DIY PROBATE OVERVIEW

Any person who is a named Executor in the Will, aged over 18, in sound mind and not bankrupt can obtain probate in England and Wales.

Below is a summary of the steps required to complete a DIY Probate (this approach, whilst the least costly, does not include the benefits the Assisted DIY Probate Service can provide).

1. Obtain the original Will, identify the Executors and what do do if there is no Will
2. Notify interested parties of the deceased’s death
3. Value the deceased person’s estate
4. Complete the inheritance tax requirements
5. Complete the probate application
6. Check the grant of probate
7. Place Legal Notices (optional step)
8. Register the grant of probate with interested parties
9. Close banks accounts, sell investments & transfer ownership of property
10. Settle debts, liabilities and expenses
11. Notify beneficiaries
12. Prepare estate accounts
13. Distribute the residuary estate

CHECKLIST – INITIAL ACTIONS AFTER A DEATH

• Establish whether the deceased had any wishes regarding body or organ donation. Check to see if the deceased carried a donor card or has made their wishes in this area clear in their Will.
• Return TV / driving licenses and season tickets to the appropriate organisations.
• Sell or transfer ownership of cars and other vehicles. Selling a vehicle does not require probate, and it is acceptable for the executor to sign the registration document/logbook when selling the vehicle.
• Return the deceased’s passport to the passport office.
• Ensure any pets are cared for. If the deceased has left a Will, it may contain instructions for the care of their pets following their death.
• Ensure that the deceased’s house and its contents are secure.
• Notify the home insurance provider of the death and ensure cover remains in place. If there is no insurance cover in place, you must arrange the best cover you can obtain.
• Arrange the redirection of post. Royal Mail will arrange the delivery of mail to an alternative address. This can be arranged via a mail redirection form, available from main Post Offices.
• Avoid direct mail being sent to the deceased by registering their death on the bereavement register: https://www.thebereavementregister.org.uk/
• Remove any valuable, portable items from their property and store them in a secure location, ensuring adequate insurance cover is obtained.
• Return any items that are on hire purchase agreements.
• Protect the deceased’s property from the risk of burst pipes during winter by ensuring the central heating is set to come on during the day or night.
• Alternatively, you can drain and turn off the water and central heating systems.
• Cancel any regular deliveries such as milk and newspapers. Open a Bank Account in the name(s) of the executor(s) to handle all estate money
• It is advisable to open a bank account solely for the deceased’s estate. This way you can keep a record of payments made and received.
• By opening an account for the sole purpose of administration of the estate, you will ensure that all transactions are kept separate from any of your own financial dealings. Estate monies must never be intermingled with personal or other funds.
• It is not possible to use the deceased’s own bank account for administering the estate. When notified of the death of the deceased, the bank will freeze their account.
• You could choose to open an account with the same institution that holds the deceased’s account. However, you may prefer to open an account with your own bank or building society. This may help avoid a lengthy application process.
• To open a new account, it is best to contact your chosen institution to explain that you would like to open an account and that you are acting as Executor. They will be able to advise on the most suitable account for this purpose, as well as all application procedures.

 

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Downloads & Links

• Assisted DIY Probate Service
• Flowchart of key stages

LOCATE AND CHECK THE ORIGINAL WILL

Locating the Will

It is essential that the original Will is located, as you’ll need to send the original Will with your probate application – you cannot use a photocopy. The probate registry will keep the Will and it’ll become a public record.

Start by looking through the personal paperwork of the deceased to try and locate the whereabouts of the original Will. If this isn’t successful try:

• local solicitors, Will-writing firms
• the deceased’s bank(s).
• conducting an online search, through www.certainty.co.uk. 
• The national probate registry in Newcastle https://www.find-court-tribunal.service.gov.uk/courts/newcastle-district-probate-registry – you’ll need the death certificate and evidence you’re the executor

If it is thought that the deceased left a Will with a solicitor but it cannot be located, place a notice with the Law Society Gazette: www.lawgazette.co.uk (0207 320 5841). If the original firm of solicitors that held the will are no longer in business, contact the Solicitors Regulation Authority on 0370 606 2555 to establish where the firm’s documents and records are now stored.

If the original Will is lost, you may be able to apply for probate using form PA13.

Checking the Will

The Probate Registry conduct a thorough check of the Will to ensure it complies with all of the various legal requirements. You should be aware of these factors and check the Will thoroughly before applying for the Grant of Probate.

These are the main factors to consider:

1. Legal capacity

The deceased (known as the ‘testator’ in reference to their Will) must have had full understanding of the Will and its implications, the extent of their estate, and the moral obligations owed to potential beneficiaries at the time of their writing it.

The deceased must have understood the effects of their Will without being affected by any mental disorder.

The key point is that the testator had the required legal capacity at the time of making the Will.

For example, some people who suffer from Alzheimer’s disease have moments of lucidity. If the Will was written during one of these periods then it is possible they had the required legal capacity. If, however, the Will was written at a time when their mental capacity was significantly reduced, the requirements for full legal capacity would probably not have been met.

1. Free of duress

It is also essential that the testator was acting within his or her own free will and was not under the influence or duress of any other person.

1. Legal Requirements

The Will must have been:

• Produced in writing; typed, handwritten or printed.

• Signed by the testator (or somebody in their presence if they are incapable, as long as the person signing the Will is doing so at the testator’s request).
• Witnessed by two or more persons present at the same time as each other, who are not named as beneficiaries in the Will.
• Signed by the witnesses within the testator’s presence.

Signatures should be accompanied by the following (or very similar) wording: ‘Signed by the Testator in our presence and attested by us in the presence of the Testator and of each other.’

Signatures of the testator and the witnesses should appear at the end of the Will.

Any wishes and instructions contained following the signatures can suggest that they were added after the Will was signed. This may lead to the Probate Registry raising queries and seeking further proof by way of an affidavit.

1. Void Will Bequests

Be mindful of the following circumstances and seek legal advice where appropriate:

• Bequests to witnesses or their spouse/partner. The witnesses to a Will must be independent. Any bequest made to a witness or their spouse/partner is void, unless there are two further disinterested witnesses to the Will. This will only affect the part of the Will pertaining to the witness or their spouse/partner.
• Bequests contrary to public policy. This can be complicated and vary over time, according to current policy.

