Gaining Probate.
This is a brief summary of responsibilities and duties which an executor undertakes when applying for Grant of Probate and the administration of the deceased estate.
The First Steps.
The executors more often referred to as the Personal Representatives or (PR’s ), are often family, and beneficiaries have particular duties and responsibilities towards the estate.
Before the estate can be distributed a Grant of Probate will be issued to one or more of the PR’s willing and able to act.
Following a person’s death a number of matters will require immediate attention by the PR’s.
- The original will should be obtained.
- Give immediate consideration to the terms of the will to ascertain any special directions as to funeral wishes. This will require careful discussion with the family.
- Assist the family with making arrangements for the funeral, if requested.
- Ensure that appropriate steps are taken to secure the deceased property; For example, Important and valuable assets and documents should be removed to a place of safe keeping, and if a professional executor is used or a firm connected to the work, these would normally be placed with the firm. They should not if possible be left in an empty house.
- Advise, and if appropriate make arrangements for temporary loan facilities from a bank, where members of the deceased immediate family may otherwise not have money available to them until after the estate has been administered.
- Claim a copy (copies) of the deceased death certificate from the appropriate registrar’s office.
Preparing to Obtain a Grant of Representation.
The PR should obtain details of the deceased property and of any debts outstanding at the date of death by asking for building society, passports, share certificates and details of bank accounts and insurances. Precise valuations will be obtained by writing to the various institutions holding the deceased assets, producing the death certificate as evidence if so required.
Enquiries should be made of the deceased’s bank manager if appropriate, or more likely writing to the deceased’s bank bereavement department as to whether the bank holds in its safe custody any share certificates or property owned by the deceased which may be of value.
Remember to ask for withdraw and transfer forms for signature by the PR’s when writing to the institutions for information. These can be signed immediately so they are ready to use once the Grant is obtained and administration begins.
From the will the PR’s must establish the identity of the beneficiaries, and the nature and extent of their entitlement (e.g. whether as a legatee, or as a residuary beneficiary). If specific legacies are being given, it is important to ascertain whether the property given by those specific gifts is part of the estate.
Missing an unknown creditors and beneficiary.
The position of the PR carries with it responsibility to administer the deceased’s estate correctly, and failure by a PR to carry out their duties can give rise to personal liabilities.
PRs can be faced with a problem of persons entitled under the will having disappeared or unknown to them.
Failure to pay an unknown creditor or beneficiary is a breach of duty. A PR should protect themselves against personal liability by complying with the statutory advertisement provisions. Notice of death must be placed in the local papers and the London Gazette.
HMRC Account.
The assets must be valued in accordance with the IHT valuation principles. Often PRs may need to instruct other professional people to prepare these valuations.
These values and any liabilities at death will be inserted into the appropriate HMRC account form when the PRs apply for the grant. The amount of IHT payable before the application for the Grant may now be determined.
The Probate Papers.
Every application for a Grant of Representation must be supported by the appropriate form of oath.
The purpose of the oath is to;
- Give details of the deceased.
- Set out the basis of the applicants claim to take the Grant.
- Require the applicant to swear they will administer the estate correctly.
- In the case of the oaths for executors with will and testatrix, to identify and exhibit the will and any codicils.
Administration of the Estate.
Having obtained the Grant of Representation, the PR’s have full power to undertake the administration of the estate.
The Administration of the Estate can be divided into 5 stages as follows;
- Consideration of the duties and powers available in carrying out their task.
- Collecting the deceased assets.
- Paying the deceased funeral and testamentary expenses and debts.
- Distributing the legacies.
- Completing the administration and distributing the residuary estate.
The Administration Period.
All the above stages in the administration occur in the ‘administration period’ which commences at the moment immediately following the death and ends when the PR are in the position to vest the residue of the estate to the beneficiaries, or the trustees of a trust arises under the will.
Duties of the PR (executors).
The PRs of a deceased person are under a duty to collect and get in real and personal estate of the deceased, and administer it in accordance with the law. This includes paying the deceased debts with due diligence, taking responsible care in preserving the deceased estate.
Accounting Requirements.
Accounts showing the real and personal estate of the deceased, is administration and distribution and must be produced at the end of the administration period. It is important that adequate records be maintained from the start.
Preliminary Considerations.
- As soon as possible pay the funeral account and any outstanding debts and testamentary expenses.
- Repay any loans agreed with the bank, these will probably be a ‘first proceeds’ undertaking, and PRs must use monies first released by them to repay the bank.
- Decide which assets to sell to raise the money for the payment of various outgoings. PRs must take consideration when deciding which assets they will sell.
- Where possible the wishes of the residual beneficiaries should be respected when deciding on the sale of assets.
If you would like any further advice, please do not hesitate to contact us:
3C Legal Limited
Tel: +44 (0) 1684 212147
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info@3clegal.co.uk