We understand that acting as an executor for the first time can feel daunting, particularly when you are grieving for a loved one.That’s why we’ve prepared this simple guide. It includes a few practical steps to take in the first days after a death, and then what you can expect to happen during the stages of fulfilling the wishes recorded in a will.
1. What is probate?
The process of carrying out the wishes in someone’s will is known as ‘probate’ and it often includes an official procedure (known as applying for a grant of probate) in which a court agrees that the person named to act as ‘executor’ is legally responsible for handling the deceased person’s affairs.
Any assets jointly-owned with a husband or wife (or indeed any other family member) will automatically pass directly to the surviving co-owner, if owned in a certain way (a joint tenancy). In these circumstances, it could be that a grant of probate is not required. However, this usually depends on the value of the jointly-owned asset and whether any inheritance tax is going to be due. It is also possible to own a house in joint names that does not automatically pass to the surviving co-owner (a tenancy in common) and in that situation, a grant of probate will usually be needed.
There may be different actions to take if you are an executor to someone who was single, widowed or owned their property or assets alone, in which case the executor will be responsible for either selling (or transferring to the named beneficiaries) their belongings, assets or property (their ‘estate’) in accordance with the will.
Every situation is different so it’s best to talk to us and we can advise you on what needs to happen including whether a grant of probate is going to be needed.
2. Immediate priorities
In the first few days:
- Make sure the home and possessions of the person who has died are secure, including the return of any personal belongings from hospital.
- Within five days, it’s necessary to take the medical certificate stating the cause of death to the registry office local to the deceased person’s home. They will issue a certified copy death certificate.
- Try to find a copy of the will (it may have been filed at home, with a lawyer or bank) and check whether it includes their personal wishes relating to the funeral.
- Begin talking to the undertakers about how to bring about your loved one’s funeral wishes.
- You can call us if you have questions about the legal process, but (except for making a note of any wishes about the funeral) there’s no need to worry about the will straight away.
3. First stage financial matters
It can feel like a big responsibility to sort out someone else’s financial matters after their death. Experienced lawyers can steer you through the process, but these are some of the first things to do.
In the first week or two:
- Locate relevant insurance documents (home and life insurance) and inform them of the death. This is particularly important if the property will be left empty, which may affect the cover that’s in place.
- Inform all banks where any current account, savings, mortgage or loans were held. It is normal practice for the bank to freeze the deceased person’s account as soon as they are notified. However, so long as there are sufficient funds in the account, the bank will release money to cover funeral costs.
4. Beginning the legal process
If you can’t find a copy of the will but you’re sure there is one, don’t panic. It’s not uncommon for people to call local legal practices to enquire if a will is being held for the person who has died. You may also search Certainty, the name for the national will register, online https://www.nationalwillregister.co.uk/ or call their helpline 0330 100 3660.
When you look at a copy of the will, you may see the name of the legal practice or will-writer that had written it and holds the original document. Or it may be clear that it was homemade. Whatever the case, if you are an executor then any regulated law firm can act for you. If a solicitor is named as an executor, then it may make practical sense for their firm to act for you. However, you may choose to ask a lawyer you know or that has been recommended to you, even if they didn’t write the will.
Some firms, like BPE, offer options for you to choose how much help you’d like. All legal practices are obliged to tell you how they charge for these services and give you an indication of the likely costs before you begin.
In the first two or three weeks:
- Come and meet us, so that we can understand your situation, explain how we can help, and outline our fees and any other ‘external’ costs you should be aware of. We can’t always give you an exact price for the whole process because sometimes complexities are uncovered which take longer to resolve, but we’ll always keep you informed and let you know how fees may be affected. There’s no obligation to appoint us, and if you decide not to proceed with our help it’s unlikely you’ll be charged for this first meeting. (An exception would be if one of us is an executor, in which case we would continue to be involved in the process.)
- If you decide to go ahead we’ll send you a letter laying out what level of support you’ve agreed to, the work we’ll do, and an estimate of the fees you’ll be charged. Once you have confirmed your agreement, we’ll get to work on your behalf.
- We will provide you with a ‘checklist’ of any information that you need to gather and pass to us.
Over the following weeks:
- In many cases, it will be necessary to apply to the court for a ‘grant of probate’ so that you can lawfully carry out your role as executor. We can handle this process for you.
- The role of your lawyer may include the completion of HMRC forms relating to inheritance tax, or you may choose to complete the forms yourself. Everything in the estate must be valued (all property, investments, savings, belongings) in order to calculate how much inheritance tax is owed, if any.
- A grant of probate will not be given until some level of inheritance tax has been paid, so it’s important to address these two tasks at the same time.
- Once again, the deceased person’s bank will release funds to pay the tax due.
5. Weighing up your choices
It’s quite natural for each person to feel differently about the prospect of being the executor of a will, particularly if it’s for the first time and they were close to the person who has died.
Our advice is to tackle the few really important matters that need addressing in the first few days, then give yourself a little time to think about some of the following questions:
- How much time do you have available, realistically, over the coming weeks and months?
- How comfortable do you feel handling paperwork and processes, including tax forms?
- Is it your impression that the personal affairs of the deceased person were well organised, and will be straight forward to sort out?
- Is there someone among your family or friends that can help you? Perhaps they have been an executor previously?
Thinking about these questions may help you to decide how much, or how little, help you’d like from experienced solicitors like BPE. Our team are experts, accustomed to dealing with all sorts of wills from the simple to the complex. In every case, we promise to work diligently, carefully, in a timely manner and with empathy.
Read about our flexible options for providing different levels of support on our website https://www.bpe.co.uk/services/need/services-for-you/wills-trusts-probate/probate/
Please call 01242 224433 if you’d like to arrange to come and meet us.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.