Wills & Probate: frequently asked questions
Navigating the way through the probate and estate administration process can be a stressful time for everyone involved. In our recent article published by the Congleton Chronicle, our Managing Director and Solicitor Paul Clark answers some of the most frequently asked questions regarding Wills and Probate. The answers to those questions can also be found in this article.
I am an executor, do I have to follow what it says in the Will?
Yes. It is the executor’s responsibility to administer a deceased person’s estate in accordance with the terms of their Will. In general, executors must always act in the best interests of a deceased’s estate and the beneficiaries. Executor’s duties are set out by law and include collecting in estate assets, applying for a Grant of Probate and calculating and paying any inheritance tax that might be due.
I am an executor, can I choose who to pay?
Executors cannot go against the terms of the Will or decide who benefits from a deceased’s estate just because they don’t agree with the contents of a Will (and wish to follow an earlier Will instead). Executors can be held personally financially liable for any breaches made by them during the administration process even in the case of an honest mistake.
Some Wills contain trusts which give the Executors (if they are also trustees) the power to choose who to pay but they would be acting in their role as Trustee. Trusts can be very complex and it is important to take legal advice before taking any action.
Do I have to act as an executor?
No. A person does not have to accept the role of executor and they can renounce their role. However, if they have started acting as executor, for example they have already taken out a Grant of Probate or have started collecting in assets, then they may have to continue acting as executor.
An executor must sign a legal document call a Deed of Renunciation to give up their right to the role.
Is probate required if there is a Will?
The fact a person has a Will does not make a difference when it comes to deciding if probate is required. Probate is the process of ‘proving’ a Will is valid or if no Will is left, proving who is entitled to inherit from the person who has died. Where there is a Will and the executor is acting, it is called a Grant of Probate and where there is no Will, it is called a Grant of Letters of Administration. Determining if a Grant is required usually depends on the type of assets left by the person that died, how they are owned and the value of those assets.
How much does probate cost?
The Probate Registry charges an application fee for applying for probate which is currently £215. This fee is £155 if a Solicitor or specialist probate practitioner is administering the estate. Other expenses include placing notices to creditors to protect against any unwanted claims against the estate.
If a Solicitor or probate practitioner is administering the estate, their professional fees are paid by the estate of the person who has died. Our fees for probate and estate administration are fixed and depend upon the work required and whether or not inheritance tax is due. We do not charge a percentage of the value of the estate. Click here for more information our probate prices which start from £795.
I have been left out of a Will, can I challenge it?
Under a law called the Inheritance (Provision for Family and Dependants) Act 1975, certain people can make a claim against a person’s estate for reasonable financial provision. The people that can make a claim includes (but is not limited to) spouses, civil partners and children. This would apply to those people who might have reasonably expected to inherit but have been left out of a Will or receive less than they need.
There are other ways in which a Will can be challenged including on the grounds that the person making the Will did not have the required mental capacity or that they were coerced or influenced into making a Will.
The rules surrounding these types of claims are complex and legal advice should always be sought about the likelihood of being successful in bringing (or defending) such a claim.
My parent had dementia at the time of making their Will – does that mean their Will is not valid?
Not necessarily. A diagnosis of dementia does not always mean that a person does have the required mental capacity to make a Will. A legal professional drafting a Will for a client must assess their mental capacity to make a Will (known as testamentary capacity) and it is possible to pass this test even if someone is living with dementia. In cases where there are doubts about capacity, it is quite common to ask a medical professional to complete a report about that person’s capacity to make a Will.
Dementia is a progressive illness meaning that a person’s symptoms get worse over time and they will reach a point where they no longer have sufficient mental capacity to make a Will. It is therefore important for anyone diagnosed with dementia to make a Will as soon as possible to ensure that their wishes take effect.
What to do if you have any further questions?
Spall Clark Solicitors are specialists in advising individuals and families about probate and estate administration. We also provide advice about challenging Wills or where an executor has acted improperly during the estate administration process. We offer fixed fee legal advice in plain English. For a free initial consultation, please contact Paul Clark TEP or Pam Murphy TEP on 01270 868 373.
