What Happens On Death
Has the deceased made a Will?
If the deceased has made a Will the person or person who are appointed his/her Executors will have the responsibility for identifying the assets and debts of the deceased, calculating any Inheritance Tax which may be payable and preparing the necessary HMRC forms, paying that tax, applying for probate and then gathering in the estate, paying the debts (including any outstanding Income or Capital Gains Tax) and distributing the assets to the persons named in the Will by the deceased (the ‘beneficiaries’).
‘Probate’ is the proof that the Probate Court has accepted the Will as the last valid Will made by the deceased and it gives the Executors authority to deal with the estate. Sometimes the Executors and the beneficiaries are the same persons.
Sometimes estates are simple and the Executors may wish to do the work themselves. However some estates are complex and some may even take some years to wind up. There are traps for the unwary, particularly in reporting the correct values to the Revenue and paying the right amount of tax.
In certain cases the Will can be varied by all the interested parties after death if they agree but again this can be a complex area which requires careful consideration.
Often our clients ask us to be Executors but we can also undertake the probate work for lay Executors if required.
Administrators - the deceased has not made a Will
If the deceased left no Will there is a statutory order of relatives who can apply to be Administrators of the estate. They have similar powers to Executors but must be appointed by the Probate Court instead of the Will and strictly in the order set out in the Intestacy Rules ('the Rules').
In the same way, the people who benefit from the estate take strictly in the order set out in the Rules. The surviving spouse has priority but what he or she is entitled to depends on whether the deceased left any children, grandchildren, parents, brothers or sisters.
Obviously some people would not wish their estate to be divided in accordance with the Rules but unless they have made a Will to reflect their wishes this is what will happen.
Children
If you make a Will you can appoint a guardian or guardians for your children. They can work alongside the other parent or, if none, on their own. This is only possible for children under 17. You should always discuss the appointment with the proposed guardian before making the Will in case they might feel unable to take on this responsibility. The rights of a guardian are similar to those of a parent with Parental Responsibility. Find out more in our Family Law section.