Probate & Estate Fee Administration

How does probate work without a will?

If there is no will, then the rules of intestacy will apply to determine the order of inheritance as follows:

• Spouse or civil partner

• Children/grandchildren

• Parents

• Brothers and sisters

• Grandparents

• Uncles and aunts

Do I still need to apply for probate if i am the deceased's power of attorney?

Yes. Power of attorney and probate are two separate things. If you have been given power of attorney, this enables you to make decisions on behalf of another person while they are still alive. But once that person passes away, the power of attorney ends. The deceased’s will is then the legal document that appoints the executor. It is the executor who has the right to apply for the Grant of Probate and to administer the estate.

Registering a death: When can a death be registered?

Once a doctor has issued a medical certificate giving the cause of death, or the coroner has provided the necessary paperwork.

• When should the death be registered? Generally, within five days of the death, unless the death is reported to the coroner and there has to be a post mortem or an inquest, which may delay registration.

• Where must the death be registered? At the register office for births, deaths, marriages and civil partnerships for the district where the person died. You can register in a different district and the details will be passed on to the correct district.

• Who can register the death? Preferably a relative, but it may also be someone who was present at the death, the person who is arranging the funeral or someone from the hospital or nursing home.

What information do I need to register a death?

• The medical certificate from the doctor
• 
  Full name (and any previous names) of the deceased

• The date and place of their death

• Their occupation and their last address

• Name, date of birth and occupation of their spouse/civil partner (whether they’re still alive or not)

• Any information you have relating to their state benefits

• Not essential – but it may be appropriate to take ID for yourself

What if the death is reported to the coroner?

The coroner may decide that:

• The cause of death is clear and that a post mortem isn’t needed – the death can then be registered

• That a post mortem is needed and they will release the body for the funeral once the post mortem has been completed and no more examinations are necessary

• An inquest is necessary. The death can’t be registered until that has been completed, but the coroner can issue an interim death certificate as proof of death and in some cases, may allow the funeral to take place

Can I object to a post mortem if one is ordered by the coroner?

No, but you should tell them if you have strong religious or other objections.

Can I request an inquest?

No, only a coroner can insist on one, but relatives can attend and ask witnesses questions.

What happens when I register a death?

You will be given:

• A certificate for burial or cremation (green form) to be given to the funeral director

• A form for the DWP (BD8); and

• A death certificate (a copy of the entry made by the registrar in the death register), which costs £4 in England and Wales.

You can buy additional copies of the death certificate at the time and it is usually helpful to have several, for each asset holder.

I don’t agree with the amount of inheritance left to me and think I deserve more. Can I make an application to the court?

Depending on your relationship to the deceased you may be able to make a “maintenance” application under the Inheritance (Provision for Family and Dependants) Act 1975 (“Act”). Section 1 of the Act lists the persons who may make an application to the Court for maintenance.

These persons vaguely fall into the following categories:

• Spouse or civil partner of the deceased

• Claimants who cohabited continuously for at least 2 years immediately prior to the deceased’s death

• The deceased’s child/ren (child can include an adopted, fostered and step-child); or

• Claimants treated as the deceased’s child (including adult children)

• Claimants being “maintained” by the deceased.

Should you consider yourself to have been maintained by the deceased you may wish to speak to one of our team to assess the merits of your claim.

I’m a beneficiary under a trust however I’m unhappy with the trust management and would like my trustees removed.

Thankfully the law has created procedures for the removal and replacement of trustees in order to protect the interests of beneficiaries. We can assist you with the removal of a trustee mechanism. To remove them depends on the type of trust you have and what may be stated within the trust instrument itself.

Some trusts provide express provisions to remove and replace trustees. In cases where it’s not possible to exercise a provision within a trust instrument, a court application may be necessary. Trustees may be removed or replaced due to the powers noted within the trust instrument, such as lack of capacity, retirement or breach of fiduciary duty.

A loved one left me out of their will, can they do this?

The laws of England and Wales allow those gifting their assets by will (Testators) “testamentary freedom” to divulge their estate to whom they wish – there is unfortunately no presumption that certain people (such as children) should automatically be entitled to any inheritance. In the absence of a valid will (please see the section above on contesting a will) the intestacy rules will apply.

The rules with England and Wales, however may not prevent a potential beneficiary from making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“Act”).