Probate Trusts & Administration FAQs

---

 

Probate is a sort of Court Order that confirms the appointment of the executors named in a Will. You do not need to apply for Probate unless the value of the deceased's free estate is over £5,000. Jointly owned assets of a husband and wife generally (but not always) pass to the surviving co-owner by survivorship and not under the deceased's Will and so do not form part of the free estate. Most financial institutions will need to see a copy of a grant of Probate before they will pay the executors money owing to the estate. The application for Probate is made by the executors named in the deceased person's Will. If it is made by lay-executors this is done in person at one of the regional Probate Registries around the country. If the application is made by solicitors as professional executors or on behalf of a client who is an executor, the application is made by post. Before probate can be granted it is, subject to certain exemptions, necessary to give a detailed inventory of the deceased's estate for inheritance tax purposes. Any inheritance tax due must be paid before the Grant of Probate can be issued.

---

 

Letters of Administration equates to a Grant of Probate where the person who has died did not leave a Will. The application is made to one of the regional Probate Registries by a person whose function is similar to that of an executor, and although the terminology is sometimes mixed up, their official name is the administrator. The person who acts as administrator is the person who is entitled to the biggest portion of the deceased's estate. The Law states who inherits a person's estate when they have died intestate ie without leaving a Will.

---

 

It sounds as if your aunt set up a trust in her will by which she left an asset to your father (the life tenant) for his lifetime and after his death to you (the remainderman). People generally set up this kind of trust to ensure that a particular asset such as a house will pass to an ultimate beneficiary of their choice; it is a common device used where a couple have children from a previous relationship and while they want to ensure that their new spouse has the security of a home for life, they wish to control the ultimate destination of the gift ie to their own children. Your father will be entitled to the income the asset produces during his lifetime and you will then receive the asset itself after his death.

---

 

A minor (someone aged under 18) may not own property and so any gift by Will must be held on trust for them until they are 18, or older if you stipulate this in your Will. If you do not appoint someone as your daughter's trustees (there must be a minimum of one and a maximum of four) then your executors will take on this role. Your trustees will have a statutory power to advance both income and capital from your daughter's trust fund to her (via her guardians) to provide for her needs as she grows up and most professionally drafted Wills in fact expand these powers so as to provide the maximum possible flexibility.

---

 

As executor your duties are to assess the value of your father's estate, to obtain the Grant of Probate, collect in all assets, pay all debts and give effect to the Will. Before you can apply for Probate you have to find out the value of the estate and this means getting property and other assets valued and getting details of monies owed to the estate with interest to the date of death where applicable. You will have to provide a copy of the death certificate to all relevant parties. You will have to submit an income tax return for your father calculated to the date of death and get details of all monies owed by your father. When you have this information you will have to calculate whether there is any inheritance tax due from the estate and even if there is not, you may have to complete an inheritance tax form. Any inheritance tax generally has to be paid before the Grant of Probate can be applied for. Once you have the Grant of Probate you can collect in the monies owed to the estate, pay any outstanding debts, and then pay the legacies mentioned in the Will and transfer any assets. The length of time this takes varies according to how long it takes third parties to deal with queries and valuations, and whether there are assets to dispose of (such as houses or businesses) that take some time to market and sell.

---

 

Nobody has to accept appointment as an executor and provided your mother has not started dealing with any aspects of the estate (called intermeddling) she may decline to act, or technically renounce Probate by signing a document called a Renunciation. If she wants to remain an executor but not be involved she can grant a power of attorney so some trusted person can act on her behalf. Alternatively if you give notice to her that you are to do so, you may apply for Probate with power reserved to her - this gives her the option of becoming involved at a later stage if she wishes to do so.

---

 

Sometimes with great difficulty. Generally the executor gathers up all the deceased person's paperwork and goes through it to see what assets and what liabilities there is likely to be in an estate. Even if share certificates and building society passbooks have been lost or destroyed, there are usually clues as to the existence of shares and accounts etc by reason of tax deduction certificates arriving annually in the post, as well as company reports and so on. If you suspect there may be shares in a particular company in existence you can write to the share registrars for the company in question and most will be able to give you a quick and accurate response now that records of members are computerised. National Savings are very quick at confirming the existence of premium bonds and savings accounts, if you suspect that there may be any of these in the estate. However many millions in bonus share issues, premium bond prizes and insurance monies go unclaimed every year in the UK which is a good reason for keeping your important paperwork in a central location and in good order.

---

 

The person or persons entitled to the greatest share of the residue of the estate are entitled to take out the Grant, which in such a case is called a Grant of Letters of Administration with Will Annexed. Their powers and duties will then be pretty much the same as if they had been appointed by the deceased's Will.

---

 

The executors could be personally responsible to a beneficiary if they administer a deceased person's estate without giving the beneficiary what they are entitled to and so they must go to quite extreme lengths to trace a missing beneficiary. There are companies which specialise in beneficiary searches and they have a fairly high success rate. In the event that this route fails, it is possible to go to court seeking a 'Benjamin Order' ie an order that the estate is distributed as if the beneficiary in question is dead. However a cheaper alternative from the executors' point of view may be to take out a single premium specialist insurance policy which insures the executors against the contingency of the disgruntled beneficiary turning up and demanding his due.