Probate and Will, Trust & Estate Disputes

Publish date

28 February 2019

Probate: your questions answered

Our probate lawyers understand that dealing with matters following someone’s death can be a very difficult and emotional process. Whether you are an executor or a beneficiary of a will, or you are facing probate where someone has died without a will (intestate) or you wish to contest a will, we have prepared the answers to a series of frequently asked questions (FAQ’s) that we hope will help you.

We have also created a step by step Bereavement Guide, outlining some of the practical issues that need to be considered and a video to help clarify the legal and financial processes involved and how we can support you.

Probate video

Probate YouTube video

Frequently asked questions

I have just inherited from my aunt’s estate and would like to pass on my inheritance to my children. What is the best way for me to do this?

You could make a simple gift of your inheritance to your children. However, in order for the gift not to be considered part of your estate for inheritance tax purposes you will need to survive the gift by seven years.

A more tax efficient alternative is to make the gift using a deed of variation which will redirect the inheritance you received from your aunt to your children. The benefit of using a deed of variation is that the gift will be treated as having been made by your aunt rather than by you for certain purposes.

By using a deed of variation, the value of your inheritance will never be considered part of your estate for inheritance tax purposes so there is no need to survive the gift by seven years.

Additionally, there may be a capital gains tax advantage to using a deed of variation.

An important feature of deeds of variation is that they must be completed within two years of the death of your aunt and they should always be drawn up by a solicitor as they must include specific wording in order to obtain the relevant tax relief.

A deed of variation can be used to make an outright gift to your children or to establish a trust for their benefit.  Outright gifts are simpler, but trusts are useful in many scenarios as they can protect the gifted assets from divorce or bankruptcy and they can also prevent your children obtaining full control of the assets on reaching the age of eighteen.

Do I need to wait for probate before putting my late aunt’s property on the market?

A: In some cases, probate may not be needed in order to sell a deceased’s property. This depends on how the property was owned. For example, if the deceased owned the property jointly with someone else, the ownership would automatically pass to the surviving joint owner without the need to obtain a grant of probate. The rules differ if the deceased owned a share in a property with someone else, commonly known as tenants in common. However, for the purpose of this answer, I shall assume that the property was held in your late aunt’s sole name, she had a valid will which appointed executors and that you are one of the executors.

When you are dealing with a property that was owned in a deceased’ sole name, you would need to obtain a grant of probate before the property sale can be completed. This is because the grant proves the rights of the executors named in the deceased’s will. The executors can, however, obtain valuations and put the property on the market before the grant has been obtained.

My uncle left a house which I think has development potential. Do I need to obtain a formal probate valuation or can I rely on a market appraisal?

A: HM Revenue & Customs provide guidelines for the valuation of property for probate purposes. These state that personal representatives should make the fullest enquires which are reasonably practicable to complete and deliver the Inheritance Tax account. This includes the price the property might be expected to fetch if it was sold on the open market at the time of the date of death.

This valuation should take into account if there is any development potential (known as ‘Hope’ value) whether or not planning permission has been sought or granted.  We would, therefore, advise that if there is development potential that a formal probate valuation is carried out by a RICS surveyor in accordance with HM Revenue & Customs’ guidelines.

Our late father appointed a good friend, who lives abroad, as one of his executors. How easy will it be for him to be involved in the probate process?

A: This really depends on the executor, which country he resides in and his preference for communication. If he is on email then his involvement can be quite easy as communication will be straight forward and the documents for probate can be emailed to him. He can then approve these, print and sign and post them back. However, if email is not an option then it will depend on which country your father’s friend lives in and whether the postal system is reliable. Communicating can be done by telephone but time differences will need to be taken into account.

If other executors have also been appointed and the friend feels that communication and the transfer of documents will be too difficult, he may wish to have power reserved to him or renounce as an executor completely. If he is the only executor who has been appointed then he can appoint an attorney in the UK, who can apply for the grant and act in the administration of the estate on his behalf.

If there are ongoing trusts in the will of which your father’s friend is also a trustee, he may need to take advice and consider retiring as a trustee and appointing a new one in his place. This is because having trustees who live outside of the UK can have implications on the tax position of the trust.

My late father gave cash gifts to me and other members of our family. Do these gifts need to be disclosed for Inheritance Tax purposes?

A: It will depend on how long ago the gifts were made and how much the gifts amounted to. Gifts made in the seven years prior to your father’s death will need to be considered. It may also be necessary to go back 14 years if your father had created any trusts in his lifetime.

Your father is able to give up to £250 to any number of people in any tax year, provided the amount to each individual does not exceed that amount.  This is the small gift allowance.

However, if the gifts are in excess of £250 in any one year, then your father also has an allowance of £3,000 per tax year. The value of the gifts in excess of the small gifts allowance would need to be added together to calculate if they exceed this amount, in which case the excess value is brought back into account for Inheritance Tax.

There is also an exemption known as normal expenditure out of income which could apply depending on the value of the gifts, and your father’s income during those years.

How do I make a probate application?

The probate application may involve the completion of an Inheritance Tax account in the form of an IHT400 depending on the value of the estate. If the deceased died before 31 December 2021 and the estate was not subject to Inheritance Tax, it may be possible to complete a less complicated form, IHT205.  In addition, the executors sign a Statement of Truth confirming the gross and net value of the deceased’s estate as confirmed in the Inheritance Tax account. The Statement of Truth and the deceased’s will (if there is one) are then submitted to the Probate Registry along with the probate fee. The Probate Registry will issue the Grant of Representation in the names of the executors, which is the document that enables them to access the assets of the deceased’s estate.

My long term partner has died without making a will. Under the intestacy rules I will receive nothing from his estate. Am I eligible to bring a claim against his estate?

A: There is a piece of legislation in place called the Inheritance (Provision for Family and Dependants) Act 1975 for specific categories of applicants. You are eligible to bring a claim under this Act if, for a period of two years up to the date of your partner’s death, you were living in the same household as the husband/wife/civil partner of your partner. Alternatively, if you were not living together in this way then it may be possible for you to bring a claim against your partner’s estate as a financial dependant of his.

In the event of you falling into one of the categories of applicant and “reasonable financial provision” not being made for you (under a will or the intestacy rules) then the Act allows you to bring a claim for “such financial provision as it would be reasonable in all the circumstances of the case for you to receive for your maintenance”.
The court has a wide discretion when considering what is “reasonable for your maintenance”, and the Act sets out a number of matters to which it must have regard, including, but not limited to the following:

  • Your financial resources and financial needs
  • The financial needs of those people who will inherit under the intestacy rules
  • The size of the estate.

Claims brought under this Act generally settle before any court trial, usually through some form of alternative dispute resolution, such as mediation, arbitration or by way of negotiation. [include a link to the contentious trust pages that cover this?]

My father has a nil rate band discretionary trust in his will. Are there any reasons why the trust should be kept and not just brought to an end in favour of my mother?

A: These types of trusts were usually included in wills to ensure that on the first death the nil rate band was made use of and not wasted. Since the transferrable nil rate band was introduced it may not be necessary to keep the trust, as if the assets of your father’s estate all pass to your mother, her estate is likely to have the benefit of the transferrable nil rate band to make use of on her death.

These types of trusts were also created to give the person who died first some control over at least part of their estate. Therefore, this may still be relevant. There are other reasons why a nil rate band discretionary trust may also be useful to keep.  This could be because of the value of your parents’ combined estates would mean other valuable reliefs are lost and so keeping the trust after your father’s death may help reduce the value of your mother’s estate sufficiently to allow other reliefs on her death to be claimed.

The nature of the assets which could potentially pass into the trust is also a factor in deciding whether the trust should be kept. Are reliefs available on assets on your father’s death which could be captured by making use of the trust or are there assets which may increase significantly in value in the future?

It is important, before deciding to get rid of the trust, to take advice on your parents’ particular circumstances as the trust may still be of use.

My brother in law died living abroad but had assets in the UK. How do I deal with his UK estate?

A: When someone dies living abroad leaving assets both abroad and in England & Wales, it is usually necessary to obtain a grant recognised in England to deal with the English assets.

Generally, if a grant of representation is issued in a Commonwealth country, it is possible to have the foreign grant of probate ‘resealed’ by an English probate registry.  Once this is done, the person who holds the grant of representation in the Commonwealth country will then be able to deal with your brother in law’s English assets. If you want us to check whether a foreign grant is capable of being resealed, please do contact us. The resealed grant will normally be issued to the same personal representatives as named on the grant issued in the foreign jurisdiction (unless otherwise directed by the court/registrar).

If your brother in law did not live in a Commonwealth country, a full grant of representation in England & Wales is required and you will need to consider who is entitled to take out the grant which is decided by rule 30 of the Non-Contentious Probate Rules 1987. The entitlement is different if he was considered as domiciled in England but generally the first in line is the executor of a worldwide will.

When submitting either the reseal or the whole grant application, you will also need to file the necessary Inheritance Tax return,  depending on the assets held and your brother in law’s domicile history.

Please note that a deceased can live abroad but retain a UK domicile status for tax purposes, so it should not be assumed that they are non-UK domiciled, solely based on where they lived before they died.

My uncle’s estate is going to be liable to Inheritance Tax. How can I fund this and when does it need to be paid?

A: Inheritance Tax is payable on an estate six months from the end of the month of the death. However, on certain assets, it is possible for the Inheritance Tax due on that asset (typically land/buildings) to be paid in ten yearly instalments. The first instalment would be payable at six months and you will be charged interest on any outstanding Inheritance Tax liability after the six month deadline. Once the property on which the instalments are being paid is sold, you will need to settle the outstanding Inheritance Tax liability in full, together with the final interest.

My mother sold her house when she went into care, is residence relief available?

It will depend on how long ago your mother sold her house. If the house was sold on or after 8 July 2015, then your mother’s estate may still receive the benefit of the residence nil rate band, provided it satisfies the other conditions, such as the overall value of her estate.

How much will it cost to deal with the administration of my aunt’s estate and do I need to instruct a solicitor?

A: Invariably this is one of the first questions we get asked. To determine how much the cost is likely to be, we first of all assess with you the type of service you want and need.

We will take time to understand how much help you would like and the nature of the estate involved, including the complexity of the will, assets and liabilities of the estate.  We then calculate the amount of hours we believe your matter will take and provide you with a best estimate, both in terms of the work up until the probate stage and for the post grant work.

For further information see our Probate Process Infographic.

If it is unclear at the outset what will be involved, we will work on hourly rates until we can make a full assessment of the matter and then provide you with a cost estimate.

We offer three types of services:

  • A Grant – only service on a fixed fee basis
  • Executor support service where you choose which parts of the process you want to do yourself [link to the probate pages with the relevant fee scales?]
  • Full estate administration service.

Typical fees for full estate administration

Probate costs can be difficult to estimate and will depend on the complexity of the estate and time spent on each task. At the outset, we will provide our best estimate of our costs, which will be based on our hourly rates and from the information we have. If, at any point, we are asked to do additional work (for example additional assets come to light or HMRC opens an enquiry into the Inheritance Tax account) our costs will increase.

Typically, for example, for a non-taxable estate, if there is one beneficiary, no property and the estate includes 5 – 6 straightforward assets such as a bank account, National Savings, 2 small shareholdings, life policy and a few low value personal chattels, costs may range from between £10,000 to £15,000 plus VAT at 20%.

If there are multiple beneficiaries, a property and multiple bank accounts and investments and the estate is taxable, but otherwise straight forward, costs may range from between £25,000 – £35,000 plus VAT at 20%.

The ranges illustrated, in some cases, may be higher due to the nature of the assets to be dealt with or negotiations with HMRC, time delays caused by third parties or because of the relationship between family members. The ranges given do not allow for any tax planning, conveyancing work, disputes or collection of overseas assets requiring separate grants, nor estates requiring consideration of any trusts under a will. [I have taken this information from our probate page, as I don’t think we now use the % figures]For further information please see our main Probate web page.

People often ask if they need a solicitor for probate and the short answer is no. Executors are able to make personal applications for probate and for smaller and less complicated estates, this may be appropriate. We would advise that executors talk to us first though, so that we can explain the probate process in more detail, enabling them to make an informed decision.

We find that a bereavement is a difficult time for families and having a lawyer to guide and support them through the process, gives them peace of mind and takes away the added burden and stress of what can be a challenging time.

For general information on bereavement please see our Bereavement Guide.

My sisters are in dispute over the assets of our mother’s estate and no progress has been able to be made. What can I do to break this deadlock?

A: Assuming that you and your sisters are all appointed as executors of your mother’s estate, then you will need to act unanimously for most of the decisions dealing with the administration of the estate.  What you can do now depends on whether you have already applied for a grant of probate.  If not, and you no longer want to be involved in the administration of the estate and have not “intermeddled” in the estate (i.e. taken an active role in administering the estate), you can renounce, i.e. step down from your role as executor.

An alternative (again if you have not yet applied for a grant) is for power to be reserved to one/two of you and for the grant of probate, the legal document which confirms that the executor has the authority to deal with the deceased person’s assets and administer his/her estate, to be taken out in one of your names so that one person effectively takes the lead.

