- Contested Probate Solicitors
- Valid Will Requirements
- Disputing A Will
- Disputed Probate
- Caveats And Injunctions
- Grant Of Probate Explained
- Executors Duties
- Letters Of Administration
- Distribution With No Will
- Claims For Dependents
- Cut Out Of Will
- How To Contest A Will
- Contentious Will
GRANT OF PROBATE SOLICITOR - DUTY OF EXECUTORS
In order to fulfill their legal duties, the person named as executor in a will must first obtain a Grant of Probate from the Probate Registry, which is a division of the High Court of Justice. The Grant of Probate vests the executor with the authority to collect and account for the deceased’s assets. It also grants the executor the power to distribute the assets to the beneficiaries of the will, be it specific gifts or money from the liquidation of the estate’s assets. The executor’s role in probate is of paramount importance due to the amount of personal responsibility. For that reason, many executors opt to employ a solicitor to act on their behalf and carry out their duties.
A 'Grant of Probate' is a document issued by the Probate Office which is part of the High Court of Justice in the United Kingdom which confirms the authority of up to four individual people to act in the estate of a deceased person. The people who are authorised by the will to deal with the assets of the estate are called executors and their job is to gather in the assets of the estate and to distribute them to the beneficiaries after payment of the debts and liabilities, which includes all taxes due. Not all wills appoint an executor and those that don't become the subject of a Grant of Letters of Administration rather than a Grant of Probate. Most assets will be liquidated by the executor(s) which means they will be sold and the cash that is generated will be held in a trustee bank account or a solicitors client account until the time comes to distribute the assets in accordance with the wishes of the deceased person as outlined in the terms of the will. The authority of the executors is derived from the will and an executor may inter-meddle in the estate from the moment of death however any dealings by an executor must be in accordance with the law. An executor is also personally liable for financial losses to the beneficiaries of which the executor may be one. The purpose of a Grant of Probate is to prove to third parties who may hold assets belonging to the deceased that the executor does have legal authority and is entitled by law to deal with the assets. In most cases a third party will not co-operate with the executor until they have seen the Grant of Probate or a copy of the Grant of Probate that has been sealed by the Probate Office. In the case of very small sums of money held by a third party there may be no need for the beneficiaries to obtain a Grant of Probate and the monies may be simply released upon sight of a will or to the spouse or next of kin. A Grant of Probate is of no effect in the case of most jointly held real property which passes automatically to the other joint owners at the moment of death.
Obtaining a Grant of Probate
The first step in obtaining a Grant of Probate is for the person named as executor in the will to make an initial valuation of the deceased’s assets. The proposed executor must also calculate the total amount of liabilities, including inheritance tax if applicable. Only after the valuation has been performed can the proposed executor submit an application for a Grant of Probate with the Probate Registry. Accompanying the application must be a sworn affidavit which outlines the assets and value of the estate. The application must also include the original will.
A copy of all the documents outlined above is also submitted to the Capital Taxes Office. The Capital Taxes Office considers the content of the documents. If the Office is satisfied, it will approve the issue of the Grant of Probate made by the Registry.
Once all of the requisite approvals have been obtained, the executor will then begin the work of managing the assets. The first step is to gather all of the deceased’s assets and use whatever amount is necessary to pay any liabilities. After all of the liabilities have been met, the executor will then distribute the assets of the estate according to the instructions in the will.
Upon receiving notification of the content of a will, those who have been appointed as executors are expected to preserve and look after the assets of the deceased person on behalf of the beneficiaries which may involve taking possession of valuable physical items or insuring real property that is part of the estate. Any executors that do not wish to become involved can decline the appointment in favour of any other executors who are usually beneficiaries. The first duty of an executor is to obtain a gross value of the estate and an estimate of all liabilities to come up with the net value which will be needed in order to apply for the Grant of Probate which is carried out by completion of standard forms supplied by the Registry. It is necessary to value assets and liabilities in order for the Capital Taxes Office to calculate any tax liability. The forms are lodged with the Registry together with the original will and after swearing an affidavit and paying any tax due, the court will appoint the executor by way of a sealed court document known as the Grant of Probate which will enable to executor to gather in and liquidate the assets. Once all liabilities have been discharged the balance may then be distributed in accordance with the terms of the will provided that no third party has made a court application to challenge the will or probate and no application for support has been received by potential dependants that were not beneficiaries under the will.
Requirements of a Valid Will
The person named as executor must prove that
the will is valid in order to obtain a Grant
of Probate. Under certain circumstances, a
third party can challenge the will or the
grant of probate in a court of law. Should the
will not satisfy all of the following
requirements outlined below, it can be
contested by a potential beneficiary:
~ the person making the will must be age 18 years or older
~ the person making the will must not be under any undue influence
~ the person making the will must fully understand the meaning of the document and must be of sound mind
~ the document must be signed by two independent witnesses who observed the testator signing the will.
~ neither of the witnesses should be beneficiaries or they will forfeit the inheritances made to them in the will
Challenges to the Will
An executors solicitor may apply to the High Court of Justice to approve a copy of the will if the original is lost. The validity of the copy can be challenged by someone who was a beneficiary of an earlier will but not of the will being brought before the court. Dependants, such as a partner, minor or disabled person, are entitled to support after the death of the individual who had been previously supporting them. Should a person fail to make adequate provisions for the support of a dependant in their will, that dependant can take legal action in the High Court of Justice to obtain their share of the deceased’s estate.
For advice on fulfilling the duties of executor or for help with cases contesting the validity of a will just use the contact form or phone us on our helpline or email our offices. One of our probate solicitors will provide you with a consultation at no cost to you and with no further obligations.