Wills and Probate

The law governing Wills is complex but that does not mean it is expensive or difficult to have a Will prepared by an experienced lawyer. We can help you prepare a Will that accurately reflects your wishes or assist you with the process of applying for probate or letters of administration if you have lost a loved one.

Michael Trueman – qualified on 1 March 1986 and is the Senior Director and Solicitor Advocate. Michael has carried out residential and commercial conveyancing and probate work since 1986.

Making a Will

To make a legally valid Will, you must: 

• make it voluntarily
• be of sound mind
• be at least 18 years
• make the Will in writing
• sign the document in the presence of two adult witnesses who should each also sign the document in your presence

Witnesses and their spouses cannot be beneficiaries under the Will. You should indicate in the Will who should be your executors and let them know where the Will is kept.

If there is any doubt or potential for dispute as to your mental competence, you should get a doctor’s confirmation of your capacity to make the Will and include this document with your Will.

What happens when somebody dies without a Will?

If like many people you have been putting off making a Will, then you might want to consider what happens if you do not make one. Dying without a Will can cause all kinds of uncertainty for the loved ones you leave behind; how do people know if you had any final requests, what funeral arrangements to make, and perhaps most importantly what happens to your children and your assets? 

If you die without a Will, your assets (known as your ‘estate’) are distributed according to strictly defined legislation known as the Intestacy Rules. The issue with this is that the rules do not necessarily take into account your individual circumstances. Depending on your marital status and personal situation there is a possibility that your estate will not go to the people you might want to benefit. If you are married and do not have a Will, it is likely that your estate will pass to your spouse. If you are not married and do not leave a Will, it may be difficult for your partner to receive anything from your estate. Making a Will is the only way to pass specific parts of your estate to an unmarried partner, children, stepchildren, extended family, or friends.

When someone dies without a Will, there is nobody with immediate authority to act as the personal representative of the deceased. Usually, it will be a spouse but there is an order of relatives who may apply to the Probate Registry for a grant of letters of administration.

By making a Will you are taking care of those loved ones you leave behind and removing the stress they might otherwise face at any already extremely difficult time of their lives. 

What is probate?

Probate is the legal right to deal with someone’s property, money, and possessions after their death. Only certain people may apply for probate. If there is a Will, then the executors will be named in it and are usually aware of the role they are expected to fulfil. If there is no Will, then the most appropriate person may apply for probate – this will usually be the person’s closest living relative. 

Is probate always required?

Although in most cases probate will be necessary, before applying you should check that probate is needed. If, for example, the property or assets such as shares were jointly owned, then these will automatically pass to the surviving owner. If the estate consisted only of savings, probate may not be required. If the estate has a value of less than £15,000 probate will usually not be required. In all other cases, unless and until you have been granted probate, you are not authorised to attend to financial matters or put a property on the market.

Many changes have occurred in recent times in respect of the probate process, including the introduction of a centralised system and removal of various IHT forms but nonetheless, the probate process can be time consuming and complex, so it is worth considering retaining an experienced lawyer to help with the process. 

Applying for probate

If there is a Will with more than one executor named, up to four executors can apply for probate. They must provide the original Will with their application, which becomes a public record. 

Before applying for probate, you should make an estimate of the worth of the estate and whether or not inheritance tax will be payable. You will need to write to banks, pension providers, employers, mortgage lenders, etc, and take into consideration any gifts given during the previous seven years, as well as other assets such as jewellery, furniture, paintings, and other household items. You must keep copies of the Will and records showing how you valued the estate.

You will also need a death certificate and the original Will before you can apply for probate. You need to complete the required online forms and pay the fee. You will usually get a document in response within a 4 – 8 weeks. This will either be a grant of probate or letters of administration (in the case of an intestate estate), both of which allow you to start dealing with the estate. We can help you to understand what forms need to be completed, which Grant is required, whether or not you need to account for tax to HMRC, how this can be paid if so and when. We can advise you on the payment of tax in instalments or by deferring for example until a property is sold.

You will need to pay any debts or bills and distribute the assets to the beneficiaries. You must keep records about how the estate was distributed and written confirmation that beneficiaries received their share.

There may also be instances whereby the electronic system for application cannot be used, and we can help to advise on these more complex situations, to include obtaining a double Grant or a UK Grant where a foreign Grant is already in place.

What if probate is contested?

Where more than one person may apply for probate or there is a question over the validity of the Will and a dispute arises, you can stop a probate application by entering a caveat. The caveat lasts for six months and ultimately, if the matter cannot be settled by other means, the decision about who should be granted probate may end up going to court. 

There are of course times when you feel executors are not managing the estate and administration as they should, or there are issues with the drafting of a Will which leads to queries as to it’s administration – we can help with this.

Knowing you have tied up all your loose ends in the exact way you want can give you peace of mind. When you make a Will, you are leaving specific instructions for your loved ones that will be followed precisely. All families are different and there is no one-fit solution when it comes to preparing your Will. We can advise you on any part of the law regarding wills and probate and prepare a valid Will that is tailored to your individual circumstances.

Probate Fees and Costs

Our fee is 1% of the gross estate, plus vat plus letters, emails and texts sent will be charged at £10 plus vat each. Routine letters, emails and texts received will be charged at £2.50 plus vat each. Routine telephone calls are charged at £10.00 plus vat. In the event of longer telephone calls, the actual time spent on the call will be charged at an hourly rate of £240 plus VAT.

The hourly rates set out above are reviewed on 1 April each year and we reserve the right to increase them before the end of your matter. We will notify you in writing if this happens.

All our charges will have value added tax (VAT) added to them. At present the rate of VAT is 20%.

As your matter progresses, we may incur expenses such as travel expenses and experts’ fees. These are called “disbursements” and you will have to pay them in addition to our own charges. VAT is payable on some disbursements.

Our normal practice is to ask clients to make payments on account of costs and disbursements. We would be grateful if you could pay £350 on account.

The Probate registry is a centralised system – currently their timescales are 26 weeks for a Grant of Probate to be issued. The probate process can take approximately 12 months. The timescales depend on the complexity of the estate and the nature of the assets within the estate.  The first stage is to obtain all the information about the estate from the executors and family so that we can contact third parties such as banks, pension, property and insurance companies to obtain full information about assets and liabilities of the estate. There may be property which requires valuing and assessing, beneficiaries need to be located. When we have all of the assets information and documentation we are able to prepare the draft estate account and the Inheritance tax forms. IHT needs to be paid within 6 months of the date of death. We hope the video on this page is helpful as a further guide.

Probate disbursements:

S27 Notices (the Gazette) statutory advertisements £69.50 plus vat

Will search fees £1.50 each

Electronic asset search £155 plus vat

Office copy probate grant £150 each

Grant of probate fee if over £5000 £273

Estate search £160 plus vat

Please review our Probate Guide and Probate Video for important information on the process of probate and administering an estate.

If you need assistance, contact one of our lawyers at [email protected] or call 01865722383 for expert legal advice.