 

Possible examples of this include:

• Conditions which weaken the family unit or institution of marriage, or which interfere with a beneficiary’s choice of religion. For example, a bequest with a condition that a son leaves their partner or converts to a different religion in order to receive their inheritance.
• Conditions contrary to the legal nature of a property. For example, a condition stating that a house cannot be sold or should be boarded up and left unused.
• Gifts which break the rules against perpetuities and accumulations

An example of this would be where the income on an asset is accumulated for over 21 years before it is distributed to the beneficiary.

• Irreconcilable bequests, e.g. where the same item has been bequeathed to two different individuals.
• Insufficient assets are available to pay all debts and/or legacies.
• Bequests to people who have died before the testator, or to organisations that no longer exist.
• Bequests of items that no longer exist.
• Gifts of other people’s property.

If any of the above situations apply, seek professional legal advice.

 

Varying the Will

While most people are aware that a person can alter the terms of their own Will during their lifetime, it is not common knowledge that the same can be done to a valid Will, by the beneficiaries of the estate, after the death of the deceased.

Another situation where this is possible is in cases where a beneficiary dies and their own personal representative can disclaim or vary their inheritance, as long as they have the consent of those set to inherit from the beneficiary’s estate.

Reasons for variation

There are many reasons why variation may take place, including the following:

• Circumstances changing after a Will has been made, for example the deceased having married or entered a registered civil partnership.
• Personal representatives and beneficiaries may decide to settle problems created by unclear instructions left in a Will out of court, by mutual agreement, which must be detailed in writing.
• Beneficiaries may wish to provide for somebody they consider to have been overlooked, or wealthy beneficiaries may wish to redirect bequests made to themselves to their children or grandchildren.

The most common reason of all for variations being made to a Will is to ensure the least amount of tax is incurred.

Changes to the Will are achieved by drafting a legal document called a ‘Deed of Variation’. If you need a Deed of Variation or have any queries about a Deed of Variation please email support support@berkeleyweston.co.uk

WHAT TO DO IF THERE ISN’T A WILL

If someone dies without leaving a Will it creates a legal situation called ‘intestacy’. In this situation the law states who may administer the estate and who may benefit from it.

‘Intestacy’ can arise in the following circumstances:

• A person has died without leaving a Will.
• The Will of the deceased is invalid, e.g. it was not witnessed.
• The Will was revoked prior to death.
• The named beneficiary or beneficiaries of the Will died before or alongside the deceased.

There is also a situation known as ‘Partial Intestacy’, which means that the Will left by the deceased did not account for the whole of their estate. In this case, the part(s) of the estate not accounted for will be subject to the laws of Intestacy.

Action Required: Obtain ‘Letters of Administration’

The deceased person’s legal next of kin (see over) shall need to obtain a ‘Grant of Letters of Administration’ to deal with the deceased person’s assets.

Letters of Administration is the equivalent of probate where the deceased did not leave a Will. The title is slightly misleading in that it is actually a legal document rather than “letters” in the common use of the word.

The application paperwork to obtain Letters of Administration is identical to that involved in obtaining Probate. Follow the steps as set out in sections IX and X of this guide.

Alternatively, use the Assisted DIY Probate Service to get the application completed by an expert on your behalf. When completing the Confidential Information Form write a note in question 12 ‘Any special comments or instructions’ that there isn’t a Will’.

Who should administer the estate if there isn’t a Will?

There are legal rules to help identify the next of kin responsible for administering a deceased person’s estate where there is no Will. The order of priority is listed overleaf:

IDENTIFYING THE LEGAL NEXT OF KIN

Only certain people are legally allowed to apply for a Letter of Administration. There is a strict legal ‘pecking order’ of who can apply, based on their relation to the deceased person.

To identify that person move down the list below. The person(s) that appears highest up the list is responsible for applying for the Letter of Administration:

1. The husband, wife or registered civil partner (not unmarried or “common law” partners).

2. Children. (If the deceased was unmarried or divorced and had children under

the age of 18, the surviving parent of the children is responsible for dealing with the Letter of Administration requirements).

3. Grandchildren.

4. Parents.

5. Brothers and sisters.

6. The children of brothers and sisters (i.e. nieces/nephews).

7. Brothers and sisters of the half-blood (they have just one parent in common) of the deceased.

8. Grandparents.

9. Uncles and aunts.

WHO INHERITS WHAT, WHEN THERE ISN’T A WILL

The law (Section 46 of the Administration of Estates Act 1925) sets out who inherits what when someone dies without leaving a Will – called the “Intestacy Rules”

 

WELCOME TO STEP 1

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Downloads & Links

• Example Will showing highlighting executors
• The Assisted DIY Probate Service

NOTIFY INTERESTED PARTIES

Checklist – People and organisations to notify of the death:

• The family doctor.
• The police, if the death was unexpected or did not happen within a hospital. The deceased’s employer or pension provider.
• Department of Work and Pensions, if the deceased received a state pension or any other state benefits. You can now do this online at the following website:

https://www.gov.uk/tell-us-once

Anybody to whom the deceased had power of attorney and any deputy appointed by the Court of Protection.

Financial companies that the deceased had a relationship with e.g. bank and building societies, share registrars, insurance companies, ISA providers and National Savings & Investments.

Creditors such as mortgage provider, credit cards, loans etc. Local Authority Council Tax department.

Utility suppliers.

Vehicle & home insurers. Ensure any conditions imposed by them are strictly observed.

Any other interested parties such as Social Services, Care Providers and HM Revenue & Customs.

The most reliable, albeit slowest, way to notify these organisation is by sending a letter enclosing the death certificate. Alternatively, many major financial organisations such as high street banks offer a facility to report a death online. A simple internet search will reveal whether this is an option, or whether you’ll need to resort to old fashioned postal notification.

I wouldn’t recommend telephoning organisations to notify them of the death. You’ll waste hours trying to speak to the right person, only to be told they are not allowed to give the information out over the phone due to Data Protection Rules. If you are lucky enough to find someone to speak to, they will still require you to send the death certificate (and possibly a copy of the Will) in the post anyway, so simply save yourself the bother of telephoning in the first place!

For your convenience, and to save you the time and effort, I have provided you with pre-written “fill in the blanks” template letters in the resources section of your DIY Probate Pack.

You’ll also find contact details for most of the common financial organisations for you to use.

