At the moment a person passes away, several agendas are set in motion. The police or hospital will notify the relevant authorities. Family members will be contacted. Processes begin to officiate the death. One of the main aspects aside of funeral arrangements will be the handling of the will and the deceased's estate.
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Not everybody has a will ready made and sometimes a person's estate is left in limbo for a while. Occasionally there might be a will but family members will contest who is the Executor or who should and shouldn't be a beneficiary. In certain circumstances an Administrator may be appointed by the Probate Office or very little to no paperwork can be required. Let's look at a few scenarios so as to understand the whole Will, Administrator, Executor, Probate angles a little better.
When a will is first formed, the will maker suggests a person who may be a close family relative or a very close friend, to manage the dispersal of their estate. This person will thereafter be termed the Executor of the Estate. It is common for the person named to know beforehand. But not necessarily the entire family or extended family.
A named Executor can also be the family solicitor. An Executor does not need to be one of the named Beneficiaries. However a Solicitor may charge a fee for carrying out the duty. Any named Executor will have to visit the local Probate Registry Office to gain permission to carry out these duties and have a variety of financial assessments on the Estate take place.
It is sometimes common place to name an order of Executors. For instance if a person writes a will when they are seventy years old because they don't expect financial commitments or assets to change any further, they they may name a Son as first Executor. To ensure they don't have to update the will again, they may name a Niece or Grandson. Should either of the first or second die before the will owner dies, then the third Executor can carry out the duties.
In rare instances there either might be no will, or there's a will but no executors have been named or all have died. The position then changes legally from Executor to Administrator. To begin this process and become an Administrator, a person who was closely or loosely related to the deceased or a friend will have to apply to the Probate Registry using the relevant forms. Once appointed with Letters of Administration they can fulfil their voluntary obligations. The tasks of an Administrator are the same as an Executor.
A will is a legal document that suggests beneficiaries of an Estate and an Executor of an estate. Where there is no will or not named Executor or they have passed away. A third party needs to apply for Letters of Administration. This may also be termed Probate or a Grant of Representation.
There cannot be both an Executor and an Administrator unless one or the other have been removed or they have stepped down. The Administrator can only be legally appointed by the Probate Registry Office. Again, they can be a family member distant or close related, a friend or the family solicitor. These 'Letter's enable an Administrator to carry out the full wishes of the Will and disperse the Estate.
There is one exemption to there being a named Executor and an appointee who might receive Letters of Administration. If the Will throughout sees only one mention of a single beneficiary, then this person can automatically become the Administrator and receive Letters of Administration and override the named Executor but usually they would be the same person.
Wills and legalities after death tend to apply to property and ownership, after which debts and other financial assets. But primarily an Executor or Administrator with Letters of Administration will be carrying out wishes related to property. Where there are no properties involved or large assets to mention, it is less complicated.
Firstly an individual would have to be aware that there is an Estate to be cared for. Possibly the only way to figure this out would be to apply to be an Administrator of an Estate. You will need to visit the Probate Registry Office - they are spread across the UK in most major cities, and present a completed Probate Application Form.
Becoming an administrator of an Estate happens for the following reasons:
Through centuries of Probate being handled by the State, an order of first refusal has been drawn up to counter any arguments. While historically an Estate may have passed to the first Son, there is no such problem in UK law when it comes to the Commoner.
The following is stipulated, and a Grant of Representation would be first handed to a Civil Partner / Husband or Wife - not an unmarried partner unless stated in the Will and Testament itself or Letter of Wishes. Then to Child, Grand Child, Parent, Sister / Brother, Nephew or Niece or to the closest relative after these. Nominally the next of kin.
Firstly, if you live miles away from a city centre or local Probate Registry do not feel you have to go in to see them personally. There can often be a wait on the day also. If it is urgent or you are only in the country for one day then this can usually be accommodated as a special request.
However in all other circumstances, where an oath is required to formalise the Letters of Administration and become an Administrator of an Estate, this can be overseen by a Solicitor. Once you complete an application for Probate, an interview will be arranged, you should bring as many legal documents with you as possible. The Death Certificate, the will itself and any forms you have been advised to bring by probate themselves.
Probate exists to legalise the passing of assets and property through a named Executor or Administrator to named Beneficiaries in a will or to a Next of Kin. As well as keeping agendas legal it also stands as a Government watch point for inheritance tax. The threshold changes from time to time but an Executor or Administrator will be expected to pay this tax before receiving any duties to disperse the assets of the Estate.
Once the tax, if any is due is paid, which is notified via the first letter containing a demand for inheritance tax, only then will Letters of Administration be issued to the Administrator. with this, just as with Probate for an Executor, you will receive a copy of the Will which will be designated an Official Copy with an official Probate Registry ink stamp. This can then be shown to banks, lenders and government officials when required, you should ask for more than one authorised copy.
Being slightly different to a named Executor of a will, which can take a few hours to a few days to receive Probate. An Administrator may well have to wait up to six weeks to have all avenues investigated and all data collated to ensure a claim is authentic and won't be contested by another living soul. It could take as short as three weeks but there may be complications. Please ask if you have any responsibilities that can be taken care of during this duration or perhaps prepare for once accepted so you can carry out your duties quickly.
