Wills and Testaments

Legal Advice

If you have any difficulty in dealing with the deceased's property, possessions or guardianship of their children, get advice from a solicitor or Citizens Advice Bureau as soon as possible.

From the CAB (or their website) you can get the leaflets Legal Aid Guide and Getting Legal Help from a Citizens Advice Bureau, public library, police station or a court, to find out if you can get legal aid.

These places also hold a list of local solicitors which shows whether they take legal aid cases and if they specialise in probate work. Again you can search for local solicitors using the online directories Yellow Pages and Scoot

The Legal Services Commission website also contains leaflets and other useful information.

Many solicitors are prepared to offer up to half an hour of legal advice for a small fee, some even offer a free initial consultation to discuss your situation.

What is Probate and Do I Need It?

The word "probate" is often misunderstood. It conjures up images of months of difficulty and delay. This is not inevitable and many simple probates are finished quite easily in a month or so.

What is it?

It is a document issued by the Probate Registry confirming that an executor has the right to wind up an estate of the person who has died. The "estate" is the house, money and savings left by someone when they pass away. The "executor" is the person chosen in the Will to sort out the estate and make sure it goes to the people named in the Will.

Do I have to have it?

This depends upon the size of the estate. Often, when the estate is very small no probate is needed.

How do I get it?

By filling in some forms. If the estate is small the forms do not have to give full details of it. The important form is the "Executors Oath". This is not usually available from stationery shops but can be found in books about probate. It has to be sworn as being true. For more information on Probate, including application forms, fees etc. visit the website of the Court Service

Do I have to use a solicitor?
No, but it helps. You can also apply direct to the Probate Registry yourself. Most solicitors offer probate services and their fees depend upon the amount of work necessary and the size of the estate. Always ask them first.

Wills

In order for a will to be valid, it must be:-

1. made by a person who is 18 years old or over
2. made voluntarily and without pressure from any other person
3. made by a person who is of sound mind (this means that s/he is fully aware of the nature of the document s/he is writing or signing and aware of her/his property and the identify of the people who may inherit; and in writing)
4. signed by the person making the will in the presence of two witnesses
5. signed by the two witnesses, in the presence of the person making the will, after s/he has signed

A witness or the married partner of a witness cannot benefit from a will. If a witness is a beneficiary (or the married partner of a beneficiary), the will is still valid but the beneficiary will not be able to inherit under the will.

Although it will be legally valid even if it is not dated, it is advisable to ensure that the will also includes the date on which it is signed.

As soon as the will is signed and witnessed, it is complete.

What if there is no Will?

Speak to a solicitor - it is safer in the long run because various laws affect who is entitled to wind up the estate and receive the money.

Tax

If the person who died was paying tax on income from investments or as a self employed person or as an employee, tell the tax office about the death as soon as possible. This will enable the deceased's tax affairs to be settled. Depending on circumstances, this may involve some more tax or claiming a repayment. The particular tax office to contact will depend upon the deceased's circumstances.

For instance f the deceased was an employee or had a pension from a former employer, the pay section of the employer or pension organisation will know the deceased's tax office.

If the deceased was self-employed, contact the tax office nearest to the place of business.

If the deceased was unemployed, or retired without pension from a former employer, contact the tax office nearest to the home address.

Inland Revenue leaflet IR45 What to do about tax when someone dies gives more information. Alternatively, further information, and copies of IR45 leaflet are available on the Inland Revenue's website.

Independent Financial Advice

Professional advice on financial matters can be obtained from a variety of sources. Your bank or building society may be able to offer you assistance regarding investments etc., however, they will generally only be able to recommend their own policies and investment opportunities.

An Independent Financial Advisor will be able to search around for the best investments, savings, life assurance, mortgages etc., to suit your individual needs. It makes sense to contact an Independent Financial Advisor so that you can make comparisons on all the different options that are available.