When someone dies, those left have to deal with the issue of what to do with their property and belongings. If there is no Will (i.e the estate is intestate), there is legislation that helps with the process of dividing any assets.
Here are the basic steps to follow:
- Check that there is definitely no Will to be found
- Apply for a Grant of Representation (often called probate )
- Pay any inheritance tax due
- Collect together any assets
- Pay any debts owed by the deceased
- Distribute the estate
How to Find Out if There is a Will?
It can be difficult to establish after their death if someone made a Will. It is therefore recommended that if you have made a Will, you tell your family that you have made one, and where it is held.
If you don t know the location of a deceased s Will, it is important to carry out a thorough search. Below are some ideas of where to look:
- Check through the deceased s documents – most people have a file of important documents (birth certificates / insurance etc) somewhere, so it may be with those
- Check in the deceased s safe
- If they had a lawyer that they used for other matters (e.g divorce or property sale) check if they hold a Will for the deceased
- Try calling local solicitor s to see if they hold a copy Will for the deceased
Note: Sometimes people make more than one Will, as they update or change how they wish their assets to be divided. If you find more than one Will, make sure that you use the most recently dated version, as older versions will no longer be valid.
If there is no Will, then the distribution of the estate will be governed (in England and Wales) by the Administration of Estate Act 1925. These are commonly known as the laws of intestacy, someone who dies without a Will is legally called intestate .
Regardless of whether there is a Will or not, you will need to apply for a Grant of Representation (commonly called probate ). If there is no Will, the deceased s next of kin can apply for probate (for example their spouse, civil partner, or child). It is possible to apply for probate as the spouse or civil partner of the deceased, even if you are separated, as long as you are not divorced.
Note: Unmarried partners cannot automatically apply for probate, (nor will they inherit your assets under the law of intestacy), so if you have a long-term partner but are not married, it is especially important that you make a will.
If all assets were jointly held, technically you do not require probate to distribute them. However many organisations such as banks will still ask for a copy, so it may be worth doing anyway!
Applying for probate
Here s how to apply:
- Complete a probate application form (PA1). If you need help completing the form, call HMRC on 0300 123 1072
- Complete an inheritance tax form. (You must complete this form, even if you think no tax is owed.)
- Send both forms along with the death certificate, the original will and three copies (if a will exists), and a £125 application fee. (There is no fee is the total estate is worth under £5,000)
- Swear an oath at the office of a Commissioner for Oaths (eg a solicitor s office), or the local probate office
You should get the probate certificate through in the post within 10 working days of swearing your oath.
How Stop Someone Getting Probate
You can stop someone getting probate by entering a caveat, as long as you are aged 18 or over. This caveat lasts 6 months to enable any dispute to be resolved. To enter a caveat, fill in form PA8 and send a £20 fee. (We recommend consulting a solicitor or your local Citizen s Advice Bureau if entering a caveat, as usually they precede a heated dispute between relatives.)
Find Out How an Estate Was Distributed
You can search probate records online for anyone who died after 1858. This should tell you who obtained probate to distribute the estate. There is a £10 fee per search. It takes around 14 days for the online record to update with details of new registrations.
Paying Inheritance Tax
You will have sent an Inheritance Tax Form to HMRC when obtaining probate, so they will let you know how much inheritance tax must be paid out of the deceased s assets. Just follow the instructions on the paperwork sent to you, and if you have any queries, contact HMRC who are usually very good at talking relatives through the process.
Collect the Deceased s Assets
If you send the probate certificate to organisations holding the deceased s assets (e.g banks), they should release these to you. You may also need to sell the deceased s property in order to release funds; any fees involved in the sale can be deducted from the sale profits.
To speed up the asset release process, you may wish to obtain several copies of the probate certificate. These cost only around 50p per copy.
Paying off debts
Before distributing the estate, the executor has a duty to pay off any debts owed by the deceased. This includes any outstanding tax owed to HMRC. Also don t forget that if the deceased didn t have a funeral plan in place, you will need to deduct the funeral costs from the value of the estate; funeral costs can be several thousand pounds!
If you are the executor, place a notice in The Gazette to give any creditors a chance to come forwards before the estate is distributed. That will ensure that you hold no personal liability for any of the deceased s debts of which you may not have been aware.
See our article on Debts After Death for more information
Distribute the Estate
- Any money in a joint bank account will automatically pass to the other owner(s)
- Any property owned under a joint tenancy (where all parties own the whole property jointly), will automatically pass to the surviving owner(s)
- Any property owned under a tenancy in common (where each party owns a fixed share of the property), the deceased s share will pass according to their will or the law of intestacy
If there is no will, you will need to distribute the estate in accordance with the law of intestacy:
Intestacy Law – Who Gets What If There s No Will?
