank books, share certificates and details of any debts of the person who has died. You also need to take identification with you, for example, your passport or driving licence.

 

The probate registry will have transferred all the details onto the official legal papers by the time of the interview. You should read these very carefully and check all the details. You are legally responsible for making sure the documents are correct and you have to confirm on oath that the details are accurate.

If it is inconvenient for you to go to a probate registry you may be able to confirm the oath at a local solicitor's office that also offers a 'commissioner for oaths' service. There will be a small charge for this. If you want to do this, you should write 'solicitor's office' in the box labelled 'interview venue' on the PA1 form. This option is not available in all cases.

 

Inheritance tax

 

Whether or not probate or letters of administration is needed, you have to inform HM Revenue and Customs (HMRC) of the death, in case inheritance tax is payable.

 

Inheritance tax may have to be paid if the estate is valued at more than £325,000. There are some exceptions to this rule, for example, if the husband, wife or civil partner inherits the estate.

 

If inheritance tax has to be paid, some of the tax must be paid before probate or letters of administration is granted. Once probate or letters of administration has been granted, the final tax bill will be sorted out.

 

 

After probate or letters of administration has been granted

 

After the interview, you will get a letter saying how much inheritance tax is still left to pay.

 

Once this has been paid, probate or letters of administration will be sent to you in the post. It includes details of the gross and net estate, that is, the value of the estate before and after debts have been deducted. A photocopy of the will, stamped to prove it is an official copy, is also sent. Both the probate/letters of administration and the will are public documents and can be examined by anyone who wants to see them.

 

Once you have got probate or letters of administration, you can begin to deal with the estate and share out the property.

 

If you are an executor and you do not wish to act

 

Even if you have been named as an executor in someone's will, you may not wish to, or be able to, act. You can appoint someone else to apply for probate on your behalf. To do this, fill in their details on form PA1. The other person will then be sent a form to sign.

 

Example: A's father died. In his will, he named his wife, B as his executor and left his estate to her. B is too frail to carry out the duties of executor so she appoints C to act on her behalf.

 

You may not want to appoint someone else to act for you. You can still refuse to act, as long as the person who made the will has died and you have not already started to deal with the estate. This is called renouncing.

 

To renounce, you fill in a form, called a form of renunciation. You can buy this form from a specialist legal stationers such as Oyez. You can order forms from their website at: www.oyezformslink.co.uk. You then file the form at a probate registry, together with the will.

 

This means that someone else could then apply for letters of administration.

 

 

 

 

 

Further assistance

 

The GOV.UK website has a useful checklist of what to do when someone dies. You can find this online at www.gov.uk.

 

HM Courts and Tribunals Service produces a useful guide for people who are applying for probate or letters of administration. It is called How to obtain probate - A guide for people acting without a solicitor. You can download the leaflet from their website at www.justice.gov.uk.

 

 

 

 

  • Intestacy
Table of contents

  1. What are the rules of intestacy?
  2. Married partners and civil partners
  3. Close relatives
  4. Who cannot inherit
  5. If there are no surviving relatives
  6. Rearranging the way, the estate is shared out
  7. Applying for financial help
  8. Rejecting your inheritance
 

  1. What are the rules of intestacy?
 

When a person dies without leaving a valid will, their property (the estate) must be shared out according to certain rules. These are called the rules of intestacy. A person who dies without leaving a will is called an intestate person.

 

Only married or civil partners and some other close relatives can inherit under the rules of intestacy.

If someone makes a will but it is not legally valid, the rules of intestacy decide how the estate will be shared out, not the wishes expressed in the will.

 

For more information about what is a valid will, please call us.

 

  1. Married partners and civil partners
 

Married partners or civil partners inherit under the rules of intestacy only if they are actually married or in a civil partnership at the time of death. So if you are divorced or if your civil partnership has been legally ended, you can’t inherit under the rules of intestacy.

 

Partners who separated informally can still inherit under the rules of intestacy. Cohabiting partners (sometimes wrongly called 'common-law' partners) who were neither married nor in a civil partnership can't inherit under the rules of intestacy.

 

If there are surviving children, grandchildren or great grandchildren of the person who died and the estate is valued at more than £250,000, the partner will inherit: -

 

*  all the personal property and belongings of the person who has died, and

*  the first £250,000 of the estate, and

*  half of the remaining estate.

 

For example:  A was in a civil partnership with B and they adopted a daughter called C. A died without leaving a will. Her estate is worth £350,000. After B inherits her share of £250,000, the estate that is left is worth £100,000. B can have half of this - £50,000.

 

If there are no surviving children, grandchildren or great-grandchildren, the partner will inherit: -

 

*           all the personal property and belongings of the person who has died and

*           the whole of the estate with interest from the date of death.

 

Jointly-owned property

 

Couples may jointly own their home. There are two different ways of jointly owning a home. These are beneficial joint tenancies and tenancies in common.

 

If the partners were beneficial joint tenants at the time of the death, when the first partner dies, the surviving partner will automatically inherit the other partner's share of the property. However, if the partners are tenants in common, the surviving partner does not automatically inherit the other person's share.

 

*  For more information about beneficial joint tenancies and tenancies in common, please call us, 0207 965056.

 

Couples may also have joint bank or building society accounts. If one dies, the other partner will automatically inherit the whole of the money.

 

Property and money that the surviving partner inherits does not count as part of the estate of the person who has died when it is being valued for the intestacy rules.

 

Example:-  A and B are married and own their flat jointly as beneficial joint tenants. They have a child called C. A dies intestate leaving the jointly-owned flat worth £350,000, and £60,000 in shares in his own name. The flat goes automatically to B. This leaves an estate of £60,000 which also goes to B, as it is worth less than £250,000. C inherits nothing.

