Frequently Asked Questions in Probate

04 February 2019

Probate is a complex legal process, and a lot of questions can arise during the administration of an Estate. To make things simpler, we have answered five of the most common Probate questions that our Probate team gets asked.

These are:

  1. Do I Need Probate if the Deceased Left a Will?
  2. I Don't Want to Administer the Estate – Do I Have To?
  3. What Happens if We Can't Agree on Who Should Apply for Probate?
  4. Is There a Deadline for Administering the Estate?
  5. I Can't Find the Will – What Should I Do?

1. Do I Need Probate if the Deceased Left a Will?

Whether or not Probate is needed depends on the size of the Estate, who is inheriting this and how the assets were owned. This applies regardless of whether or not the deceased left a Will, and the presence or absence of a Will actually has no bearing on whether Probate will be needed.

This means that Probate certainly could be needed on Estates where the deceased left no Will, and in other circumstances Probate may not be needed on Estates where a Will was left.

For more information on this, see Is Probate Required if There Is a Will?

2. I Don't Want to Administer the Estate – Do I Have To?

If the deceased left a Will then this will name one or more Executors who will be the people responsible for the Estate administration. If the deceased didn't leave a Will, then the Rules of Intestacy will determine who is entitled to act as the Administrator of the Estate. The duties of the Executor and Administrator are largely the same.

If you are the Executor or Administrator of the Estate but you don't want to act, then this is how it works:

Stepping down as Executor

An Executor can choose to step down (or 'renounce') from this role, providing they have not applied for the Grant of Probate or intermeddled in the Estate in any way. To renounce they will need to sign a Deed of Renunciation, in which they give up their role and responsibilities on a permanent basis.

Alternatively, if an appointed Executor does not want to act initially but wants to retain the right to act at a later date they can have 'power reserved' to them by other acting Executors. The other Executors must serve a Notice of Power Reserved on the Executor who does not wish to act. If the 'power reserved' Executor wishes to act at a later stage then they may do so by making an application to the Probate Registry.

Stepping down as Administrator

If an Administrator of an Estate does not want to act, then they can simply choose not to. There will usually be multiple Administrators under the Rules of Intestacy, placed in order of priority. If the person at the top of this list chooses not to act, then it will go to the next person. If there are more than one person at the same level (for example, the children of the deceased) any one of these can choose to apply for Probate on a 'first come, first served' basis.

For more information, see Can a Personal Representative Step Down?

Appointing a Probate Professional

If the Executor or Administrator of an Estate doesn't want to carry out the work involved in Estate Administration, they can choose to instruct a Probate Specialist, such as Co-op Legal Services, to carry out this work on their behalf.

With our Probate Complete Service we take full responsibility for getting Grant of Probate and dealing with the Legal, Tax (excluding VAT), Property and Estate Administration affairs.

3. What Happens if We Can't Agree on Who Should Apply for Probate?

If there is no Will then, as mentioned above, the Rules of Intestacy set out who is entitled to act as Administrator. If there is more than one person entitled to carry out this role, they can choose to act jointly. If they do not want to act jointly and cannot agree on who should take on the role then they should each obtain independent legal advice.

If there are multiple Executors appointed in a Will who both want to act, they will have to act jointly. If a conflict or dispute arises between them they will each need to seek independent legal advice. As explained above, Executors can choose to renounce if they do not want to act or have 'power reserved' to them if they want to retain the right to act at a later stage.

If a professional Probate Specialist has been instructed to administer the Estate on behalf of the Executor(s) or Administrator(s), then they will need to remain impartial on any conflict and act in the best interests of the Estate and of the Beneficiaries.

4. Is There a Deadline for Administering the Estate?

Every Estate is different and there is no strict deadline within which the administration of the Estate needs to be completed, but there are deadlines for paying Inheritance Tax that's due. If Inheritance Tax is due then a large portion of this will need to be paid by the end of the sixth month after the death. If this deadline is missed then HMRC can charge interest on any tax outstanding.

There is also a general expectation that the Executor or Administrator will do everything in their power to complete the Estate administration within a year of the death. This is referred to as "The Executor's Year." Inevitably, there are often factors which can delay this process, such as a lengthy property sale or missing Beneficiaries. However, if any legacies payable under the deceased's Will are not paid within a year of death then interest will be paid on the legacy sum.

During the administration, there is an expectation on the Executor or Administrator to be able to demonstrate that they have done everything they can to move things forward.

5. I Can't Find the Will – What Should I Do?

If you cannot find the deceased person's Will, then this can complicate the Probate process, as the original Will needs to be sent to the Probate Registry along with the application for the Grant of Probate.

Places that you should look include the at the deceased's home (particularly amongst any paperwork they had), at a Solicitors' firm that you think could have drafted the Will, at the deceased's bank and at the London Principle Probate Registry. It's also possible to carry out an online Will search.

If the original Will can't be found but a copy has been located then, in some circumstances, it may be possible to submit this copy to be 'proved' by the Probate Registry. The Executor will need to detail the circumstances around the loss of the original Will and the attempts that have been made to find it, as well as detailing who would benefit from the Estate if the Will can't be proved.

If the Will (or a copy) simply cannot be located then the Estate will need to be distributed as though there was no Will, meaning it will be distributed in line with the Rules of Intestacy.

For more information, see How Do I Find out if there's a Will during Probate?

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