If the estate is worth under £250,000, and the deceased has a spouse or civil partner, they will inherit the whole estate.
If the estate is worth over £250,000 the estate is divided as follows:
(1) Spouse or Civil Partner Still Alive
If the estate is worth over £250,000, and the deceased has a spouse or civil partner, they will inherit £250,000 value from the estate plus all personal possessions (regardless of value). The remainder of the estate (over £250,000 value) will then be split as 50% to the spouse or civil partner, and 50% divided between the surviving children. This includes adopted children but not step-children. If the children have died already, then their children will inherit in their place. If there are no children, the spouse or civil partner will inherit the whole estate.
(2) No Spouse or Civil Partner
If the deceased has no spouse or civil partner, the estate will be divided equally between their children. This includes adopted children but not step-children. If the children have died already, then their children will inherit in their place.
(3) No Spouse or Civil Partner and No Children/Grandchildren
If the deceased has no spouse or civil partner, and no children or grand-children, the estate will be divided equally between their parents. If the deceased has no living parents, the estate will be divided equally between their brothers and sisters (or their children if they have already died).
(4) No Spouse, Children, Parents or Siblings
If the deceased has no spouse/civil partner, no children/grandchildren, no parents and siblings, the estate will be divided equally between their half brothers and sisters. If there are no half siblings, the estate will be divided equally between their grandparents. If there are no living grandparents, the estate goes to aunts and uncles (half aunts and uncles if there are no full ones) or to their children (the deceased s cousins) if they have already died.
(5) None of the Above Relatives
If the deceased has no living: spouse; civil partner; children; grandchildren; parents; brothers or sisters; half brothers and sisters; grandparents; aunts and uncles or half aunts and uncles; nephew/nieces or cousins, the estate will all pass to the Crown.
As you can see from the above, it is extremely important to make a will if you have step-children or an unmarried partner that you would want to inherit from you. If you don t have a will, they won t get anything unless assets are jointly held!
Some of Your Questions Answered
The unmarried partner has been given a life tenancy in the property. That gives him the right to remain in the property until his death. He will be responsible for all insurance and maintenance costs. You can t legally throw him out, so your choices are either to sell the estate subject to a life tenant (not usually very desirable to a buyer), or speak to him about him forfeiting his life tenancy (likely by you buying him out ).
Has the nephew applied for probate? If not, then it may be worth you doing so. If he does not have probate, then he is not entitled to divide up the estate.
In any event, the estate must be divided up according to the rules of intestacy. Follow through the steps above to see who would inherit – this will depend upon what other surviving relatives are in your family. If your great-aunt has no spouse / civil partner, no children / grandchildren / great-grandchildren, and no parents, then the estate should be divided up equally amongst their sisters and brothers. If they are no longer alive, their children (ie her nieces and nephews) will inherit in their place. If there was no will and the nephew (your uncle) is legitimately inheriting from the estate, I would expect that your mother should do so too.
Firstly, I would question whether any Power of Attorney was valid. It seems strange that your father would agree for an estranged daughter to make all decisions (including financial decisions) on his behalf. If your father had already been diagnosed with dementia prior to signing the Power of Attorney, he may have lacked mental capacity making it invalid.
Secondly, if your father had no will, his estate would pass to his family in accordance with the laws of intestacy. Check whether your sister obtained probate. If not, she does not have authority to distribute the estate. If your father had no surviving spouse or civil partner, then the estate should have been divided equally between all his children. If there are just two children (you and your sister), then you should have received 50% of the value of the estate, including the property value. (This does not necessarily mean that your sister has to sell the property, but she should give you 50% of the value to essentially buy out your share.)
Again, check whether your brother had obtained probate. If not, he had no authority to divide up the estate. If you don t want to ask him, you can search for probate records online, for a £10 fee.
If your brother did have probate, it will be difficult at this stage to determine the value of the estate (ie how much was in your dad s accounts), as they will now be £0 / closed. You may therefore have to ask your brother directly.
Remember that any debts, including outstanding tax and solicitor s fees will need to be paid out of the estate prior to distribution. Also inheritance tax may have been paid. These could all reduce the value of the remaining estate to be divided up.
Dealing with the distribution of assets follow the death of a family member is always tricky, and can particularly bitter and emotional if a dispute arises. If you disagree with the way the estate has been distributed, speak to Citizens Advice Bureau for free advice and (though it may be difficult), try to approach the matter in a calm manner. Sometimes it can also be helpful to ask a trusted family friend or other relative to mediate any dispute to try to reduce any heated arguments and ensure a satisfactory resolution for everyone involved.