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Probate is a legal process that’s often carried out against a distressing and stressful backdrop. The level of service we provide differs from case to case, depending on the financial and family circumstances of the deceased, the terms of the will, and how much of the work the executors and administrators are able or willing to carry out themselves.

Your key questions answered

What is probate?  

Probate is the legal process during which executors manage the deceased’s estate. Executors will identify and settle all liabilities, including paying any inheritance tax that’s due within the required six months of death. Executors then distribute the deceased’s assets in accordance with the terms of the will. The ‘Grant of Probate’ is the legal document issued by the Probate Registry (part of the High Court) that proves the will is valid. It confirms that the executors named in the will are legally entitled to deal with estate assets. In practical terms this means the executors are able to sell the deceased’s property and deal with other assets like funds in bank accounts and investments.

If there is no will those closest to the deceased can apply for Letters of Administration to deal with assets and administer the estate.

How long does probate take?

Obtaining a Grant of Probate (or Letters of Administration if there’s no will) can be a time-consuming process. Inheritance tax must be paid within six months of death. However there is no set time limit during which an estate must be settled – although it’s natural that families and loved ones will want finality and closure of the estate as soon as possible. It can take anything from between 3 and 16 weeks to obtain the Grant from the Probate Registry in the first place (longer if there are errors in the paperwork and your application has to be resubmitted). After that, realising the deceased’s assets is dependent on how efficient banks and other institutions are in responding to requests for payment. At DMH Stallard we work hard to finalise estates efficiently, using technology and well-established internal processes to streamline and speed up the process. This ensures families and loved ones benefit from any inheritance without undue delay and are able to move on with their lives, secure in the knowledge that all debts and tax have been paid.

What do I do about probate if the deceased has not left a Will?

Where someone dies intestate, instead of a Grant of Probate, banks and other institutions will need to see Letters of Administration to release assets. You’ll also need Letters of Administration to sell the deceased property and other possessions.  The process for applying for Letters of Administration is similar to that used for applying for a Grant of Probate. Because there is no will, the estate will be distributed according to the intestacy rules which prioritise the deceased’s spouse, children and other direct descendants over others.

Can I track my probate application?

Probate applications can take several months. During that time you or your solicitor can access the Probate Registry tracking system to monitor progress. For us at DMH Stallard this is a useful way to flag concerns about undue delay that may hamper our efficient handling of the estate on your behalf.

Do I need a Grant of Probate?

Most of the estates we administer require Grants of Probate because they tend to be high value and comprise complex assets sometimes located in multiple jurisdictions. Often, we are required to deal with trusts set up by the deceased in his or her will or during their lifetime.

However Grants won’t be required in certain cases, including in estates where:

  • The deceased had no high value assets (banks will usually release funds up to £20,000 without a Grant of Probate, for example)
  • Where the deceased owned property jointly that property can be transferred to the joint owner without the need for a Grant of Probate (unlike cases where the deceased owned a property in his or her sole name where a Grant will be necessary to deal with the estate)
What does an executor do?

Executors are responsible for handling the deceased’s estate. Unlike ‘administrators’ who are appointed by the Probate Registry when there’s no will, executors get their authority to deal with the estate from the will itself. Functions of executors and administrators include:

  • Applying for Grant of Probate or Letters of Administration
  • Valuing the estate for inheritance tax purposes
  • Paying inheritance tax within six months of death
  • Paying all debts on the estate
  • Selling any assets that need to be sold
  • Preparing detailed accounts for the estate to verify expenditure incurred in administering the estate
  • Distribution assets in line with the deceased’s wishes as expressed in the will or in accordance with the intestacy rules

Acting as executor (or administrator) is an onerous task. You have duties to the estate and to beneficiaries and are legally responsible for estate assets and debts from the date of death until the estate is finally wound up. In estates of any substantial size it’s common for solicitors and other professional advisors to either act as executors or provide executors or administrators with ongoing advice during the estate administration.

Do I need to use a solicitor for probate?

