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Probate - Administering the Estate of a
Deceased Person Where there is a Will.
In England and Wales probate is the formal
process whereby an executor (or executors)
of a will obtain the formal document which
is needed in order to deal with the estate
of the deceased. Very often probate is
obtained by a solicitor acting on behalf of
the executors but in simple estates or ones
of low value there is no reason why it
cannot be done by the executor acting
personally. An executor should, amongst
other things, be chosen for his or her
business like qualities and so obtaining
probate in a simple estate should be within
the competence of most people. Although
probate is sometimes contested and that will
lead to a formal hearing by a court the vast
majority of cases are uncontested and
obtaining the grant of probate is more of an
administrative matter than anything else. If
the testator did not leave a will and died
intestate then the next of kin will apply
for "letters of administration" rather than
probate but the process is basically
similar.
In most cases the executor has to swear an
affidavit (known as the executor's oath)
which sets out the fact of the testator's
death and various matters such as the value
of the estate etc. This needs to be lodged
with the Probate Registry together with the
original will, the probate fee and,
depending on the value of the estate, an
Inland Revenue account. If everything is in
order, the grant of probate will be made
within ten days or so. In straightforward
cases the executor can easily make the
application himself and the staff at the
Probate Registry are usually more than
willing to explain the procedure involved
and, indeed, on payment of a modest fee,
even help draft the necessary affidavit.
Quite often a solicitor will handle the
administration of the estate and there may
be several good reasons for this although in
simple cases it may not be necessary at all.
One reason why a solicitor may act, for
example, is because he or she has been
appointed an executor under the terms of the
will. This may or may not have been a
sensible thing for the testator to do and if
it is ever suggested to you that you should
appoint a solicitor as an executor of your
will it is wise to consider whether it is
really necessary. Sometimes it is but it is
not something which should be done as a
matter of course for reasons which we have
explained on the page concerning pitfalls to
avoid in will making.That applies even more
so to the appointment of an institutional
executor such as a bank. If your will has a
clause containing the latter you would be
well advised to change it unless you have
very good reasons for not doing so.
More often than not an executor will ask a
solicitor to act in the administration of
the estate simply because the executor does
not feel competent to do it or, possibly, is
too upset. Sometimes, too, it is done in
order to be seen to be fair and these are
perfectly good reasons. Naturally, in the
case of more complicated estates which might
involve, for instance, the sale of
properties or negotiations with the Inland
Revenue the services of a solicitor might be
thought prudent by most people.
If a solicitor is used it is always sensible
to agree the basis on which the estate will
be charged at the outset and to be quite
clear about this. In practice most
solicitors charge on a time costing basis
for probate work although some may work on a
percentage of the value of the estate or on
a fixed quote or whatever. Time costing is
certainly by far the most common and it is
sensible to enquire exactly what those rates
are.
Very often the administration of an estate
will involve the sale of a property which,
quite likely, the solicitor administering
the estate on behalf of the executors will
handle. There is a point to watch here.
Conveyancing, ie buying and selling
properties, is a very competitive market and
solicitors' charges for doing this work are
usually very reasonable. However, when a
solicitor sells property as part of the
administration of an estate no separate fee
might have been agreed for that part of the
work and so the solicitor may charge on the
time costing basis applicable to the work
involved in the administration of the
estate. This may well result in the estate
being charged a higher price than would have
been the case had quotes been obtained for
just the sale of the property. It is as well
to be aware of this and if the estate does
contain a property or properties to be sold
a separate price can be agreed for doing
this if the executors so wish. |
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