Losing someone is impossibly difficult. The last thing you need is to get caught up in the legal terminology, procedural difficulty, or potential pitfalls involved in the administration of an estate.
By reading the guide below, you will equip yourself with the information you need to follow the correct process after someone passes. Inside you will find information on:
- Inheritance tax
- Ascertaining an estate
- Collecting assets and settling debts
- Finalising an estate
Plus, the six steps you should take in the 1–2 weeks after a death.
Losing a relative or a friend is a difficult time. Most people have never dealt with the administration of someone’s estate and this can turn out to be a complex process as it can be fraught with legal terminology, procedural difficulty and potential pitfalls for the unwary. This guide is intended to help with the basics of what to do when someone dies. First Steps (timescale 1 – 2 weeks) To begin with, the death has to be registered and funeral arrangements should be made. The GP may decide to report the death to a coroner if there is cause to do so for instance if the cause of death is unknown or they haven’t been to the doctor in last 14 days. If the coroner decides that the cause of death is clear the GP signs a medical certificate and the coroner issues a certificate to the registrar stating a post-mortem isn’t required. If the coroner decides a post-mortem is needed to find out how the person died they will only release the body for a funeral once they have completed the post-mortem examinations. The coroner may decide to hold an inquest if the cause of death is still unknown. You cannot register the death until after the inquest but in these circumstances an interim death certificate will be supplied by the coroner which will allow you to continue to administer the deceased’s estate. To register the death, please follow this link. You should opt for the “Tell us Once” service which means that government departments (such as the Department for Works and Pensions)are automatically notified of the person’s death. If the deceased made a Will, you should locate this as soon as possible to see whether they made any funeral wishes and to establish who is responsible for administering the estate. It is important to note that the first Will you find may not be the most recent one. Wills can be revoked and amended by a codicil at any time without the original being marked. You should contact the deceased’s solicitor or bank and request a search to be made to see if the deceased made another Will or codicil. We advise you to complete a Certainty Will Search. Stage One: Ascertaining the estate All of the deceased’s paperwork needs to be gathered together; this includes their last tax return, if applicable. This will allow you to understand the assets and liabilities within the estate. You will need to notify each organisation in order to obtain the date of death balance. If the deceased owned property, you need to check that it is insured and secure. Many insurance policies have a 30-day unoccupancy provision at which point the policy will lapse. The insurance provider should be notified of the policy holder’s death as soon as possible. It is advisable to freeze the deceased’s bank accounts straight away to prevent direct debits or standing orders from leaving the account and to also prevent fraudulent activity. It is also important to ascertain if any gifts have been made within the last 7 years, whether the deceased was a beneficiary of any trusts, whether they have been paying for insurance for another person’s benefit and whether they have a pension or death in service benefit, as all of these may be subject to inheritance tax. Stage Two: Applying for the Grant Once you have obtained all of the date of death balances, you will need to complete the necessary HM Revenue and Customs application and apply for the grant. There are different types of grants, but the most common are: Grant of Probate If there is a Will, the executor/s will need to apply for a ‘Grant of Probate’ to deal with the estate assets. Grant of Letters of Administration If there is no Will, one or more of the people entitled to inherit the estate will need to apply for a ‘Grant of Letters of Administration’ to deal with the deceased’s estate. Inheritance tax Inheritance tax is charged on the deceased’s worldwide assets, if they are UK domiciled. If the deceased’s assets exceed the threshold of £325,000 (known as the ‘nil rate band’), then, unless their estate is exempt, tax is payable at 40% on the amount over this threshold or 36% if the estate qualifies for a reduced rate as a result of a charitable donation. If the deceased was married or in a civil partnership, and the second to die, they may be able to benefit from a ‘transferrable nil rate band’ and claim their deceased spouse’s nil rate band, or a proportion of it on top of their own nil rate band. A Residential Nil Rate Band may also be available if certain conditions are made, the maximum allowance available is £175,000. Other tax-free allowances may be available depending on the extent of the assets and the division of the estate. If the deceased’s estate is taxable, then the grant application will not be processed by the Probate Registry until they have confirmation from HM Revenue and Customs that the tax on the estate has been paid. In some circumstances, not all of the inheritance tax needs to be paid up front, but this depends on the types of assets in the estate. Stage Three: Collecting in the assets and settling the debts Once the grant has been obtained the deceased’s assets need to be collected in, settle any liabilities and distribute the estate to the beneficiaries as per the deceased’s wishes in their Will or under the Statutory Intestacy Rules (the rules that apply when someone dies without a Will). An important part of the estate administration process is ensuring that all of the deceased’s debts are settled. You wish to consider advertising in accordance with the Trustee Act 1925 to protect against unknown claims. Should an executor or administrator decide against placing these notices and any debts come to light at a later date after distribution of the deceased’s estate, they will be personally liable to settle these debts. Finalising the estate and distributing to the beneficiaries The deceased’s income tax affairs need to be settled and a final tax return will need to be submitted to HM Revenue and Customs. Once the liabilities have been settled and all tax has been settled, the estate can be distributed. However, if there is any indication of a claim being brought against the estate by any party then the estate should not be distributed until 10 months have passed since the date of the grant. If the deceased left gifts of money or specific items in the Will, these should be distributed first. The remainder of the estate (known as the residuary estate) can then be distributed to the residuary beneficiaries. The residuary beneficiaries should be provided with a statement of account (known as an estate account) and a copy of the deceased’s Will, if the deceased left one. Timescales It is very difficult to predict the exact period in each situation as some estates can be complex, particularly if they involve business assets or foreign elements. There are also third parties to be dealt with such as banks, accountants and lawyers abroad which can also delay an estate administration.
What to do when someone dies
How we can help
We can help you with all of the above and aim to take the pain out of dealing with a loved one’s estate in a compassionate yet efficient way.
Our Wealth and Estate Planning team includes solicitors who are members of the Society of Trust and Estate Practitioners, Solicitors for the Elderly and the Law Society’s Wills and Inheritance Quality Scheme meaning we are experts in the field of estate administration.
We offer a no obligation initial advice meeting to discuss what needs to be done in administering the estate in more detail and please contact us for an appointment.
When a person who did not have a Will dies, legally their estate must be shared out according to what’s known as ‘Intestacy Rules’. The steps needed to deal with an intestate estate are largely similar to that of an estate with a will.
The main difference is who is entitled to act in the administration and that the grant of probate is referred to as a grant of letters of administration. There are also some limitations on taking possession of assets where there is no will and executor appointed.
Use the assessment below to discover what happens with the proceeds of the estate.
One of the most important tasks in sorting out an estate is dealing with any inheritance tax that is due. This can be a complex process and involves valuing the estate and a lot of paperwork, all of which must be completed within strict timescales.
Our expert team of lawyers can help ease the burden at such a difficult time and ensure the most tax-efficient outcome for you and your family.
Calculations
As a general rule, Inheritance tax is payable on a person’s estates where the net assets exceed the Inheritance Tax threshold (“the Nil Rate Band”) currently set at £325,000.
Inheritance Tax can also be due on lifetime gifts either to an individual or to trusts. Lifetime gifts made within 7 years of death which are not directly taxable themselves (as within the Nil Rate Band) can reduce the amount of the available Nil Rate Band on death.
What is the rate of tax?
Subject to various exemptions inheritance tax on death is charged at either 40% or 36% on the amount in the estate over the available Nil Rate Band. The exact rate of tax depends on the terms of the will.
EXEMPTIONS
Spouse Exemption
One of the main exemptions is the spouse or civil partner exemption where assets can pass from spouses or civil partners without being subject to Inheritance tax. Married couples or couples in registered civil partnerships can now also make use of the transferable nil rate band. This means that on the second death the Personal Representatives can utilise any unused nil rate band from the first spouse or civil partner’s estate.
So, for example, if the first person to die leaves everything to their spouse or civil partner, there will be no inheritance tax to pay on their death because of the spouse exemption. Then on the survivor’s death, the personal representatives will be able to transfer the unused portion of the nil rate band to use against the survivor’s estate, so in this case the nil rate band would be effectively doubled from £325,000 to £650,000.
Charity exemption
Any gifts made to a ‘qualifying’ charity – during lifetime or in the will – will be exempt from Inheritance Tax.
If the Will makes provision for 10% or more of the estate to pass to charity the 36% rate applies to the taxable element of the estate.
Business Property Relief
If the deceased owned and ran a business the value of the business may qualify for Business Property Relief (“BPR”).
The deceased’s share of a business run either as a sole trader or in a partnership will potentially qualify for 100% BPR as will shareholdings in private trading companies.
Shares in quoted trading companies will only qualify for 50% BPR in the event that the deceased owned 50% or more of the share capital. This is rare in practice.
Land and Buildings/machinery used by a company or partnership controlled by the donor may also qualify for 50% BPR.
To qualify for BPR at all however the following criteria must be met:
Relevant Business Property – the business must meet the definition in the Inheritance Tax Act 1984 of relevant business property. In short this means it must be wholly or mainly a trading business rather than an investment business. Sometimes the lines can be blurred as a property investment business is unlikely to qualify whilst a property maintenance business may well qualify.
