Wills, Trusts and Estates FAQs

Probate is normally required for anything other than a very small or simple estate. You will definitely need to apply for probate if you need to sell property on behalf of the estate and if any banks or organisations the person held assets with have told you they need to see it. In certain circumstances, probate will not be necessary. This could be if all property and bank accounts of the person who has died were held jointly with someone who is still living; the estate consists of only cash and personal belongings; the amount of money belonging to the estate is small and relevant banks or building societies have said they will release funds without a grant of probate. If assets pass to a spouse by survivorship for example, then probate will not be required.

Estate administration is the process of dealing with someone’s estate after their death. This could include dealing with any assets and debts, paying any tax due and distributing the estate to the beneficiaries of the estate.

If there is no will then the estate will have to be dealt with in accordance with the intestacy rules. The intestacy rules determine who the beneficiaries of the estate will be.

Usually estate administration can take around 6 – 12 months following which beneficiaries will start to receive their inheritance. However this varies depending on the complexity of the estate, whether there is a property to sell, if there are income or capital gains tax affairs to resolve or there are complications regarding the personal representatives or beneficiaries.

A Grant of Probate is the court order issued to the Executors named in the Will of the Deceased, providing authority to carry out the wishes of the Will. Letters of Administration is the court order issued to the person entitled to inherit the estate of the Deceased when there is no valid Will in place and The Intestacy Rules apply. This entitled person is called an Administrator, as opposed to an Executor in a Will. The term Grant of Probate is often used as an umbrella term for the different types of court orders providing authority to deal with the estate of a Deceased.

Yes, beneficiaries may not agree with the distribution between different beneficiaries particularly if they are receiving less that they were expecting, or if one beneficiary is receiving significantly more than the other beneficiaries. There can also be more specific disputes such as if one beneficiary wants the property in the estate sold and another beneficiary is living in the property and does not want it sold. Such disputes can cause beneficiaries to challenge the validity of the Will, cause delays in the estate administration, and incur additional costs if legal expertise or court proceedings required.

An Administrator of an estate is a person entitled to deal with the estate of the deceased in the event there is no valid Will. The Non-Contentious Probate Rules dictate entitlement and priority to act as the administrator:

• Spouse of the deceased – if none available then
• Child/ Children (adult) of the deceased - if none available then
• Parents of the deceased - if none available then
• Siblings of the full blood of the deceased - if none available then
• Siblings of the half blood of the deceased - if none available then
• Grandparents
• Uncles and Aunts - of the full blood of the deceased - if none available then
• Uncles and Aunts - of the half blood of the deceased.

Estate planning mistakes can significantly affect the probate process, often leading to complications, delays, and potential legal disputes. Here are some common estate planning mistakes and how they can impact probate:

1. Lack of a Will: If someone dies without a will (intestate), the law determines how assets are distributed, which may not align with your wishes. This can lead to disputes among heirs and a longer probate process.


2. Improperly Executed Will: If a will is not properly signed, witnessed, or executed it could be deemed invalid. This might result in the estate being treated as if there was no will at all, leading to intestacy.


3. Outdated Will: Failing to update a will after major life events (like marriage, divorce, birth of children, or changing of significant assets) can cause confusion and disputes during probate, as it may no longer reflect current wishes or circumstances.


4. Poorly Drafted Documents: Ambiguities or errors in estate planning documents such as wills or trust can lead to confusion, misinterpretation, and legal challenges during probate, potentially leading to lengthy court proceedings.


5. Not Planning for Taxes: Failure to consider the impact of estate taxes can lead to significant tax liabilities that might have to be settled during probate, potentially forcing the sale of estate assets to pay the tax bill.


6. Overlooking Digital Assets: This can lead to assets not being administered or dealt with. This is becoming a much bigger problem in the digital age.

There are several common mistakes when estate planning that can be made.

Firstly, having a Will in place, and then keeping your Will under review and updated regularly. Often a person thinks having a Will in place is only required when older, however if you have any assets or children it can be vital to get one in place sooner to provide protection and confirm your wishes. A regular Will review can assist when family circumstances or beneficiaries change. This is particularly important now blended families are more common, or if a beneficiary or executor predeceases you. The review can also contain up to date inheritance planning to review any new legislation changes in relation to your individual circumstances.

Also, joint assets pass automatically to the surviving owner, which is not always what a person intends, and can often cause mistakes in planning.

Whilst some errors can be rectified after someone has died, others – such as an invalid Will – cannot. It is therefore extremely important that you review your Will regularly and take appropriate advice, particularly since laws often change during a person’s lifetime.

Poor estate planning will reduce the amount available in the estate to distribute to beneficiaries in accordance with the deceased’s wishes. This could be because the lack of planning results in a complex estate that is timely and costly in legal and professional fees to carry out the administration, but also to resolve any disputes the may arise between beneficiaries. Estate planning on taxable estates could reduce the tax burden, but poor estate planning could leave a tax liability to be settled by executors again reducing the estate available to be distributed beneficiaries.

Poor estate planning can be problematic for beneficiaries. It could result in a reduced amount of inheritance being received by them if the estate administration expenses are higher due to poor estate planning. It could cause tax implications for the beneficiaries themselves which could have been avoided. Additionally, there could be unnecessary stress and worry for the beneficiaries due to poor estate planning. It is therefore important that property estate planning is done during one’s lifetime.

We would always recommend taking professional advice when dealing with estate planning. The professional can review the individual scenario of the circumstances, and advise if there is anything further that can assist. This can help with potentially reducing inheritance liability, and dealing with complex family scenarios.

Estate planning involves evaluating your assets and strategically gifting them during your lifetime to gradually reduce the value of the estate for inheritance purposes.
By doing this you can leverage your available exemptions and reliefs, thereby gradually reducing your estate size while carefully minimising your tax exposure.
In order to do this, you will need to consider factors such as your age, living costs, health and family dynamics, your needs for the future, by striking a balance between meeting your own requirements and minimising your IHT. With people living increasingly longer lives, careful consideration needs to be given when prematurely giving assets away and then finding that your lifestyle suffers later on in life.
It is also important to remember that minimising IHT is an ongoing process and needs to be reviewed regularly and adjusted, particularly when circumstances change.

The simple answer is yes. Tollers offers inheritance tax advice to ensure your Will is written in the most tax efficient way in order that your estate qualifies for all the reliefs that are available and can even offer advice on how to vary a Will after someone has died should it be necessary.