Here’s what a notification letter should look like (this particular example is to a bank):

BANK NAME YOUR NAME

BANK ADDRESS YOUR ADDRESS

[today’s date]

Dear Sir/Madam

Re: The Estate of [NAME OF DECEASED] deceased Account Number: [ACCOUNT NUMBER(S)]

I am the Executor of the above named deceased, who died on [DATE]. Please find enclosed the death certificate for you to note and return.

In respect of the above account(s) would you please take the following actions: ALL ACCOUNTS (including Joint Accounts)

1. Freeze the account(s).
2. Advise me of the balance(s) at the date of death and, if applicable, provide a separate note of net interest accrued but unpaid as at the date of death.
3. If applicable, provide me with a copy of any direct debit and standing order instructions, and confirm to me in writing that these have been cancelled as at date of death.
4. Please supply details of interest earned during the last two tax years, and also the period 6th April to the date of death for all accounts, including those in joint names.
5. Advise whether the deceased holds any other accounts with you and, if so, provide me with the above information for these accounts.
6. Confirm whether you hold any items in your safe-keeping facility, and advise me how I can gain access to these items.
7. Forward to me any documentation which needs to be completed to enable me to close the account once I have a Grant of Probate in the estate.
8. Direct all future correspondence relating to this account, and any other accounts the deceased holds with you, to me at the above address.

JOINT ACCOUNTS ONLY

Please let me know the date of opening and the names and addresses of the joint owners. Please confirm who received the interest and who received the benefit of any withdrawals.

The balances on these accounts should be transferred into the survivors’ names, and they should be informed. No further transactions for the Deceased should pass through such accounts.

SECURITIES

Please let me have a list of all you hold, photocopies of any insurance policies and of the most recent Conveyance, Assent or Declaration of Trust in any set of Title Deeds. All building society account numbers, policy numbers and savings certificate and premium bonds holders numbers should please be specified. This information will avoid a follow up enquiry by me. Please advise your requirements to release any documents.

MORTGAGES

Please let me have full details of the property charged, details of the mortgage account number, details of any policies assigned, the capital balance and accrued interest outstanding at date of death and the daily rate at which interest accrues.

With regard to endowment mortgages, please supply full details of all policies concerned, stating whether these have been formally assigned or not, and whether you are claiming the proceeds from the insurance company.

Please confirm if you are holding the deeds to the property. INSURANCE

Please let me have details of any building/contents insurance cover relating to the property charged and confirmation that these will not be allowed to lapse if the mortgage is repaid.

PAYMENT OF INHERITANCE TAX AND COURT FEES

Please confirm the circumstances in which you would be prepared to advance funds from the Deceased’s account(s) for the payment of Inheritance Tax and Court fees before registration of the Grant of Representation with you. Please confirm whether the funds would be released by cheque or under the Inland Revenue Inheritance Tax Direct Payment Scheme. Please send me all necessary withdrawal and other forms for this purpose.

If you are not prepared to advance funds from the account(s), please confirm whether you are prepared to offer a loan to pay such and, if so, the amount of the arrangement fee and rate of interest charged. A certificate of loan interest charged will be required on repayment of the loan for income tax purposes.

Thank you for your assistance in this matter.

Yours faithfully

[YOUR NAME]

 

WELCOME TO STEP 2

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Downloads & Links

• Tell Us Once
• Bank / Building Society – initial letter
• Building insurance
• Council Tax
• Credit Card
• DWP Jobcentre Plus
• Employer
• HMRC – income tax
• ISA / PEP manager
• Life Insurance
• Mortgage Company
• NS&I – initial letter
• Pension Provider
• Share Registrar
• Useful Contacts
• Utility Providers
• Click download for your step-by-step instructions

VALUE THE DECEASED PERSON’S ESTATE

• Begin by making a list of everything the deceased owned which can be turned into a cash value – even if the sale of an asset is not intended.
• Both solely-owned and jointly-owned assets need to be valued and recorded.
• Once you have obtained the value of an asset record the details on the Assets and Liabilities Form, included in the resources section.
• Record whether an asset was owned by the deceased person in his/her sole name or jointly with someone else (e.g. a joint bank account).
• The type of assets that you should establish a value for are as follows:
• Bank and building society accounts Shares
• Life insurance Endowment policies
• Employer benefits, e.g. death in service benefit Property and land owned by the deceased Furniture and other personal effects Investments such as ISAs and unit trusts Investment bonds
• Motor vehicles Boats, and Caravans
• Art
• Jewellery Business assets
• National Savings & Investments products, e.g. Premium Bonds Interest in trusts
• It is important to be sure that the items included on the list are only those legally owned by the deceased and not, for example, hire purchase goods.
• You will get the valuation figures you’ll need from financial organisations in response to your initial notification of death letter (covered in section VI).

How to establish the value of an asset for probate and inheritance tax purposes

It is essential to find out the market value (realistic selling price) of all the assets owned by the deceased at the date of death.

Some assets may require detailed enquiries, and you may need to employ a professional. For example, HM Revenue & Customs (HMRC) recommend that you use a professional (surveyor or estate agent) for establishing the Probate Value of land and buildings where you need to complete an inheritance tax account (IHT400)

Property and land

Firstly, you need to identify whether any property owned by the deceased person is owned in his/her sole name, or jointly with someone else.

If the property is owned jointly, you will need to find out whether it is owned as either:

1. Beneficial joint tenants own the property jointly, so that on the death of the first to die the property passes to the surviving joint owner under the survivorship laws. In this case the deceased person’s share of the property does not form part of the estate and cannot be left in a Will.

OR

2. Tenants in Common each own a defined share (e.g. 50% each) of the property, and when one of them dies their share is included in their estate. Ownership passes to the person(s) named in the Will.

Action Required:

You can find out whether a property is owned as beneficial joint tenants or tenants in common online by downloading the Title Register from the Land Registry website at:

http://www.landregistry.gov.uk/public/property-ownership

Download and check the “title register” (there is a small fee, currently £3). Find the “proprietorship register” section and look for the following clause:

‘RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.

This clause indicates that the property is owned as tenants in common. In short, this means that the deceased’s share of the property should pass in accordance with the Will.

If this clause isn’t present you can presume the property is owned as beneficial joint tenants in the absence of any evidence to the contrary.

Completion of this step is included for clients of the Assisted DIY Probate Service, administered by Berkeley Weston Ltd.

Note: This online service is only available for properties with registered title. This will become apparent when checking the Land Registry website. If the property has unregistered title you will need to locate the title deeds.

Don’t be tempted to skip this task – it is vitally important that you identify correctly how any property is legally owned. Failure to do so can result in errors with the inheritance tax return and a possible maladministration of the estate.

Valuing Property and Land

Scenario 1:

If the circumstances of the estate mean you aren’t required to submit an inheritance tax account (IHT400) to HMRC then you don’t have to get an estate agent to value the property. It is optional.

It is acceptable in this scenario to carry out your own research using property websites such as www.rightmove.co.uk or www.zoopla.co.uk to establish the market price of similar properties.

As long as you can provide a sound rationale for your valuation figure then that is sufficient.

It isn’t satisfactory to simply pluck a figure out of the air though, some research will be required!

The exception is if there are no comparable properties on the market presently, or sold recently, upon which to base your valuation, or if the value of the property or estate necessitates a full inheritance tax account using IHT400 (see scenario 2). In these circumstances it is advisable to get professional valuations in writing.

Scenario 2:

If a full inheritance tax account is required using form IHT400 then the property should be valued at the ‘open market value’ by getting at least two, preferably three, independent valuations from an estate agent or surveyor.

It is important obtain the ‘open market value’ figure in writing and not the ‘initial asking price’, which often used when a property is put on the market for sale. It is important that the surveyor or estate agent is notified of this requirement.

These written valuations should accompany the completed IHT400 inheritance tax return as supporting written evidence.

Life insurance and employer benefits

For life insurance policies and employer benefits such as ‘death in service’, enquire if they are held in trust, to be paid into the estate, or if the deceased nominated specific beneficiaries.

Bank/Building Society accounts

These are easy to value as the relevant organisation will confirm balances and values at the date of the deceased’s death in response to your initial ‘notification of death’ letter.

Shares

The Share Registrars should notify you of the number of shares the deceased owned in a particular company.

You will need to work out the share price at the date of death to work out the value of the shareholding. You can do this quickly and easily by conducting an internet search along the lines of “historical share price” followed by the company name. Click on the search results, enter the date of death and you should be presented with the share price for the given date.

Furniture and personal effects

If you need to complete a full inheritance tax account (IHT400) you will need to value house contents and personal effects. You don’t need to value “pots and pans”, but concentrate on items with a resale value.

You can research valuations yourself using online auction sites such as Ebay. Print and retain your research as proof.

If the prospect of this is too time-consuming and unappealing, consider using an auctioneer. They would also be able to organise a house clearance and auction of any of the deceased’s furniture and personal effects that have not been left in the Will, if required.

If you don’t need to complete a full inheritance tax account (IHT400), it is acceptable to use a “ball park” estimated figure.

Vehicles

It is possible obtain valuations of motor vehicles through checking online sites such as Parker’s Car Price Guide, What Car? and Autotrader. Ensure that you keep records of such valuations.

Probate is not required to sell a motor vehicle. The executor can sign the DVLA V5 document (sometimes called the “logbook”) and sell the vehicle at any time.

When you have the figures for all of the above assets, record them on your ‘Assets and Liabilities’ spreadsheet in the resources section.

Lost or Missing Assets

If assets and liabilities are not immediately obvious, it will be necessary to undertake a thorough search of the deceased’s home and locate any paperwork that may provide clues. It is advisable to ensure a reliable witness is present for such a search.

Paperwork may include bank and pension statements, and details of share dividends.

In addition to a physical search, a free service is available online

at www.mylostaccount.org.uk to establish details of any bank or building society accounts in the deceased’s name. However, you should be aware that this search could take a number of months to complete.

The Unclaimed Assets Register Service: www.uar.co.uk charges £25 to conduct a search for holdings of unit trusts, life insurance policies and pensions.

Check for unclaimed Premium Bond prizes online at www.nsandi.com.

The deceased person’s last tax return is a good source of financial information. This will list all of their income and will give you some idea as to the extent of the estate’s assets.

Contact people and organisations who may be able to provide other information. The deceased’s family, friends, business associates, accountants, solicitor, financial adviser, stockbrokers and banks may be able to help.

Identify any gifts made by the deceased

Identify and record any gifts that the deceased made which are not exempt from inheritance tax. See the section below on ‘Inheritance Tax exemptions and reliefs’.

In addition to gifts, you need to identify and record the following:

• Assets given away during the seven years before the death of the deceased.
• Assets given away at any time in which the deceased retained an interest. For example, gifting a house to a family member but continuing to live there rent free.

Deduct any Debts owed by the deceased

Establish the extent of any debts and liabilities owed by the deceased. Items to consider are:

• Outstanding mortgage balance(s)

• Unsecured lending, e.g. credit cards and personal loans

• Bank overdrafts

• Unpaid Income Tax

• Utility bills and Council Tax

• Funeral expenses

• Overpaid pension payments

• Care fees

• Money owed to family members

Make a list of these liabilities and debts on the Assets and Liabilities form on the next page (a copy is also enclosed in the resources section).

Keep a record of the valuation figures

Keep copies of all the paperwork you have for obtaining valuations, as you will need these to complete the Inheritance Tax and Probate forms.

Record the figures on the following pages, or alternatively use the ‘assets and liabilities’ spreadsheet in the resources part of the DIY Probate Pack.

 

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Downloads & Links

• Assets & Liabilities Form
• Rightmove
• Zoopla
• Search for land and property information
• Click download for your step-by-step instructions

A significant part of probate requires you to establish if there’s any Inheritance Tax to pay and complete the appropriate HMRC forms. To do this, you’ll need to have valued the estate of the person who’s died, as described in section VIII. Once you have established the value of the estate you’ll need to work out if there’s Inheritance Tax to pay, taking into account the various exemptions and reliefs as detailed below in conjunction with the official online checker tool at:

https://www.gov.uk/valuing-estate-of-someone-who-died/estimate-estate-value

Inheritance Tax exemptions and reliefs

On occasion, even if the deceased’s estate exceeds the threshold amount, it is possible to pass on assets without having to pay Inheritance Tax.

Examples of this are as follows:

• Husband/wife or registered civil partner exemptions. Inheritance Tax is not payable on assets that pass to a spouse. Please note this does not apply to common law partners.

• Charity exemptions. Any gifts made to a qualifying charity, either during the deceased’s lifetime or left in their Will, are exempt from Inheritance Tax.

• Potentially exempt transfers. If the deceased made a gift to a person seven years or more prior to their death then the gift is generally exempt from Inheritance Tax, no matter what the value of the gift was.

• Annual exemptions. The deceased was entitled to give up to £3000 away each year, either as one single gift or several adding up to this amount, without it incurring Inheritance Tax charges. It is also possible to use any unused amount of this allowance from the previous year.

• Small gift exemptions. Any number of gifts of up to £250, to separate individuals, can be made tax-free.

• Wedding and civil partnership gifts. Any gifts made to a person getting married or registering a civil partnership are tax-free, up to a set amount (which can be checked with HMRC).

• Business, woodland, Heritage and Farm Relief. If the deceased owned a business, farm, woodland or National Heritage property, their estate may benefit from some Inheritance Tax relief.

• Residence Nil Rate Band. The IHT Residence Nil Rate Band (RNRB) was introduced in April 2017. It is in addition to an individual’s own Nil Rate Band of £325,000, and conditional on the main residence being passed down to direct descendants (e.g. children, grandchildren).

The RNRB started at £100,000 and increased by £25,000 each tax year until 2020, as follows:

• £100,000 in 2017-2018
• £125,000 in 2018-2019
• £150,000 in 2019-2020
• £175,000 in 2020-2021

The RNRB can be claimed providing the following conditions are met:

• The deceased died on or after 6 April 2017
• The estate includes a residence owned by the deceased. Only one

residential property will qualify. A property which was never a
residence of the deceased e.g. a buy-to-let, cannot be nominated.

• The residence in the estate is inherited by the direct descendants of the deceased.

 

The RNRB will be transferable between spouses and civil partners on death.

For example, when combined with the full RNRB of £175,000 in 2020/21 this would provide a married couple with a possible £1,000,000 nil rate band if they left their estate to each other on the first death and then on the second death to their children.

The RNRB will be reduced by £1 for every £2 that the deceased’s net estate exceeds £2,000,000. This will mean that on its introduction there will be no RNRB available if the deceased holds assets of more than £2,200,000. This will rise as the RNRB rises.

The family home doesn’t need to be owned at death to qualify. For example, a person may have downsized o r sold their property to move into residential care. Downsizing or the disposal of the property has to have taken place after 8 July 2015.

To claim the transferable residence nil rate band refer to HMRC forms IHT400, IHT435 and IHT436 in the accompanying resources section.

For detailed notes about the residence nil rate band refer to the following webpage:

https://www.gov.uk/guidance/inheritance-tax-residence-nil-rate-band

 

If Inheritance Tax is due

You’ll need to give full details of the estate to HM Revenue and Customs if Inheritance Tax is due using form IHT400 and accompanying schedules. You can find these in the resources section of your DIY Probate Pack.

You must submit the form within 12 months of the person dying. You may have to pay a penalty if you miss the deadline or if you give inaccurate information.

If you need to change any figures on the form after you’ve submitted it you’ll need to fill in a corrective account form C4 and send it to HMRC.

Paying Inheritance Tax

If inheritance tax is due you’ll need to obtain a reference number from HMRC. You can do this online at: www.hmrc.gov.uk/inheritancetax/online.htm

The following information is required about the deceased:

• Full name
• Date of death
• Date of birth
• National Insurance number

Payment of Inheritance Tax is required either when you submit the form of account of the deceased’s estate to HMRC, or else six months from the last day of the month in which the deceased died. More information can be found at:

www.hmrc.gov.uk/inheritancetax/paying-iht/payment-deadlines.htm.

It is possible to pay the tax in ten equal annual instalments in respect of the following assets:

• Land and buildings, including agricultural land and property.
• Certain shares and securities.
• Net value of a business run for profit (this does not apply to the business assets).

However, if you sell the asset then you must pay the amount of tax due in full.

Finding the money to pay Inheritance Tax

If the deceased had enough funds in a bank, building society or National Savings & Investments account then you can request that the account-holding institution pays HMRC direct (using the Direct Payment Scheme – see form IHT423) or else sends you a cheque for the full amount, made payable to ‘HMRC’.

Where there are not sufficient funds in accounts to pay the Inheritance Tax due, you should be able to obtain a loan from a bank or building society. Any interest payable on this loan will be a liability of the estate of the deceased.

When to send full details of the estate’s value to HMRC using form IHT400

even if no tax is due

You’ll need to send full details of the estate, even if no tax is due, if the person who

died:

• gave away over £250,000 in the 7 years before they died (£150,000 if the person

died on or before 31 December 2021)

• gave gifts then continued to benefit from them in the 7 years before they died
• left an estate worth more than £3 million (more than £1 million if they died on or

before 31 December 2021)

• died on or before 31 December 2021 and had inherited part of the Inheritance Tax

 

threshold from a previous spouse or civil partner

• was ‘deemed domiciled’ in the UK
• had foreign assets worth more than £100,000
• was living permanently outside the UK when they died but had previously lived in

the UK

• had a life insurance policy that paid out to someone other than their spouse or civil

partner and also had an annuity

• had increased the value of a lump sum from a personal pension to be paid after their

death, while they were terminally ill or in poor health

• had agreed that property they’d given away during their lifetime would be part of

their estate rather than pay a pre-owned asset charge

If the estate includes trusts

You’ll need to complete a full account if the deceased:

• gave gifts that were paid into trusts
• held assets worth over £250,000 in trust (£150,000 if the person died on or before

31 December 2021)

• held more than one trust

You’ll also need to complete a full account if the deceased died on or after 1 January

2022 and assets held in trust passed to a surviving spouse, civil partner or charity and

the trust was worth:

• £1 million or more
• £250,000 or more after the amount passing to the surviving spouse, civil partner or

charity has been deducted

When you can apply for probate

Once you’ve sent your completed IHT400 form to HMRC, you need to wait 20 working days before you can apply for probate.

