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Probate

What is probate?

Literally probate means proof that a will is the valid last will of a person who has died. A grant of probate is the document confirming that proof. Where there is no will the equivalent is a grant of letters of administration.

Either document confirms to those who need to know (e.g. banks and building societies holding money for the deceased, other asset holders, the HM Revenue and Customs, etc.) that the personal representatives are the correct people to deal with the deceased’s assets.

Who are personal representatives?

They are either:

the people named by the deceased in his will to act as his executors and administer the estate, or,
if there is no will, the next of kin according to the intestacy laws, who are entitled to apply to administer the estate, known as the administrators.

What is the probate process?

The deceased’s personal representatives must:

find out the value of the deceased’s assets and liabilities, whether they made any substantial gifts within the last seven (or sometimes 14) years, whether the deceased had any interest in any trust, and other information potentially required by HM Revenue and Customs.
complete various forms and promise by swearing an oath that they will administer the estate according to the law.
preserve and encash as necessary the assets of the deceased, pay from the assets in the estate any inheritance tax, the funeral expenses, and any debts the deceased may have left unpaid,
when it is safe to do so after having taken account of any potential creditors or third party claims, pay any legacies left in the will and distribute the balance to the beneficiaries named in the will.

Where personal representatives have instructed Borneos to help with the probate process, we will take care of all the paperwork.

How long does it all take?

The process of administering and winding up an estate can be completed quite quickly if the will is clear, if there are not many assets, and the whereabouts of all the beneficiaries are known.

It can take much longer however if beneficiaries cannot be traced or if a house is difficult to sell, if there are tax issues to resolve with the Inland Revenue, or if there are disputes between beneficiaries.

Can personal representatives resign?

No. A personal representative can choose not to start acting as one, but once they have started to administer an estate they cannot resign. In cases of ill health an application could be made to court for a change of personal representative.

Duties of a personal representative

Personal representatives may have control over large sums of other people’s money and there are as a result several relevant Acts of Parliament and many other legal requirements setting out their rights, duties and obligations. These are designed to ensure that a deceased person’s affairs are dealt with correctly and to ensure that each beneficiary receives what he or she is entitled to.

What is the difference between a personal representative and a trustee?

A will may create trusts (for tax planning reasons, or if intended beneficiaries are under age or for other family reasons), and will usually appoint trustees to administer those trusts. The trustees are often, but not always, the same people as the personal representatives.

The personal representatives’ duties cease when they are able to transfer to the trustees the appropriate assets or sum of money under the terms of the will or the intestacy laws.

Main duties for personal representatives and trustees

They must put the interests of beneficiaries before their own interests and they must always act in the interests of the estate and the beneficiaries, rather than themselves.
They must not make any profit from their position (unless this is specifically authorised in the will).
They must account to the beneficiaries for all the money and assets in the estate.
They must act reasonably and prudently in relation to all the estate assets and should carry out their responsibilities with due diligence.

If they fail to do any of the above they may have to pay compensation to beneficiaries out of their own money.

What if there is a dispute?

Occasionally a disappointed family member might wish to challenge a will or the actions of personal representatives, or there might be doubt as to the correct interpretation of a will. Our specialist litigation solicitors at Borneos are experienced at making and defending such challenges and we work closely with our specialist probate solicitors to ensure clients receive the best advice available.

If you would like to discuss how we might help you, please: