Wills & Probate

To make a valid Will you must be 18 or over and have the required ‘mental capacity’. This means that the person wishing to create a Will must have an understanding of the nature of their actions and its effects and the extent of their property.

An executor has various responsibilities under a Will, which can be time consuming. Responsibilities include:

• paying of the deceased’s debts
• organising funeral expenses
• arrangements for the deceased’s home, for example valuation and sale
• establishing assets
• paying beneficiaries and legatees in accordance to the Will

A member of your family, your partner, a friend or solicitor may act as your executor. The executor must be over the age of 18.

A Will can be cancelled simply by creating a new Will which states that all previous Wills are revoked. Your current Will will be automatically revoked if you marry or enter into a Civil Partnership.

A clause may be added to stipulate that your current Will is not to be revoked by your intention to marry or enter into a civil partnership with the named partner.

Alternatively, a Will can be revoked by destruction, for example, by burning, tearing or otherwise.

You must sign the will in the presence of two independent witnesses who both watch you sign the will and then they must sign the will under your signature in your presence and in the presence of each other.

Any independent person may witness your Will. Independent means that they must not be related to the maker of the Will or be a beneficiary under the Will, or married to or a civil partner of any of the beneficiaries.

It does not have to be a solicitor; it can be a neighbour or friend. However at John Birkby & Co we will witness your will.

Once you have signed your Will and had it witnessed as part of the Will service, John Birkby & Co will then store your original Will in our Wills safe and then provide you with a copy.

A Will allows you to specify how you wish your estate to be administered once you pass away. If you have not made a Will when you die your estate (all that you own at the date of your death) will pass under the ‘Intestacy Rules’. These rules decide who should be entitled to your estate. It is important to note that these rules only apply to property that would normally pass under a Will had a Will been made.

Probate is only granted where the deceased left a Will. The grant of probate of the Will is a Court Order that gives the executors of the Will the right to deal with the assets and property of the person who has died. For example, when you show the grant of probate to a bank they know they are dealing with the person who is allowed to handle the estate and they will allow you to close the deceased’s account.

If the deceased did not make a Will, their estate will be shared out under the “rules of intestacy”. These rules set out who deals with the estate and who benefits from it. There is a strict order of entitlement and we will advise as to who is entitled.

Where there is no Will the Court Order is known as a grant of letters of administration (as opposed to a grant of probate where there is a Will) and the persons appointed by the grant of letters of administration are known as administrators (as opposed to executors where there is a Will). You apply for a grant of letters of administration in the same way as you would apply for probate.

In some cases you do not need to apply for a grant. This is when the person who has died left very little (usually under £20,000) or else everything they own was held in joint names with someone whose share automatically passes to them.

The application is made online to the Probate Registry. The original Will is retained by the Probate Registry.

Once probate has been granted the Will becomes a matter of public record. Unless there has been any objection to the application lodged at the Probate Registry, the application generally takes around 4-8 weeks once it has been submitted.

The Probate Registry will charge a fixed fee of £273 in respect of the application.

If there is inheritance tax payable then the Inland Revenue Account for inheritance tax purposes must be submitted 20 working days before the application for the grant of probate or letters of administration. If there is no inheritance tax payable then an Inland Revenue Account may not be required but an accurate estimate of the estate’s value is reported as part of the probate application.

No. If an executor wishes to stand down then they can renounce probate and take no further part in the administration. However, they can only renounce probate if they have not intermeddled in the administration of the estate up to that point. If they have taken any part in the administration of the estate then they cannot then stand down. 

Alternatively, power can be reserved to an executor. This means that the executor to whom power is reserved does not join in the application for the grant of probate. It does not mean they have renounced their right to be an executor completely, but instead that they have reserved the power to extract a grant in the future if they wished to do so.If an executor named in the Will has predeceased the testator then their appointment lapses.

Where possible please let us have a copy of the death certificate of the executor who has died.

It is impossible to give an answer to this question, as it will vary from one estate to another. It will generally depend upon how complicated the estate is and how many assets there are. For a straightforward estate we expect matters to be concluded within 6-8 months and where Inheritance Tax is payable within 9-12 months.

We charge on the basis of the time spent administering the estate, which means that our charges for administering a large estate consisting of one or two assets may be less than dealing with a small estate with shares and several beneficiaries.

Full information is set out in our guide to probate fees.