When full details are not needed – ‘excepted estates’

You do not have to give full details of an estate’s value if all of the following are true:

• the estate counts as an ‘excepted estate’
• there’s no Inheritance Tax to pay
• you’ve checked that none of the reasons under ‘when you need to send full details of

the estate’s value even if no tax is due’ apply

What counts as an excepted estate depends on whether the person died:

• on or after 1 January 2022
• on or before 31 December 2021

If the person died on or after 1 January 2022

An estate is usually an excepted estate if any of the following apply:

• its value is below the current Inheritance Tax threshold
• the estate is worth £650,000 or less and any unused threshold is being transferred

from a spouse or civil partner who died first

• the deceased left everything to a spouse or civil partner living in the UK or to a

qualifying charity and the estate is worth less than £3 million (search the charity register for registered UK charities)

• the deceased was living permanently outside the UK (a ‘foreign domiciliary’) when

 

they died and the value of their UK assets is under £150,000

If the person died on or before 31 December 2021

An estate is usually an excepted estate if any of the following apply:

• its value is below the Inheritance Tax threshold at the time the person died
• the deceased left everything to a surviving spouse or civil partner living in the UK

or to a qualifying charity and the estate is worth less than £1 million (search the

charity register for registered UK charities)

• the deceased was living permanently outside the UK (a ‘foreign domiciliary’) when

they died and the value of their UK assets is under £150,000

What to do if you’re dealing with an excepted estate – if the person died on

or after 1 January 2022

Firstly, check that you’re dealing with an excepted estate using the information detailed above and that you do not need to send full details of the estate to HMRC using form IHT400.

You need to calculate the following 3 values so you can report the estate’s value:

• the estate’s gross value – this includes the total value of all the person’s assets and any gifts they made in the 7 years before they died

• the estate’s net value – this is the gross value minus any debts, such as a mortgage or

funeral costs

• the estate’s net qualifying value – this is the net value minus any assets left to spouses, civil partners, charities or assets that are exempt for other reasons

 

You can use the online checker tool to help you calculate these values:

https://www.gov.uk/valuing-estate-of-someone-who-died/estimate-estate-value

 

What to do if you’re dealing with an excepted estate – if the person died on or

before 31 December 2021:

Report the value of the estate to HM Revenue and Customs (HMRC) by completing form IHT205, and IHT217 if you need to transfer an unused inheritance tax allowance for a Widow/Widower.

The complexity of the HMRC reporting requirements and forms can prove complicated

and daunting. If you get stuck or are worried about making a mistake, consider applying

for the Assisted DIY Probate Service administered by Berkeley Weston Ltd.

 

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Downloads & Links

• How to value an estate for Inheritance Tax and report its value
• IHT Documents

Applying for Probate

Before applying for probate you’ll need the following paperwork:

• An original copy of the death certificate as issued by the registry office, or a

coroner’s certificate.

• The original Will and any codicils (documents which amend the Will) in theiroriginal condition. Do not fasten anything to, or remove attachments from, these documents. Ensure that you keep a copy of each document and attachment you send as you won’t receive the originals back from the Probate Registry Office

• Any other documents as specifically requested by HM Courts service, such as a copy of the decree absolute if the deceased was divorced.

• A cheque made payable to ‘HM Courts & Tribunals Service’ to cover the cost of the application fee and the number of official sealed copies of the grant you require*. The probate application fee is currently £273.00 and each official copy costs £1.50.

*To give an idea of how many sealed copies to order, a minimum of five is recommended and ideally one sealed copy for each asset to be realised. For example, a bank account should have its own sealed copy, as should Premium Bond holdings and building society accounts.

If you are dealing with an excepted estate and the death occurred before

31st December 2021:

• Form IHT205 signed by all applicants. Supplementary forms IHT207/IHT217 if applicable.

Who should apply for Probate?

If more than one person is named as an executor, you must all agree who makes the application for probate.

Up to 4 executors can be named on the application. If you cannot agree who should apply for probate you’ll need to seek independent legal advice.

If more than one executor is named in the Will, any one or combination of executors can apply. Those not applying can either:

• choose not to apply now but reserve the right to apply later. This is known as holding ‘power reserved’.

Tell the person who’s making the probate application that you’re holding power reserved. You need to do this in writing (use the ‘power reserved notice’ in the resources section of your DIY Probate Guide)

• Give up the right to apply completely. This is known as ‘renunciation’. Fill in form

PA15 and send this to the Probate Registry with your application.

Applying for probate

You can apply for probate online or by post after you’ve valued the estate.

To apply online use this link:

https://www.gov.uk/applying-for-probate/apply-for-probate

To apply by post you’ll need to complete a paper form. The form you need to fill in depends on whether the person left a will or not.

• If there’s a Will, fill in application form PA1P.
• If there’s not a Will, fill in application form PA1A.

How long does it take?

Once you have submitted your probate application you should receive the grant of probate within 16 weeks. If you have any queries about your probate application after you’ve applied you should contact the Courts and Tribunals Service Centre

Telephone: 0300 303 0648 Email: contactprobate@justice.gov.uk

 

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Downloads & Links

• Applying for probate
• Power Reserved Notice
• D440-Search for Decree Absolute
• PA Documents

Check that the details on the Grant (e.g. name of deceased, details of personal representative and date of death) are all correct.

If any detail is incorrect, the error should be corrected at this stage of the process, without delay. This can be done by returning the original Grant plus all court sealed copies to the Probate Registry, with details of the amendment required.

Other details contained within the Grant are the gross and net values of the deceased’s estate, taken from the values on the PA1 probate application form.

 

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This step is best-practice, but optional, if the deceased had a history of using unsecured debt such as credit/store cards, loans etc. If this is the case the Executor(s) should give Notice under Section 27 Trustee Act 1925 that the estate is to be distributed on a given date. This protects them against claims inrespect of unknown debts after the estate has been wound up.

The notice has to be published in the London Gazette. If the estate includes land, the notice should also appear in a newspaper circulated in the locality of the land.

The notices give interested parties two months from the date of the notice to make a claim against the estate. A creditor cannot seek to recover any liabilities from the estate after this two month window has closed. The Executor is therefore clear to distribute the residuary estate after this period.

Please note:
• Claimants can still recover any debts from the beneficiaries of the estate.
• Claims made against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 can be made up to six months after the date probate was granted.
• It is best practice to wait until six months has passed from the date of the grant of probate before making distributions to beneficiaries. This allows a claimant to come forward within this period of time. If you pay funds to a beneficiary and a there is a successful claim against the estate, you may be personally liable.

You can contact the London Gazette by telephone on 0870 600 3322, or online at: www.london-gazette.co.uk/place-notice.

At the time of writing, the cost of placing an advertisement with the London Gazette is £75.50 + VAT. Local newspaper rates vary for advertisements but at the time of writing, rates are generally around £150 – £200.

The cost of such notices is a valid expense of the estate.

 

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Downloads & Links

• Place a deceased estates notice

Write to the asset holding organisations such as banks and building societies enclosing a court sealed copy of the Grant of Probate. Follow the instructions provided by the organisation e.g. complete any account closure or withdrawal forms sent to you after the death was registered.

Instruct the organisation to pay the funds directly into the executor’s account or issue a cheque. The cheque should be made payable to the corresponding name on the executor’s account otherwise it may present difficulties depositing the cheque with the bank.

 

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Downloads & Links

• Bank – Grant
• Creditor – Settlement
• HMLR Documents
• Investment – Grant
• Land Registry Letter
• Life Insurance – Grant
• NS&I – Grant
• Shares – Grant
• Shares – Stock Transfer
• Utilities_house sold

Following the action carried out in step 8 you should’ve received a response from the companies holding the deceased person’s money how to close the accounts and release the funds to thge executor(s).

Instruct the organisation to pay the funds directly into the executor’s account or issue a cheque. The cheque should be made payable to the corresponding name on the executor’s account otherwise it may present difficulties depositing the cheque with the bank.

For shares the executor(s) can elect to sell or transfer them into the name(s) of the beneficiars.

Premium Bonds can remain in the monthly draw for up to 12 months frollowing the date of death, so a decision should be made whether to sell the holding or retain them.

Dealing with the deceased’s property

Property owned in sole name

If the deceased owned a property in their name only, the property is inherited by the person(s) named in the Will. The executor(s) is faced with a decision to either:

i. Transfer ownership of the property into the names of the beneficiary(s) of the estate. This is achieved by completing HM Land Registry Forms AP1, AS1 and ID1.

There is a fee payable to HM Land Registry on a sliding scale depending on the value of the property. The current scale of fees can be viewed online here:
https://www.gov.uk/guidance/hm-land-registry-registration-services-fees

If the executor does not want to complete the forms help can be obtained from Berkeley Weston Ltd Legal Services. Eligibility criteria apply.
To find out more please email phil.weston@berkeleyweston.co.uk

ii. Sell the property. In this instance the property would be placed on the market for sale in the usual way and a conveyancing solicitor instructed. If you do not already have a conveyancing solicitor we can put you in touch with our trusted conveyancing partner, please email phi.weston@berkeleyweston.co.uk for details

Property owned in joint names

When two or more people own a property together, ownership is either under a legal arrangement called ‘joint tenants’ or ‘tenants in common’ (the use of the word ‘tenants’ here has nothing to do with renting a property).

Ownership as ‘joint tenants’

If two or more people own a property together as ‘joint tenants’ it means that when one of them dies their share of the property automatically passes to the surviving joint owner(s), regardless of the terms of the Will.

To change the ownership of a property held as ‘joint tenants’, complete the Land Registry form ‘DJP’

Once you have completed the form send it to the Land Registry with the supporting documents required and the property register will be updated to remove the deceased person’s name from the deeds (note that paper deeds are now mostly a thing of the past, with the Land Registry now operating computerised records for all registered land).

Ownership as ‘tenants in common’

In this scenario, the deceased’s property does not pass automatically to the surviving joint owner(s), as it does with ‘joint tenants’. Their share of the property will instead form part of their estate to be distributed in accordance with the Will. In these circumstances, a ‘transfer of equity’ may be required to reflect the change in circumstances. If this is the case I recommend you seek advice from a conveyancing Lawyer, email phil.weston@berkeleyweston.co.uk for an introduction to our trusted conveyancing partner

If the property is mortgaged

If there is an outstanding mortgage, the mortgage lender will either require the repayment of the mortgage or ask the beneficiary to take over the mortgage (subject to the usual underwriting requirements).

If a sale of the property is taking place, the conveyancing solicitor will repay the mortgage from the proceeds of sale.

 

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Downloads & Links

• HMLR_DJP
• HMLR_AP1
• HMLR_AS1
• HMLR_ID1

As soon as the cash funds of the estate are released, whether direct from financial accounts or from the sale of stocks/shares/other assets, pay the deceased’s debts as soon as possible.

In addition to existing debts, it is likely that ‘testamentary’ expenses (e.g. the fee for the Assisted DIY Probate service) will have arisen during the course of administration of the estate.

Please note that an executor cannot charge for his time in carrying out his duties, unless these form part of his usual profession or business e.g. solicitor or accountant. The Executor’s duty to pay debts

Although there is no legal time limit for the payment of debts incurred prior to the death of the deceased, there is a requirement to pay them with ‘due diligence’. It should be noted that no contrary provision in a Will can vary the duty to pay debts to creditors.

Keep a written record of all money leaving the Executor’s account, together with receipts. This information will be required later when you prepare the estate Accounts.

There may be estate liabilities that legally need to be settled that you don’t know about at this stage. A common example is money owed to the Department of Work and Pensions in respect of overpaid state benefits e.g. State Pension.

Income Tax

Income tax is applicable to the deceased’s estate according to the tax year in which
income is received.

• It is possible to offset interest paid during that same tax year on any loans taken out to pay for inheritance tax against the income tax bill.
• Some of the estate’s assets may have been taxed at source, i.e. before they are paid to the estate. This may be the case with the balance of a savings account, for example. However, other income such as rent will be paid directly to you without the deduction of tax. Where this is the case, it is taxable at the standard rate and no personal allowance is available to you.
• Each beneficiary must account in their own tax return for their share of the income of the estate earned between the death of the deceased and the distribution of the estate. However, the beneficiaries are entitled to credit for any tax paid on their share by you.
• If a beneficiary is not liable for income tax they can reclaim any tax deducted from their share.
• If a beneficiary is a higher-rate tax payer then they will be liable for the difference
  between standard and higher rates of tax on their share. If you are unsure about how to deal with income tax seek professional advice from a tax accountant.

Capital Gains Tax

Capital gains tax is only applicable if it exceeds the set amount of exemption within a tax year (currently £6,000 2023/4).

Capital gains up to the date of death

If the deceased has realised any assets in the tax year in which the death occurs, then details of these must be included on the deceased’s income tax return up to the date of death. Pay any tax due from the estate.

Capital gains after death

Any gains made by the estate will also be liable for tax during the period of administration from the date of death to the end of the distribution of the estate. If the deceased’s assets are sold for more than their value at the deceased’s death, with a gain of more than the annual allowance, there may be capital gains tax to pay.

For further information about capital gains tax follow this link:
http://www.hmrc.gov.uk/cgt/intro/gifts-inherit-divorce.htm#2

If capital gains tax is likely to be payable by the estate, it is advisable to seek the advice of an accountant to minimise the risk of an error being made. The costs of such professional fees are a valid expense of the estate.

 

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Downloads & Links

• Capital Gains Tax: what you pay it on, rates and allowances

It is advisable to write to all legatees and beneficiaries once in possession the Grant of Probate, to inform them of their inheritance and when they can expect to receive it. Include a copy of the Will and grant of probate with the letter. It is acceptable to redact the parts of the will which don’t apply to the individual beneficiary, but bear in mind the Will is a public document available to anyone to download from the official website.

Settle Pecuniary Legacies and Gifts

Pecuniary legacies

Pecuniary legacies represent a gift of money in the Will. Payment of pecuniary legacies need to be finalised by the end of the ‘executor’s year’, i.e. 12 months after the death of the deceased, unless there are instructions to the contrary. If a payment of a legacy is not made in this time, the beneficiary is entitled to interest payable on the legacy as compensation for late payment.

Specific legacies

The term ‘specific legacy’ refers to a particular item (or group of items) bequeathed by the deceased, which must be distinguishable in the Will from other similar items. For example, the testator must state in the Will ‘my diamond engagement ring’ (and not just ‘a diamond ring’ if they owned more than one) should pass to the beneficiary, for it to be a specific legacy.

 

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Downloads & Links

• Letter to beneficiarires post Grant
• Receipt from beneficiary

Prepare the Final Estate Accounts

The Executor is required to compile and provide accurate accounts of the estate. The financial information collated since the date of death needs putting into an organised report, to be signed by the Executor(s).

The accounts should include the following items:

• Assets at the date of death.
• Liabilities at the date of death.
• Income received during the period of administration.
• Changes in assets value where appropriate e.g. an increase in property value.
• Expenses incurred during the period of administration.
• Distribution of legacies and the residue to the beneficiaries.

Include any documents showing how you distributed money, property or personal belongings from the estate, for example:

• letters from HMRC confirming that you paid Inheritance Tax
• receipts showing debts paid, for example utilities bills
• receipts for your expenses from dealing with the estate
• written confirmation that ‘beneficiaries’ (anyone who inherited) received their share of the estate

Send copies of the final accounts to all beneficiaries.

 

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Downloads & Links

• Estate and Distrubtion Accounts

Finalising the estate

Obtain Inheritance Tax clearance

If you have paid inheritance tax on the estate and no changes to the asset values need to be reported to HMRC complete form IHT30 and request a formal clearance before distributing the residuary estate.

This only applies if you have completed a full inheritance tax account using form IHT400. For excepted estates automatic clearance is granted after 30 days of the form being submitted to the Probate Registry (so if you don’t hear from HMRC within 30 days IHT clearance is obtained).

Check if Inheritance Tax relief can be claimed Inheritance Tax on death is calculated on the value of assets at the date of death. If a property or shares are subsequently sold at a lower price, relief from IHT may be available. This effectively amounts to a refund on the excess tax paid.

This applies where:

• Inheritance Tax has been paid in the estate.
• A property is subsequently sold at a loss within 4 years of the date of death. In this case HMRC form IHT38 should be completed and submitted to HMRC. To qualify the claim has to be within 7 seven years from the date of death.
• Shares are sold at a loss within 1 year of the date of death. In this case HMRC form IHT35 should be completed and submitted to HMRC. To qualify the claim has to be within 4 years from the date the shares were sold.

Claims against an Estate

A claim may be made against an estate, either by a creditor or an individual. Unless the claim is straightforward, e.g. by a previously unknown creditor where the debt is not disputed, always seek advice from a solicitor.

A claimant should submit the claim within 6 months of the date of the Grant of Representation.

A claim against the estate may be made by an individual under the Inheritance (Provision for Family and Dependants) Act 1975. Claims may be made by:

• A wife, husband or registered civil partner.
• A former wife, former husband or former civil partner who has not remarried or entered a subsequent civil partnership.
• Children of the deceased, including adopted children.
• Any person who was treated as a child of any marriage or civil partnership (current or previous) in which the deceased was party.
• Any person considering themselves to have been maintained substantially by the deceased materially before the death (this does not include payment of debts).
• A common law partner, who cohabited with the deceased for a minimum of two years prior to the death, can make a claim without having to prove that the deceased was responsible for their maintenance.

If such a claim is made against the estate, you should seek immediate advice from a solicitor.

Distributing the Residuary Estate

• The residuary estate refers to the net estate after payment of all legacies, tax, debts, administration expenses and funeral costs.
• Distribute the residuary estate as instructed by the Will, or in accordance with Intestacy rules where no valid Will exists.
• Before making this final distribution, ensure that there are no outstanding liabilities.
• Provide a copy of the final estate accounts to the residuary beneficiaries at the same time that they receive their inheritance from the estate.
• The beneficiaries should sign a receipt acknowledging the settlement and approving the estate accounts. An example can be found in the resources section.
• If a beneficiary is under the age of 18, a parent or guardian should sign for them. It is advisable to take professional advice in these circumstances.

Keep all paperwork for at least 12 years after the final distribution to the beneficiaries. If inheritance tax has been paid you should keep records for 20 years as HM Revenue and Customs (HMRC) can ask to see your records up to 20 years after Inheritance Tax is paid.

You must keep copies of any:

• Will
• copies of signed Inheritance Tax forms and supporting documents
• records showing how you worked out the value of assets in the estate, for example an estate agent’s valuation
• documents showing any unused Inheritance Tax threshold that can be transferred to a surviving spouse or civil partner
• final accounts

If you have got this far and completed all of the relevant tasks then I congratulate you on completing a successful DIY Probate

 

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Downloads & Links

• How To Get Your Affairs in Order Guide
• When I’m Gone Checklist
• Click download for your step-by-step instructions