There are three scenarios that should be considered first:
a) Are the debts more than the total worth of the Estate assets? If so you may consider contacting a solicitor so as to find out the best way to meet these legal demands, a kind of priority as to who should get paid and who might lose out.
b) Do you know and understand the Rules of Intestacy? If a person dies intestate - without a will. There are strict guidelines for how an Estate should be distributed. You should adhere to these rules or consult a solicitor.
c) If you are the sole beneficiary of the estate as well as the Executor things are much simplified. However you still need to go through the following list as comprehensively as possible.
Consider opening a separate bank account for the estate in your name. Banks have specially formed accounts for such an occasions. Simply make a request. Then you can put all funds from assets sold or investments returned into one account for safe keeping, to be either distributed amongst beneficiaries or for your own accounting at a alter date.
You'll need to find out details and accounts numbers for all the Banks, Building Societies and range of financial institutions that the person dealt with, so these can be closed or frozen and balances forwarded to you. This will include banks involved with mortgages. They may well request a copy of Probate and the Death Certificate. This is why it is advisable to have more than one official copy.
You will need to run a check for any outstanding debts and creditors. You can do this via Experian or by opening latest bills and invoices. Cancel each account where possible and pay the amount due as soon as possible. These may include utility bills to council taxes. With regards property you may wish to change the name of the account holder if retaining property in the interim. Or to the name of the person renting the property.
Make a comprehensive list of all the above and an extensive list of all assets and whereby possible current estimated values. If a house needs evaluating, bring an Estate agent in to value. The same with antiques and investments. Experts can cost money. Comparative research from current magazines may assist.
If the estate is over a certain value then in all likelihood the Probate office will have already informed you of the amount of inheritance tax that is required to be paid before you distribute assets to the beneficiaries or yourself. There is a threshold and you may not need to pay anything.
Gather all documents and make best use of them when approaching HM Revenue and Customs and the Probate Registry.
Ensure you collect any amounts due to the estate by way of loans. If there are joint properties or companies involved, use the service of a solicitor and make sure the partner in each relationships understand their obligations. This is not a necessity for you if not the named joint holder, it simply tidies up affairs.
If there are any other beneficiaries, please ensure parties are notified of what they have been bequeathed. The named people do not have any legal obligation to take on furniture, properties or responsibility for pets or children if they don't wish to.
An occasion might arise whereby a person named as an Executor does not with to carry out that duty. There might be a variety of reasons for this but one would suspect they are all personal. If a will has identified you as the role of Executor you are not obliged to take up that role. Although having found yourself named, you will have to redirect the handling of the Estate to another person or leave it to others to decide. This can be achieved via two avenues.
The first is to contact the Probate Office and complete a Form of Renunciation with the assistance of a signatory that is a disinterested witness i.e. does not benefit from the dispersal of the will and enclose the Will and Testament. This will release you of Executor duties for the named Estate at the point of registration. After which a family member or relative or friend either under advisement or knowing nothing is now being done, can take over the reigns and apply for an Administrator role by requesting Letters of Administration status.
The second way this can be achieved is by using your status as Executor, to renounce your position and name somebody else as the Executor of the Estate instead. Again this is formalised via the Probate Registry and using form PA1. The person you name will still need to acknowledge the change and accept the new role.
In the strange circumstance that you either see that person fail in their duties as Executor or you wish to take the role back on. You will need to apply through the courts to have the position re-allocated to you and have the previous renunciation retracted.
These instances can both occur if:
Being an Executor of an Estate should be a privilege. In most cases the Executor is the sole or lead beneficiary, especially when the death was to do with old age. There may be circumstances when an Executor or Administrator is deemed to be out of their depth, either through no fault of their own or because they are wilfully carrying out duties incorrectly for a reason.
Such reasons to wish to disqualify someone from their position are:
Your first point of contact in this situation should be the Executor. You can ask them to provide an up to date account and record of the administration thus far. This may tempt them into bucking their ideas up or asking for your help. If you are still not convinced then you can apply to a judge to replace the Executor, this is by no means easy however and would require distinctive proof their duties have been wholly misplaced.
Only beneficiaries of a will or next of kin can apply for such measures. An unmarried partner may not hold any sway and you should really attest the will or have your name included in the will as a point of fact of what could happen in the future. A court may agree to removal if the following is proven; if the executor is disqualified (in prison or institutionalised), unable to confirm to the rules of the role (mentally unfit) or exceptionally unsuited to the role asked of them.
There may be other instances where an Executor refuses to act:
For whichever reason a named Executor within a will may not start the process of applying for Probate. If this occurs and you are the next of kin, believe yourself to be a named beneficiary or are a concerned third party there are two ways you can try to intervene. As in most cases, the first point of contact should be the current Executor.
Simply inform them that if they do proceed within a certain time period with Probate and issuance of the will, that you have or intend to inform the courts of the situation and obtain an application to name someone else as Executor or Administrator of the Will. If this succeeds a court order will allow the next of kin or named party to apply for a Grant of Probate.
In such a situation whereby the Will's contents are unknown. You can again apply to the court to enforce that the Will is made public within either days. After this allocated period, a citation may be made to force the Executor to proceed with delivering the Will and renounce themselves from the role as detailed above or begin Probate proper within a certain duration. Failure to do either will see Grant of Probate handed to the named objector.
Items that may support your court applications are as follows: