Getting advice

It can be difficult trying to cope with events after the loss of a loved one. But someone needs to take care of the financial affairs of the deceased and professional advice from a solicitor can be invaluable.

Using a solicitor

Although it is possible to obtain grant of probate and administer the estate without a solicitor's help, this is generally not advisable as there are various legal formalities you need to follow to make sure that the estate is dealt with correctly. Without the help of an expert, there's a real risk you could make a mistake, which could cause problems for you and your family.

What is A Grant of Representation?

A Grant of Representation is an order issued by one of the Probate Registries of the High Court, which confirms or confers the authority of the "personal representative" (i.e. the executors or the administrators) to administrate the estate of the deceased person. There are three types of Grant of Representation:

•   A Grant of Probate: This is issued to one or more of the executors named in the will to deal with the estate. It confirms or "proves" the authority of the executors appointed by the Will.

•   A Grant of letters of Administration with Will annexed: This is issued when there is a Will, but either there is no executor named in the Will or, alternatively, all the named executors are unable or unwilling to act as executors and to deal with the administration of the estate.

•   A Grant of letters of Administration: This is issued when the deceased died without leaving a Will (which is known as being "intestate") The persons who obtain a Grant of Letters of Administration are known as administrators and must establish their entitlement to apply for a Grant.

The duty of the personal representatives is to administer the estate. This includes collecting all the assets, settling all the liabilities, exercising any available powers and discretions and then disturbing the rest of the estate in accordance with the terms of the Will or the rules if intestacy. It is normally not possible to collect assets (apart form the joint accounts which pass automatically to the survivor) or to pay liabilities of the estate out of the assets of the estate until the Grant of Representation has been obtained.

What is needed to obtain a Grant of representation?

The personal representatives must swear an Affidavit for the court. The executors must say that they are the executors appointed by the Will. The administrators must establish their entitlement to take out a Grant. In both cases, the personal representatives must state the value of the gross and net estate of the person who has died, and they must swear that they will ensure that his or her property will be distributed in accordance with the law and with
the Will if there is one.

You can see, therefore, that we shall need to ask you for details of all the property and all the debts or liabilities. The property will include any house, car, furniture, savings, life assurance policies, personal possessions Jewellery and anything capable of being valued and of being transferred form one person to another. The liabilities may include a mortgage, outstanding bills, etc.: and will also include the funeral expenses.

How is a Grant of Representation obtained?

An oath for Executors or an oath for Administrators must be lodged at one of the probate Registries of the High Court. It will generally also be necessary to submit an Inland Revenue account setting out all the assets and liabilities. Once the Registry accepts the papers, they will issue either a Grant of Probate or a Grant of Letters of Administration. In either case it is that document which allows the executors or administrators to administer the estate. This means, for example, that the Grant will be registered with the companies in which there were shares, or with the building societies or banks in which there was an
account in the deceased's sole name.

After the Grant has been registered, it will be possible for the property or the money to be transferred to the personal representatives, so that they can deal with it in accordance with the Will, or in accordance with the intensity rules if there is no Will. Of course, a final distribution of all the assets can only be made when all the liabilities, especially tax liabilities, have been ascertained and settled. This can take some time, particularly where values are uncertain and have to be agreed with he Revenue.

How long will this take?

The circumstances of each person are unique, so it is extremely difficult to decide how long it will take to obtain a Grant and to administer the estate. All we can say is that we shall keep in touch with you from time to time in order to tell you the position we have reached and how matters are progressing.

Estates which are apparently simple can prove to be complicated and take much more time than is envisaged at the outset. Similarly, a large estate may prove to be straightforward. Difficulties may arise for any number of reasons.

Typical problems which may substantially increase the time taken are:

•   the need to go through and sort out numerous old papers;

•   searching for details of lifetime gifts which the deceased may have made;

•   difficulty in realising assets or in settling tax or other liabilities;

•   difficulty in tracing beneficiaries or in dealing with the beneficiaries who are under age;

•   foreign property and the need to liase with foreign lawyers;

•   agricultural or Business property, especially Lloyds assets which cannot be wound up for at least three years;

•   there may also be scope for tax planning and consideration of a Deed of Variation (varying the effect of the Will or the intestacy rules).

The final winding-up of the estate

There comes a point at which all the assets have been collected and all the liabilities will have been discharge. The balance of the estate will then be ascertained and can be distributed or held for the beneficiaries under the terms of the Will or the rules of intestacy.

When the final distributions have been made, we shall prepare estate accounts setting out full details of the administration of the estate. If the estate or its administration is complex, then it may be possible for the personal representatives to make interim distributions to beneficiaries before the final winding up.

Costs

Charges vary between solicitors and will depend on the size and complexity of the estate. However, price is not the only issue as a good probate solicitor can also help you through the the difficult times by taken some of the burden of the administration of the estate from the beneficiaries.

Contact

For advice on this matter please contact:-

David Nuttall BA (Hons) Tel: 0161 368 1559

E-mail webmail@harrisontownend.co.uk

Authorised and regulated by the Financial Services Authority. Regulated by the Law Society. Nothing in this web site constitutes legal or investment advice or a recommendation by Harrison Townend & Ormeshers or any of it's employees. You should always seek independent financial advice before making any investment decisions.