A Guide to Probate and Estate Administration

This guide sets out what has to happen, from a legal and financial perspective, when somebody dies. This can be a very upsetting and difficult period for you. You should think carefully before deciding if you want to take on this additional administration burden which can be complicated and take several months and often over a year to finalise. If you have any concerns, Apple Probate and Estate Services are licensed to provide probate services in England and Wales and can help you during this stressful time.

Probate is a term used generically to refer to the process of dealing with the estate of a deceased person. The people who are legally entitled to deal with the estate of the person who has died are known as ‘personal representatives’.

If there is a will naming executors, and they are willing and able to act, they become the personal representatives. If there is a Will our appointment will be made by the personal representatives, our capacity will be as an “authorised individual”.

If there are no executors willing or able to act, or if there is no will, the personal representatives will be called ‘administrators’, and they will need to obtain a ‘grant of letter of administration’ which gives them authority to act. The administrators will be appointed in accordance with intestacy rules, under such circumstances our appointment will be made by the administrator. To keep things simple we will use the term probate to cover all situations.

The probate process ensures that relevant taxes are calculated and paid, money owing to creditors and owed by debtors is collected, and, if a will has been made, the deceased’s remaining assets are distributed to the beneficiaries in accordance with his or her wishes.

The process of probate can sound quite formal and complicated. To help you with some of the common words and phrases that are used, we have put together a glossary of probate and estate administration terms at the end of this guide.

In certain circumstances you do not have to go through the probate process, for example if:

  • The deceased doesn’t own any property, land or shares and there are no other assets that would require transfer of title.
  • The contents of the deceased’s estate is held jointly with another and therefore passes automatically to the other joint party. Examples of where this may apply are joint bank accounts and some properties.
  • Monies held in a bank are below that bank’s threshold for requiring a grant.

If you are not sure whether probate will be required, Apple Probate and Estate Services can discuss and confirm this with you.

The personal representatives are responsible for administering the estate after a person’s death. They are also responsible for disposing of the body although the funeral arrangements are usually made by the family.

The duties of the personal representative will include:

  • to determine the assets and liabilities of the estate;
  • to protect those assets;
  • to obtain the grant of representation, where needed;
  • to collect in all assets, including taking action to recover debts due, within a reasonable timescale and to administer the estate in accordance with the law the property that devolves on them;
  • to settle any tax liabilities and deliver tax returns as required (the IHT account should be submitted within 12 months of death);
  • to distribute the estate in accordance with the Will or the intestacy rules; and
  • to manage the estate correctly.

Personal representatives, have a fiduciary duty to the beneficiaries of the estate, and owe a duty of care to the beneficiaries. Many of the provisions in the Trustees Act 2000 will also apply to the personal representative. Personal representatives are personally liable for any loss incurred as a result of a breach of their duty in this role. This may arise from misappropriating assets from the estate for their own use, from maladministration or from negligence. A breach of duty by a personal representative is known as ‘devastavit’. The appointment as a personal representative is for life and is not discharged once the estate is finalised. If income becomes due to the estate in the future or if claims are made against it, it is up to the personal representative to deal with them.

If we are appointed by the personal representatives to alleviate this burden it is the personal representatives that are our client and not the beneficiaries.

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