Losing a loved one is something none of us find easy to face. Here is a practical guide to the things to be dealt with when we do lose someone close to us.
Registering the death
When a person dies in England or Wales it is necessary for their death to be registered with the Registrar of Births, Marriages and Deaths within five days. This should be done in the district where the death occurred. You can arrange an appointment to see the Registrar by telephoning 0300 200 1002 (for deaths in Surrey).
Once the death has been registered you will be handed a certificate giving permission for the body to be buried, or for an application for cremation to be made which you will need to pass to the funeral director. You will also be given a certificate confirming that the death has been registered. It is advisable to purchase a couple of death certificates as these will be required later on.
Arranging the funeral
Most people choose to instruct a funeral director to guide them through this process and to make the necessary arrangements for them. You will need to decide whether to have the body buried or cremated and whether to have a religious or non-religious service. If the person who has died left a Will, this may indicate any particular wishes they had concerning their funeral. Similarly, some people pay for their funerals before they die through a pre-arranged funeral scheme and this may also set out their wishes.
The funeral director will be able to provide you with an estimate of their costs and also of any other expenses they anticipate (eg cremation fees). It is important that you satisfy yourself that the person who died had enough money to cover these to avoid becoming personally responsible for them.
Dealing with the deceased’s estate
It will be necessary to notify many people of the person’s death and this can seem very daunting. Whilst it is important to ensure that family and friends are advised before the funeral takes place, it is not usually necessary to notify companies (asset holders or creditors) immediately. It is often easier to allow yourself time to deal with the practical and emotional issues before the funeral and then tackle the financial matters afterwards.
Is there a Will? What happens if there isn’t?
It is always important to check whether the person who has died left a will. A will is a legally binding document drawn up by someone who wants to be sure about what will happen to their money and property after death. The will should include details of the person who is to be responsible for administering (sorting out) the estate (the executor) and will also show which people are to receive any money or property (the beneficiaries). The role of an executor is to collect in the assets, settle any debts and then pay the money to the beneficiaries.
If a person dies without a will they are said to have died intestate. In these circumstances, there are laws stating which family members are entitled to benefit and the extent to which they are entitled to benefit. These laws also set out the order in which family members are entitled to take responsibility for administering the estate (the personal representatives).
Is it necessary to have a lawyer to administer an estate?
There is no legal requirement that a lawyer needs to be involved in the administration of an estate. Many people choose to deal with the administration without legal support and useful guidance is available on the legal process from any Probate Registry or on their website (www.hmcourts-service.gov.uk).
Administering an estate can be time consuming and comes at an emotionally difficult time. A lawyer will be able to relieve you of this burden and may be particularly useful in situations of family conflict, where the person has died intestate or insolvent or where you simply do not feel able or willing to take on the duties involved.
What is involved in administering an estate?
The first step is to establish exactly what assets and liabilities the person who has died had and to obtain an accurate valuation for these. This can be done by writing to each of the companies concerned. All of this information will be vital (except for very small estates), and you will need to provide this information to HM Revenue & Customs for inheritance tax purposes.
When is Inheritance Tax payable?
To establish if there is any Inheritance Tax (IHT) payable as a result of a person’s death, it is necessary for every item in the estate to be listed and all liabilities deducted. However, it is not just the assets they own when they die that need to be considered. Gifts made by the person before they died may also be liable to IHT, as may certain trusts.
Every person domiciled in England and Wales is allowed an IHT free amount on death of £325,000 (tax year 2011/12). The estate value may be reduced if other exemptions and reliefs from IHT apply.
Detailed information (and IHT forms) are available at www.hmrc.gov.uk
Typically it is the executors/personal representatives responsibility to pay the IHT from the estate. There are however some rare occasions when the IHT is payable by someone else. IHT usually has to be paid before probate is granted.
The probate application
There are two ways of getting a grant of probate– in person or by using a lawyer.
Once you have established details of the estate you will be in a position to apply for probate.
If you would like to apply for probate in person you need to complete a probate application form, along with an IHT form. These are available from the Probate Registry and HMRC (see above).
Once these have been completed you need to send the forms to the Probate Registry. They will examine your application and either raise questions or confirm the application is fine. Once the application is ‘acceptable’ you will be invited to an interview at one of the Probate Registries. After the interview you will either be advised that there are more questions to be answered before probate is granted, that it is not possible to grant probate or that everything is in order and probate will be granted.
If you ask a lawyer to apply for probate they can establish the value of the estate, manage letters from companies where assets and liabilities are held, complete the IHT forms and probate application for you. Solicitors can make probate applications by post so all you will need to do is check the completed application and swear/sign the forms. Any queries the Probate Registry/HMRC may raise, your lawyer will deal with.
Collecting assets/paying debts
Once probate is granted liabilities will need to be repaid and assets dealt with. Every company has different requirements/forms that need filling. If there is a property the ownership may need to be transferred at Land Registry.
Particular care needs to be taken if the estate is, or appears to be, insolvent as there are legal rules as to the order in which the debts need to be paid.
Distributing the estate
Once all debts have been settled and tax paid distributions to beneficiaries can be made. There is a priority as to the order that gifts in wills need to be paid. There may also be age limits for the beneficiaries to inherit.
If there is no age limit in the will or there is no will and person has died intestate, then the age at which a person can take responsibility for their inheritance is 18. If a beneficiary is below that age the money will need to be held by the trustees of the will, the personal representatives or by the beneficiary’s parent or guardian. These people should take investment advice and hold the money until the beneficiary has reached the age to inherit it.
There may be a specific age in the will eg 21 and if so, money can’t be paid to that person until their 21st birthday.
Executors or personal representatives will need to produce a full set of accounts for beneficiaries, showing the cash flow of the estate (money in and out), since the estate was valued at the date of death. They will also have to show the distributions to the beneficiaries as well as accounting for all gains, income and losses which have arisen whilst they have been administering the estate.
What difficulties might be encountered?
Various complications can occur when administering an estate. The will may not be valid or it may be unclear. There may be beneficiaries or executors who lack the mental capacity to be making decisions. A family dispute may be involved or it may be appropriate to vary the terms of the will. Paying out inheritances to minors needs to be done correctly and inline with any stipulations in the will and the law. A solicitor can help you with all these complications and provide objective advice where emotions with family members may interfere/cloud judgments. Probate solicitors specialise in estates, and any complications that arise.
What might it cost to administer an estate?
Solicitors fees for administering an estate can be paid directly from the estate. Charges vary from estate to estate– and often depend on the complexity. No two estates are the same, and it’s important to bear this in mind. It’s often difficult for solicitors to give an accurate costs estimate up front, so solicitors usually give an estimate at the outset based on the time they anticipate it will take to carry out the work. Costs can vary between solicitors and you should compare the basis upon which you will be charged first. Costs should not be the only consideration when choosing a solicitor. It’s important to find one who is approachable and friendly.
Solicitors aren’t the only professionals who administer estates. Some banks administer estates and obtain probate. Their fees are often a lot higher than solicitors. Will writers also offer probate services, many are unregulated so the standards and service vary from company to company. Always check that they have indemnity insurance in case anything goes wrong.
It is worth remembering that excellent, professional service is worth paying for.
If you are struggling with your bereavement or feel you need help, Cruse is a bereavement support charity. They aim to help anyone affected by a bereavement to cope with their grief and loss.
They provide free care to people who have suffered a bereavement and support and help to those looking after them.
Cruse provides a helpline, along with face to face support and practical advice in branches across England, Wales and Northern Ireland. They also have comprehensive information on their website (www.crusebereavementcare.org.uk) and their helpline number is 0845 477 9400.