If neither of those are an option, then you can look to the court to impose directions as to a discrete issue in order to try and break the deadlock. However, if it is simply a case that the whole administration is going to be unworkable due to the dispute between your sisters, then it is possible to apply to the court to remove an executor. This is not a decision to be made lightly however and the court will require evidence that the proper administration of the estate has been jeopardised and hostility or ill feeling alone will not be sufficient.

Seeking directions from the court or the removal of an executor are extremely expensive processes. If the court is prepared to remove an executor, it may then appoint a new executor in his/her place, or simply terminate the appointment without making a replacement, provided that leaves one other executor in place.

My brother died leaving various digital assets – how do I deal with these?

A: This is now a very common way of holding assets and to be able to answer the question, we need to first understand what we mean by a “digital asset”. Simply explained, it is electronically stored content that is owned by an individual (or more precisely, any legal entity).

This is a broad description but commonly held digital assets include music, photographs, media, word files, cryptocurrency etc.

The first thing you need to do is to establish:

  • What digital assets your brother held
  • Where they are held
  • Whether the password(s) are accessible.

It is harder than one would imagine to convince Google and Apple to allow access to recover digital assets of someone who has died, as they rely heavily on privacy laws and what they consider the deceased would have wanted.

Is there a clause in your brother’s will (if he had one) that mentions his digital assets? If there is, then this will go a long way to convincing the company storing the digital assets to allow them to be released. If there is no such clause, then accessing and recovering the assets could become an issue, depending on what they are and where they are held. You may need to apply to court for the executors to be permitted access but careful consideration needs to be given to the value of the digital assets, as any application to the court would be costly.

The issues relating to privacy around cryptocurrency are not such a major concern, as it is fairly obvious that your brother would have wanted these assets to form part of his estate, as they have real financial value. The problem however is that cryptocurrency is protected by encryption and without the passwords to either the account itself, or the hardware on which they are stored, gaining access could prove impossible.

The two most common ways to store (hold) cryptocurrency are either online, in a secure wallet (known as hot storage) or offline, in a small electronic device such as a Trezor (known as cold storage).

If you have your brother’s passwords then you can arrange for any crypto to be sold for fiatcurrency, which will then be paid into the executors account or passed under the terms of your brother’s will, if he left instructions to do so. Be careful if selling though as the crypto industry is unregulated and unless you are experienced in this area, you can easily be defrauded. Contact a law firm that specialises in crypto and they will assist you with the sale.

However, if you do not know the passwords and there are no instructions in the will, which is quite often the case, this can be a problem. If they are held online, you would have to make contact with the owners of the website or exchange, that controlled his secure wallet. They may have a procedure for recovering passwords but if they do not, you may have to make an application to court to have them recovered, and even then, it will depend on the country where the assets are held. Unfortunately, there is a possibility that you may never be able to access or recover the crypto. Where currency is held offline, then it is unrecoverable unless you have the passwords.

The majority of people now hold digital assets, whether they are aware of it or not, and unfortunately, as legislation has not kept up to date with the way in which these assets are being stored, recovering them is becoming a major problem. There are steps you can take during your lifetime to make this much easier for your executors, and you can find more information here.

My grandmother died without a pre-paid funeral plan. Do I need to pay for her funeral up front, or can it be paid out of her estate?

A: Following a death, the deceased’s bank should be notified immediately and provided with a copy of the death certificate. The bank will then freeze any accounts held by the deceased. However, provided there are sufficient funds available in your grandmother’s account, the bank is permitted to release funds to settle her funeral costs on production of the undertakers account to them.

For general information on bereavement, please see our Bereavement Guide.

What is probate and how do I deal with it?

A: Probate is the legal and financial process of dealing with the estate of someone who has died – which broadly means clearing their debts and distributing their assets in accordance with their will or intestacy rules in the absence of a will. For more information please see the: probate process infographic.

Free initial telephone consultation

Our lawyers are experienced in all aspects of probate matters and are dedicated to helping minimise the stress of our clients at this difficult time.

If you would like one of us to discuss your needs and the options please complete this short probate questionnaire and we will contact you.

Alternatively, you can contact our probate lawyers on 01892 510000 (Tunbridge Wells) / 01322 623700 (Thames Gateway) or online using the ‘contact us’ form.

Heathervale House reception

Keep up to date with our newsletters and events