Wills & Probate

Wills and probate

Probate – Administering the Estate of a Deceased Person Where there is a Will.

In England and Wales probate is the formal process whereby an executor (or executors) of a will obtain the formal document which is needed in order to deal with the estate of the deceased. Very often probate is obtained by a solicitor acting on behalf of the executors but in simple estates or ones of low value there is no reason why it cannot be done by the executor acting personally.

An executor should, amongst other things, be chosen for his or her business like qualities and so obtaining probate in a simple estate should be within the competence of most people.

Although probate is sometimes contested and that will lead to a formal hearing by a court the vast majority of cases are uncontested and obtaining the grant of probate is more of an administrative matter than anything else. If the testator did not leave a will and died intestate then the next of kin will apply for “letters of administration” rather than probate but the process is basically similar.

In most cases the executor has to swear an affidavit (known as the executor’s oath) which sets out the fact of the testator’s death and various matters such as the value of the estate etc. This needs to be lodged with the Probate Registry together with the original will, the probate fee and, depending on the value of the estate, an Inland Revenue account.

If everything is in order, the grant of probate will be made within ten days or so. In straightforward cases the executor can easily make the application himself and the staff at the Probate Registry are usually more than willing to explain the procedure involved and, indeed, on payment of a modest fee, even help draft the necessary affidavit.

Quite often a solicitor will handle the administration of the estate and there may be several good reasons for this although in simple cases it may not be necessary at all. One reason why a solicitor may act, for example, is because he or she has been appointed an executor under the terms of the will. This may or may not have been a sensible thing for the testator to do and if it is ever suggested to you that you should appoint a solicitor as an executor of your will it is wise to consider whether it is really necessary.

Sometimes it is but it is not something which should be done as a matter of course for reasons which we have explained on the page concerning pitfalls to avoid in will making. That applies even more so to the appointment of an institutional executor such as a bank. If your will has a clause containing the latter you would be well advised to change it unless you have very good reasons for not doing so.

More often than not an executor will ask a solicitor to act in the administration of the estate simply because the executor does not feel competent to do it or, possibly, is too upset. Sometimes, too, it is done in order to be seen to be fair and these are perfectly good reasons. Naturally, in the case of more complicated estates which might involve, for instance, the sale of properties or negotiations with the Inland Revenue the services of a solicitor might be thought prudent by most people.

If a solicitor is used it is always sensible to agree the basis on which the estate will be charged at the outset and to be quite clear about this. In practice most solicitors charge on a time costing basis for probate work although some may work on a percentage of the value of the estate or on a fixed quote or whatever. Time costing is certainly by far the most common and it is sensible to enquire exactly what those rates are.

Very often the administration of an estate will involve the sale of a property which, quite likely, the solicitor administering the estate on behalf of the executors will handle. There is a point to watch here. Conveyancing, i.e. buying and selling properties, is a very competitive market and solicitors’ charges for doing this work are usually very reasonable.

However, when a solicitor sells property as part of the administration of an estate no separate fee might have been agreed for that part of the work and so the solicitor may charge on the time costing basis applicable to the work involved in the administration of the estate.

This may well result in the estate being charged a higher price than would have been the case had quotes been obtained for just the sale of the property. It is as well to be aware of this and if the estate does contain a property or properties to be sold a separate price can be agreed for doing this if the executors so wish.

For further information, or to discuss your case, email tahmina@linkslegal.co.uk.