The Probate Process. 23 rd May

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1 23 rd May 2011 Ashfords LLP is a limited liability partnership, registered in England and Wales with registered number OC The term partner is used to refer to a member of Ashfords LLP or an employee or consultant with equivalent standing and qualification.

2 Michael Alden Partner Trusts and Estates T: +44(0)

3 Introduction "If you live to one hundred, you've got it made. Very few people die past that age" (George Burns) "I am ready to meet my Maker. Whether my Maker is prepared for the great ordeal of meeting me is another matter" (W. Churchill)

4 Background Three types of Grant Probate Letters of Administration with Will annexed Letters of Administration

5 Grant of Probate A valid Will which appoints an Executor(s) It is the Executor who is applying Authority of Executor starts on day of death Generally can deal with Executor without concerning yourself with the terms of the Will 'behind the scenes' Executor gives promises to Probate Court so High Court has jurisdiction over them

6 Grants of Letters of Administration with Will annexed A valid Will but appointment of Executor fails (pre-deceased, renounced, badly worded, firm ceased trading etc) Authority from date of Grant Usually one or more of the main beneficiaries applies (residuary beneficiaries)

7 Grants of Letters of Administration No valid Will (has died Intestate) Strict order of entitlement to take out the Grant linked to entitlement to estate Authority from date of Grant Not necessarily the case that a surviving spouse/civil partner inherits everything Entitled to deal with the Administrators (as opposed to being called Executors) and do not have to concern yourself with who is actually entitled 'behind the scenes'

8 The Process (Solicitors based applications) Establish entitlement to apply i.e. Executor under Will or residuary beneficiary where no Will Investigate and quantify value of estate Complete appropriate HMRC A/c and submit (see below) Prepare and swear/affirm Oath Submit application (if no tax to pay) If tax to pay, HMRC A/c goes to tax office in Nottingham with payment and receipt obtained receipt goes to Probate Court as part of application

9 What Next? Grant usually issued 2-3 weeks later If queries arise may need to re-swear or provide additional evidence e.g. marks on Will suggest something was attached, signature of testator poor, Executor has slightly different name to that in the Will Once successful, persons named on Grant then administer the estate, either according to the terms of the Will or Intestacy Rules

10 Unadministered Estates/Empty Properties Establish ownership of property (Land Registry Search) Establish death search at the local or central Registry Office Probate Registry search - standing search at Probate Registry (valid for 6 months) - will receive a copy of any Grant issued - the Grant will give the names and addresses of Executors/Administrators - Solicitors, if acting, will be named on the Grant as well

11 What if no Grant issued? Make reasonable enquiries if have names/addresses of any relatives i.e. are they dealing with the estate if has died or do they know who is? Write to the deceased's address may be a mail re-direction service If community small try writing to local solicitors to see if they are dealing

12 What if you are stuck? Creditors - A creditor can apply to the Probate Registry for an Order permitting them to apply for a Grant - This is only really suitable in cases where there is a Will but no-one is doing anything about administering it Who can be a Creditor? - Does not mean only institutions such as banks etc, a Local Authority could be owed Council Tax arrears for instance Tactical - Has been useful in encouraging reluctant Executors or Beneficiaries (Intestacy) to get on with it i.e. threaten them with an application as above

13 Treasury Solicitor (BV) Bona Vacantia - Ownerless goods - Deals with the estates of persons who die Intestate with no known relatives Process - Make reasonable (but not extensive) enquiries of relatives and/or potential beneficiaries first i.e. write to all possible relatives - If no satisfactory response consider approach to the Treasury Solicitor using their online Deceased Persons Notification Form

14 Treasury Solicitor (BV) cont Next Steps - The Treasury Solicitor may decide to take on the estate, which will lead to a Grant and the estate being administered (e.g. house sold at public auction) Tactics - The intervention of the Treasury Solicitor can sometimes encourage Executors/Beneficiaries to give an estate the attention it requires!

15 Treasury Solicitor Contact details Treasury Solicitors Dept (BV) 1 Kemble Street London WC2B 4TS Tel: /3117

16 Safeguards Caveats stop Grant being issued provided not already issued (but not generally very helpful) Probate Court has a wide-ranging jurisdiction and various Actions are available (in extreme cases)