Ownership period – the interest in the business must be owned for 2 years prior to death (unless replacement for another business owned for over that time frame);
Contract for Sale – there must be no binding contract for sale in place. Sometimes partnership agreements and shareholder agreements including the automatic right for the remaining partners or shareholders to buy the business from the deceased person. This counts as a binding contract for sale in which case BPR is denied. It is important to carefully check these provisions.
Excepted Assets – the availability of BPR may be limited if its assets includes large unallocated cash reserves or investments.
Agricultural Property Relief
If the deceased owned a farm relief may be available at either 50% or 100% depending upon whether it was tenanted or farm personally and subject to how long it has been owned for.
If farmed personally it must be owned for at least 2 years prior to death. If tenants it must be owned for 7 years prior to death.
50% relief is available where the land is tenanted and let on a lease since before September 1995 which has more than 2 years to run at the date of death.
In all other cases (subject to ownership periods) relief is available at 100%.
Woodland Relief and Heritage Relief
Owning a woodland may qualify for Business Property Relief or Agricultural Property Relief depending on the circumstances. If it does not then Woodland Relief may be available.
Unlike the other Reliefs detailed above woodland relief simply postpones the tax on the value of the trees. The value of the land is immediately chargeable to inheritance tax.
IHT becomes payable when the trees are sold at a later date. Any sale of the land and trees will also trigger an IHT charge.
Woodlands relief is also only available if the woodland has been owned for 5 years prior to death or has otherwise been inherited or received via gift rather than purchase.
Conditional Heritage Property Relief
Heritage property includes items of national, scientific, historical, architectural or artistic interest. Subject to various conditions IHT is not charged on heritage property but the relief is conditional upon the items not being sold and the new owner agreeing to allow reasonable public access and details of the property being publicised on HMRC’s website.
If the property is sold or public access withdrawn IHT becomes payable.
Who pays Inheritance Tax and when is it due?
Generally the Personal Representatives will pay the inheritance tax due on death from assets in the estate of the deceased. Occasionally where the deceased has made large gifts shortly before death, the person who has received the gift may have to pay a some inheritance tax.
Inheritance tax is due 6 months from the end of the month of the date of death. The Inheritance tax due on an estate generally needs to be paid before the Personal Representatives can obtain the grant of representation to administer the estate. A notable exception to this is where there is a Property in the estate. The proportion of inheritance tax due on property can be paid in ten yearly instalments (although if the property is sold within those ten years, the whole balance has to be paid when the sale completes).
Valuing an Estate for Inheritance Tax
If you are the Personal Representative of an estate, you have an obligation to correctly value the assets and liabilities in the estate at the date of death.
For example if there is a property in the estate you will generally need to obtain three market valuations at the date of death. These figures are used in the HM Revenue & Customs Inheritance Tax Account which must be competed in order to obtain a grant of probate. If the property later sells for less than estimated it may be possible to reclaim the tax paid.
Shares must be properly valued and regard must be had to the related property rules which can affect valuations of assets.
There are also various restrictions on the deductions of debts due from an estate.
Interest and Penalties
Any inheritance tax unpaid after the 6 months from the end of the month of death begins to attract interest.
Penalties apply to both the initial amount of inheritance tax and to any late instalments.
Any penalties may be payable by the executors personally rather than from the estate funds.
For advice and assistance in valuing the estate for inheritance tax purposes and ensuring the calculations and correct amount of tax are paid please contact us for an appointment.
A beneficiary of an estate, whether by Will or the laws of intestacy, is perfectly within their rights to reject their inheritance. Beneficiaries may wish to vary dispositions of property following death in order to redirect benefits to other family members who are more in need or less well provided for, as well as to save tax.In order to do this there are three options:
1.By Gift
A gift by a beneficiary has taxed consequences if the item has increased in value since the date of death and if the beneficiary dies within seven years of making the gift.
2.By Disclaimer
A disclaimer is a simple deed in which the beneficiary gives up all rights to their inheritance. The inheritance then passes to the next person entitled under the will or on intestacy. With a disclaimer the original beneficiary has no control over who receives the asset.
3.By Variation
A Variation is often preferred to a disclaimer because it allows the original beneficiary to choose who inherits.
The best solution, however, is not always the most obvious, and depends on the individual circumstances of those involved. Our expert lawyers can review the options and provide advice as to the most efficient route available to you.
Our highly experienced team regularly deals with estates involving an international element. Calling on our extensive network of foreign lawyers we have recently assisted with estates containing assets in the following countries:
- Jersey
- Republic of Ireland
- Malaysia
- Ghana
- France
- Italy
- Spain
- Hong Kong
- Singapore
- Turkey
- Jamaica
- St Lucia
- Australia
- USA
- India
We can also assist with resealing foreign grants and sorting out the tax affairs for a non-domiciled individual in relation to the UK element of their estate.
Please contact us for an appointment.