 

If A had owned the flat in his name alone, his estate would have been worth £450,000. It would be shared out according to the rules of intestacy, that is, B would get the first £250,000. This leaves an estate of £150,000. B would get £75,000 and C would get the remaining £75,000.

 

  1. Close relatives Children
 

Children of the intestate person will inherit if there is no surviving married or civil partner. If there is a surviving partner, they will inherit only if the estate is worth more than a certain amount.

 

 

Children - if there is no surviving married or civil partner

 

If there is no surviving partner, the children of a person who has died without leaving a will inherit the whole estate. This applies however much the estate is worth. If there are two or more children, the estate will be divided equally between them.

 

Children - if there is a surviving partner

 

If there is a surviving partner, a child only inherits from the estate if the estate is valued at over £250,000. If there are two or more children, the children will inherit in equal shares:

 

*           one half of the value of the estate above £250,000.

All the children of the parent who has died intestate inherit equally from the estate. This also applies where a parent has children from different relationships.

 

For example: A and B were married and have two children, C and D. A and B get divorced. A then has a child, E, with his new partner F. Alan and F do not marry. A dies. B does not inherit under the intestacy rules because she is divorced from A and neither does F because she has not married A. C, D and E inherit all of A's estate in equal shares.

 

A child whose parents are not married or have not registered a civil partnership can inherit from the estate of a parent who dies intestate. These children can also inherit from grandparents or great-grandparents who have died intestate.

 

Adopted children (including step-children who have been adopted by their step-parent) have rights to inherit under the rules of intestacy. But otherwise you have to be a biological child to inherit.

 

Children do not receive their inheritance immediately. They receive it when they:

  • reach the age of 18, or
  • marry or form a civil partnership under this age.
Until then, trustees manage the inheritance on their behalf.

 

 

 

 

 

Grandchildren and great grandchildren

 

A grandchild or great grandchild cannot inherit from the estate of an intestate person unless either:

 

  • their parent or grandparent has died before the intestate person, or
  • their parent is alive when the intestate person dies but dies before reaching the age of 18 without having married or formed a civil partnership

 

In these circumstances, the grandchildren and great grandchildren will inherit equal shares of the share to which their parent or grandparent would have been entitled.

 

Example: A has two sons, B and C. C has one daughter, D. C dies when D is three years old. A dies intestate when she is 35. D inherits C's share of A's estate.

 

Other close relatives

 

Parents, brothers and sisters and nieces and nephews of the intestate person may inherit under the rules of intestacy. This will depend on a number of circumstances: -

 

  • whether there is a surviving married or civil partner
  • whether there are children, grandchildren or great grandchildren.
  • in the case of nephews and nieces, whether the parent directly related to the person who has died is also dead
  • the amount of the estate.

 

Other relatives may a right to inherit if the person who died intestate had no surviving married partner or civil partner, children, grandchildren, great grand-children, parents, brothers, sisters, nephews or nieces. The order of priority amongst other relatives is as follows: -

 

  • grandparents
  • uncles and aunts. A cousin can inherit instead if the uncle or aunt who would have inherited died before the intestate person
  • half-uncles and half-aunts. A half-cousin can inherit instead if the half-uncle or half-aunt who would have inherited died before the intestate person.
 

 

 

 

  1. Who cannot inherit
 

The following people have no right to inherit where someone dies without leaving a will:

  • unmarried partners (sometimes wrongly called 'common-law' partners)
  • lesbian or gay partners not in a civil partnership
  • relations by marriage
  • close friends
  • carers

 

However, even if you can't inherit under the rules of intestacy, you may be able to apply to court for financial provision from the estate.

 

 

  1. If there are no surviving relatives
 

If there are no surviving relatives who can inherit under the rules of intestacy, the estate passes to the Crown. This is known as bona vacantia. The Treasury Solicitor is then responsible for dealing with the estate. The Crown can make grants from the estate but does not have to agree to them.

 

If you are not a surviving relative, but you believe you have a good reason to apply for a grant, you will need legal advice.

For more information about bona vacantia go to the GOV.UK website at www.gov.uk.

 

*  For  legal advice, please call us

 

  1. Rearranging the way, the estate is shared out
 

It is possible to rearrange the way property is shared out when someone dies without leaving a will, provided this is done within two years of the death. This is called making a deed of family arrangement or variation. All the people who would inherit under the rules of intestacy must agree.

 

If they agree, the property can be shared out in a different way so that people who do not inherit under the intestacy rules can still get some of the estate. Or they could agree that the amount that people get is different to the amount they would get under the rules of intestacy.

 

If you think that the way the estate is shared out should be rearranged, you will need legal advice, please call us 02070965056

 

  1. Applying for financial help
 

You may be able to apply to court for reasonable financial help from the estate of the person who has died intestate. For example, if you were living with the person who has died but you were not married to them, you would not inherit under the rules of intestacy. However, you could apply to court for financial help. You must have lived with them for at least two years immediately before their death. Another example is if you were always treated by the person who died as a child of the family. You would not inherit under the rules of intestacy but you could apply to the court for financial help.

 

You must make the application within a certain time limit although in some circumstances this can be extended.

The court may order: -

 

  • regular payments from the estate
  • a lump sum payment from the estate
  • property to be transferred from the estate.

 

*  If you want to apply to the court for financial help, you will need legal advice,

 

8.Rejecting your inheritance

 

If you reject your inheritance, known as disclaiming it, there are special rules about who can inherit. You should seek advice about this.