Many people handle all aspects of estate administration themselves but there are advantages in instructing solicitors to deal with probate. For example:

  • Getting professional advice means you and your family don’t have to deal with what can be a complex and challenging process – unwelcome at a time when you are grieving the loss of a loved one
  • Familiarity with the process and the way the Probate Registry operates can ensure that solicitors manage the estate efficiently
  • Solicitors can provide advice on post-death legal matters, including post-death variations of a will to reduce inheritance tax or where a beneficiary wants their inheritance to go to someone else
  • Having a solicitor professionally focused on the progress of the estate at all times minimises the potential for errors or omissions that could delay distribution of assets
  • Solicitors are bound by a strict code of ethics and must have professional indemnity insurance in place

 

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Emma Weir
Sarah Kench

Recent work

Advice on mitigation of inheritance tax

We provided technical advice to clients with several million in assets and a substantial annual income. We advised on ways to substantially mitigate a potential inheritance tax liability of close to £1million. Steps we advised our clients to take included giving substantial gifts to family members on a regular basis to avoid the accumulation of surplus income in their estates and to insert specific provisions in each will to reduce exposure to inheritance tax.

Estate administration

Historically the deceased, used big name City law firms for some of his personal work. However, he chose to instruct DMH Stallard to draft his will and the executor has chosen to use us to administer the multimillion-pound estate because of our local knowledge. The breadth and depth of experience means we can deal sensitively with many of the internationally high-profile people who benefit under the will, or who are involved in the deceased’s estate.

Acting as Deputy for an individual with dementia

DMH Stallard were asked to manage the affairs of someone with dementia who had lost their mental capacity, were unable to manage their affairs and continue to live independently. DMH Stallard Trust Corporation applied to the Court of Protection to be appointed as their Deputies. There was no extended family or close friends. We found a suitable residential care home for them that specialised in dementia care and sold their property, taking financial advice to ensure there were sufficient funds to cover their care home fees and general living expenses.

Wills and Estate Planning advice

We provided estate planning advice to a married couple aimed at maximising allowances available to their estates. Specifically in this case we arranged for the wife to gift her residence nil rate band (RNRB) to the children in an attempt to bank relief because she had assets of a lower value than her husband. We maximised asset protection by incorporating a flexible life interest trust (FLIT).

Administration of a high net worth estate.

Historically the deceased, used big name City law firms for some of his personal work. However, he chose to instruct DMH Stallard to draft his will and the executor has chosen to use us to administer the multimillion-pound estate because of our local knowledge. The breadth and depth of experience means we can deal sensitively with many of the internationally high-profile people who benefit under the will, or who are involved in the deceased’s estate.

Advice on post-death variations of will and tax relief

DMH Stallard advised the executors of an estate where the deceased had assets held within a company registered at Lloyds. DMH Stallard successfully claimed Business Relief over various assets within the estate. We also advised the executors on a deed of variation which was successful in securing a reduction in the inheritance tax payable,

Lasting Power of Attorney

We often prepare Lasting Powers of Attorney as part of our overarching private client service, encompassing advice on wills, trusts, inheritance tax planning and succession planning. It’s an area of our practice that demonstrates the way we link various specialisms across the firm to enhance the service we deliver to clients.

Power of Attorney Advice

We provided advice and support to a lady in her 90s with frailty and early stage dementia. The PoA ensured that when her dementia progressed to the stage she could no longer make decisions for herself that one of her daughters would make all decisions in relation to her financial affairs and health and welfare. This was an important document that provided peace of mind and enabled the family to chose the care she received.

Advice on mitigation of inheritance tax

We provided technical advice to clients who were in their eighties with several million in assets and a substantial annual income. We advised on ways to substantially mitigate a potential inheritance tax liability of close to £1million. Steps we advised our clients to take included giving substantial gifts to family members on a regular basis to avoid the accumulation of surplus income in their estates and to insert specific provisions in each will to reduce exposure to inheritance tax.

Intervening to prevent client being pressurised into making investments

One of our long-standing clients contacted us as he was concerned that he was being pressurised to invest in a bond and to place his property in trust. We were able to assist the client in making his own decisions, explaining to him his own financial situation to allow him to plan for his future. We prepared a Property and Financial Affairs Lasting Power of Attorney where the client appointed the DMH Stallard Trust Corporation as his attorney, enabling us to assist and support him to make and execute decisions whilst he retained mental capacity. Furthermore, the LPA allowed the firm to protect our client’s best interests following the loss of mental capacity.

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Penalties for breaching environmental legislation

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An overview of the environmental regulator’s approach to the enforcement and prosecution of environmental offences which outlines the potential penalties and other implications for a businesses who breaches environmental legislation

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Enforcing possession orders – how not to do it

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We explain how not to enforce possession orders, as shown in London Borough of Southwark -v- AA [2014] EWHC 500 (QB)

29/09/2015