Many people have to face dealing with a relative's estate when they pass away, this can be an unexpected process for many. The individual dealing with the estate is an executor and a grant of representation may be required, depending on the nature of your deceased relative's estate. If there is more than £5,000 held in bank accounts (amount which ultimately would depend of the bank), or there are investments in the deceased's name and also if they owned a property, then grant is required. If all the assets in the estate were jointly owned, then it is possible that it will not be necessary.
The grant of representation can be of different types. If there is a valid will, the executor/executrix applies for a Grant of Probate. If there's no will, an administrator (often a close relative) applies for Letters of Administration. The value of the entire estate must be established. You will need to contact the banks and other financial institutions that the deceased had accounts with. As well as listing any assets such as property, shares, insurance policies, pensions or trusts. Liabilities must also be categorised and the value of any loans, mortgages, outstanding balances on credit cards and unpaid bills must be determined. All establishments must be contacted and informed. If Inheritance Tax is due, it must be paid, or at least the first payment must be made, before submitting the application for a grant of representation to the Probate Registry.
You can apply for probate yourself online or by post. If the estate's not 'excepted', you must also submit full details (the estate's assets and debts, any gifts made, and any reliefs and exemptions) to HM Revenue and Customs (HMRC) using form IHT400 before applying.
Some of the documents required for the representation to be granted are:
- The original will (if any);
- The death certificate;
- The probate application form;
- The application fee.
An oath or statement of truth must be sworn to confirm that the estate will be administered lawfully and be distributed in accordance with the will.
Sergio Filonenko Kibu, an associate, commented "there are various things that must be established before embarking on handling your deceased relative's estate. Once you know if probate is required and that you are eligible to apply, you can value the estate and pay any tax that is due. After which you can distribute the assets." Sergio further pointed out "it may be prudent to instruct an inheritance lawyer to assist with the procedure, which is unlike anything most people will have dealt with. Also, even when the deceased has left a will, disputes may arise between heirs and those who believe that they should be heirs."
Often the executor or administrator has no knowledge of their relative's will and the terms of the will can come as a surprise. Emotions can run high and disputes can occur when other relatives disagree with who should inherit and are not happy with how the estate is being managed or believe that they have been omitted from inheriting unfairly. The most common challenges involve:
- Suggesting the deceased lacked the mental capacity to draft a will, due to suffering from dementia or another type of cognitive impairment.
- The deceased was subject to the unfair influence and was coerced into benefiting one person over others.
- Technical errors such as not being signed properly or not correctly witnessed.
- Forgery of the signature on the will.
- Individuals also may challenge their provision as being inadequate.
If a person dies intestate (without having drawn up a will) the Inheritance (Provision for Family and Dependants) Act 1975 allows people close to the deceased to apply for financial provision from the deceased's estate in the court when they feel that they have not been adequately provided for. The people who are eligible to claim are:
- Spouse or civil partner of the deceased.
- Former spouse or civil partner who has remained single.
- Co-habiting partner who lived with the deceased for two years or more prior to the death.
- Child of the deceased.
- Anyone treated as a child of the family (such as a stepchild).
- A person who was financially dependent on the deceased at the time of death.
People who can inherit automatically under the Rules of Intestacy are the spouse or civil partner who inherits £322,000 together with half the value of the remaining estate. The other half is shared equally between the deceased's children. If there are no children, the spouse or civil partner inherits the entire estate. If there is no spouse or civil partner, the estate passes to the surviving relatives in this order, children, the deceased's parents, siblings, half-siblings, grandparents, aunts and uncles and half-aunts and half-uncles. If there are absolutely no relative,s The Crown receives the estate.
With divorce and second marriages and civil partnerships, many people are in blended families and may wish to benefit step-children and others. Giambrone and Partners' inheritance lawyers strongly urge the drafting of a will outlining the terms of the division of their estate and where necessary adding an explanation of their decisions. Our lawyers fully recognise that it is not unknown for a person not to wish to benefit certain members of their family who are likely to expect part or all of their estate. This can be dealt with by a lawyer who is fully aware of the issue and can draft the will in such a way that there is no doubt as to the testator's wishes. When a dispute arises an inheritance lawyer may be able to negotiate with the individual who is challenging the disposal of the estate and avoid the expense of a legal case.
An individual can, of course, draft their own will and provided it is signed and witnessed correctly.
By instructing an experienced inheritance lawyer, it may be possible to avoid the expense of court proceedings, as the lawyer may be able to negotiate directly with the individual challenging the distribution of the estate.
Sergio Filonenko Kibu is an Abogado (qualified Spanish lawyer) and is admitted to practise in England & Wales as a Registered Foreign Lawyer (RFL). He is an associate based in the London office.
Sergio assists commercial clients with a range of contentious and non-contentious matters. He is a highly regarded, astute lawyer advising on challenging cross-border disputes, including debt collection, contractual disputes and breach of contract. Sergio advised on complex high-value international financial disputes across several jurisdictions. He also assists businesses with drafting shareholder agreements, share purchases, mergers and acquisitions and security agreements.
Sergio has extensive experience assisting high-net-worth individuals with the acquisition of real estate, both residential and commercial, in excess of €10 million across the globe. Sergio's meticulous due diligence, with regard to large commercial real estate transactions, ensures that the investment is sound and also limits the exposure to risk, providing an outcome in line with the clients' objectives. He is also able to assist with regulatory issues surrounding such investment.
He aso leads the Ukrainian division and is assisting Ukrainian clients with immigration applications for visas for Ukrainians with family members in the UK, as well as applications for visas for Ukrainian citizens wishing to join their relatives in Italy, Spain, and Portugal. Sergio will guide the applications, working closely with each country's government department to accelerate the visa applications.
Furthermore, Sergio can advise private clients on inheritance, drafting wills for foreign nationals with overseas assets, including Spanish real estate, he can also assist with probate and inheritance disputes. Sergio also advises on cross-border divorce, establishing the financial and child arrangements. With regard to criminal defence, Sergio has assisted British nationals arrested in Spain for various offences. He speaks English, Ukrainian, Spanish, Polish, and Russian
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
