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When someone dies – Probate

When someone close to you dies, we understand how difficult it can be to handle all their legal and financial affairs whilst still coming to terms with your loss. It might be the first time you have needed to take care of these arrangements, otherwise known as probate, and the process may be unfamiliar to you.

Our solicitors are approachable and sympathetic and can guide you through the process so you have one less worry on your mind.

To administer the assets of the deceased you will need to establish if a valid will has been made, identify all the assets and possessions owned by the deceased, as well as debts owed, and calculate any inheritance tax due. Then tax must be paid, debts settled, assets collected, accounts prepared and the estate must then be distributed correctly so you avoid any personal liabilities.

The service we offer will be tailored to your individual needs. We can assist you with the complete probate process from start to finish. Alternatively, we can just assist you with obtaining the legal authority to deal with probate yourself; this is known as the Grant of Representation and is essentially a court order. We can do as much or as little as you wish.

Hodge Jones & Allen is regulated by the Solicitors Regulation Authority and our lawyers are members of the Law Society and the Society of Trust & Estate Practitioners.

Should any disputes arise during probate we have a specialist team of dispute resolution solicitors who can assist you.

We can also help in circumstances where no Will can be found. The legal term for this is ‘intestacy’. Intestacy is governed by statutory rules. Our specialist team can advise you on those rules and assist in obtaining a Grant of Representation to deal with the estate in question.

Estate administration case studies

Peter – deed of variation and tax saving

Peter was married to Jane and they had three adult children.

Peter and Jane had two rental properties that they owned as tenants in common, so that they could leave their shares of the properties under the terms of their respective Wills. (If they had owned them as beneficial joint tenants on the death of one of them, their share of the properties would have passed to the survivor, automatically).

Peter’s Will left his share of the rental properties to his three children and the remainder of his estate to Jane. Peter died in 2014. Because the value of his share of the properties was more than his available nil rate band (£325,000), this gift created an immediate liability to inheritance tax (IHT) and because the remainder of the estate was spouse exempt, the IHT had to be grossed up, creating an even larger liability to IHT.

We advised Jane and the children that Peter’s gift to the children could be varied to limit the amount passing to them to Peter’s available nil rate band with the remainder of the gift passing to Jane. This was achieved by all the children and Jane signing a deed of variation to Peter’s Will. Because this was signed before any IHT had to be paid, it avoided any cash flow issues of paying the IHT and then reclaiming it.

The end result was that there was no IHT to pay on Peter’s death. The share of the property that Jane inherited will still form part of her estate for IHT purposes, but she can decide what if any lifetime tax planning she wants to do. In any event, because of the terms of her Will, there will be no grossing up for IHT purposes when she dies.

There were other options in this case to avoid an immediate liability to IHT – which were to pass the entire estate to Jane, or as above, but with the excess over Peter’s nil rate band passing into a life interest trust for Jane’s benefit.

Sally – normal expenditure out of income

We acted for Beth, Sally’s daughter who was the sole executor and beneficiary of her mother’s estate. In the last seven years of her life, Sally had given Beth regular gifts of money, albeit of varying amounts, in excess of the £3,000 annual exemption. Initially, it was assumed that these would have to be brought back into account to calculate the inheritance tax liability on Sally’s estate i.e. that all of those potentially exempt transfers had become chargeable.

But, we could see that there was a regular pattern of giving and that although Sally’s annual income was quite high, she had not needed all of her income to meet her day to day living expenses, which were modest. So, we suggested that Beth should claim the normal expenditure out of income exemption, as far as possible on those lifetime gifts.

When we reviewed the gifts and the net income available to Sally in the seven years prior to her death, we were able to claim that a substantial proportion of the gifts made in the last seven years of her life were in fact covered by the normal expenditure out of income exemption, thereby substantially reducing the IHT liability on Sally’s death.

To be able to make a claim for this exemption, it must be shown that:

  • It was made as part of the donor’s normal expenditure;
  • It was made out of their income; and
  • That the donor had enough income left (after the gifts) to maintain their usual standard of living.

A word of warning – many of these words have very specific meanings and interpretations and so each case must be considered on its own particular circumstances.

Registering a Death

  • When can the death be registered? Once a doctor has issued a medical certificate giving the cause of death or the coroner has provided the necessary paperwork.
  • When should the death be registered? Generally, within five days of the death, unless the death is reported to the coroner and there has to be a post mortem or an inquest, which may delay registration.
  • Where must the death be registered? At the register office for births, deaths, marriages and civil partnerships for the district where the person died. You can register in a different district and the details will be passed on to the correct district.
  • Who can register the death? Preferably a relative, but it may also be someone who was present at the death, the person who is arranging the funeral or someone from the hospital or nursing home.

What information do I need to register the death?

  1. The medical certificate from the doctor;
  2. Full name (and any previous names) of the deceased;
  3. The date and place of their death;
  4. Their occupation and their last address;
  5. Name, date of birth and occupation of their spouse/civil partner (whether still living or not);
  6. Any information you have relating to their state benefits;
  7. (Not essential – but it may be appropriate to take ID for yourself).

What if the death is reported to the coroner?

The coroner may decide that:

  1. The cause of death is clear and that a post mortem isn’t needed – the death can then be registered;
  2. That a post mortem is needed and they will release the body for the funeral once the post mortem has been completed and no more examinations are necessary;
  3. An inquest is necessary. The death can’t be registered until that has been completed, but the coroner can issue an interim death certificate as proof of death and in some cases, may allow the funeral to take place.

Can I object to a post mortem if one is ordered by the coroner?

No, but you should tell them if you have strong religious or other objections.

Can I request an inquest?

No, only a coroner can insist on one, but relatives can attend and ask witnesses questions.

What happens when I register the death?

You will be given:

  1. A certificate for burial or cremation (green form) to be given to the funeral director;
  2. A form for the DWP (BD8); and
  3. A death certificate (a copy of the entry made by the registrar in the death register), which costs £4 in England and Wales.

You can buy additional copies of the death certificate at the time and it is usually helpful to have several, for each asset holder.

Download our Administration of Estates guide.

Our Wills and Probate Solicitors are backed by four decades of experience. Our legal practice and team of Wills and Probate Solicitors have a strong track record of achieving favourable client outcomes. For expert legal advice use our contact form or call us on 0808 250 6017 today.

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Our offices are open from Monday to Friday from 9 am to 6 pm.

Phone:0800 437 0322
Fax:020 7388 2106
Address:Hodge Jones & Allen LLP
180 North Gower Street
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NW1 2NB