AO Solicitors’ Wills & Probate Legal Services team provides initial advice and support for you after the death of your loved one. Whether you are an Executor of the Will, a family relative or friend, we can help you with the legal and administrative steps that you need to take following your loss.

From drafting wills to challenging them, and from minimising inheritance tax to handling your loved one’s estate, our Wills & Probate Legal Services team will make sure the right people (and not the tax man) get the right gifts. We can also as your executor or administer an estate.

You might also consider a living will to say what happens if you are left in a coma.

Wills are increasingly challenged. For example, if you gave up your job to move in as a carer for your mother in law and then she left everything to charity you might have a claim.

What to do after a death

With the perfectly normal shock, pain, anger, guilt, sadness, sleeplessness, numbness or hallucinations you can expect for months to come it might not be in your interests to handle the whole estate yourself. We are on hand to walk you through the process, taking on as much or as little as you wish. If this is your first time to lose a relative you may have no idea what to expect so we try to explain below what really happens.

The Body

Usually the deceased will be in a hospital bed or home toilet.

In hospital you often have enough warning to say goodbye and may notice restlessness,  confusion, temperature and breathing fluctuation and reduced appetite for visitors and food and water. They often ask you to tidy up their affairs and sometimes tell you they have seen dead relatives waiting for for them. After they stop talking and their extremities go blue and breathing gets congested, they can still hear your last words for a while, so you can tell them it is OK to go now.

Afterwards you have chance to stay with them while the chaplain is called to say a few words. Staff will then take them to the mortuary. You collect personal effects and arrange an undertaker to take them to a funeral parlour. A doctor will give you a death certificate. You can consent to a post mortem. If the doctor cannot sign a death certificate they will refer it to the coroner for a post mortem. For a cremation you will need to pay a second doctor to sign the death certificate.

For a death at home the GP should be called to issue a death certificate if they were expecting it otherwise to send the deceased to the mortuary for a post mortem, typical with young people who tend to die from trauma.

You can send a doctor as your representative to observe the post mortem. If you are concerned about how they died in hospital you can tell the coroner to use a pathologist from elsewhere. If the death was in prison, at work or suspicious there will be an inquest. The coroner can give you certificates to deal with finances, funeral and registration as there is no death certificate with the coroner. With sudden deaths the police will need to be involved. Once at the funeral parlour you can consent to embalming. Each religion has its own traditions that often take place at home such as washing.

The paperwork

You must register the death within 5 days or 42 days for a stillbirth. It may be useful to take an NHS card, marriage certificate and birth certificate with you to the Registrar, who will want to know name, address, dob, occupation and state benefits, and name, address, dob and occupation of surviving partner.

For stillbirths the mother will be asked extra questions about date of marriage and how many children she has had. If no post mortem the Registrar will give you a green form allowing burial or cremation. You will also get a DB8 form to stop any social security benefits.

You can then buy death certificates to help administer the estate. If you have the deceased NINO you may be able to notify government bodies just once via the Registrar’s “tell us once” service.

The funeral

Then you will arrange the funeral. It is up the executor whether to bury or cremate or what the arrangements will be, even if the deceased expressed wishes. You can use a funeral director or run your own funeral via the council. There is a Social Fund funeral payment for some benefit claimants and paupers funerals are arranged by the NHS or council if nobody else steps in.

The will

Next you should find any will and the executor, or if there is no will, apply to the Probate Registry.

A will must be in writing, signed and have two witnesses. It should say what you have, who gets it, who looks after any children under 18 and who are your executors. It can be stored at home, in a bank, with us or even at the probate registry.

Independent storage prevents relatives claiming an old revoked version is the last will, or that “there wasn’t a will” which would allow intestacy to give them more by blocking a gift to someone else. Wills should be updated to reflect new property, children and relationships. You may also need a new will by virtue of a relative named in it dying.

The benefits of a will include the potential ability to minimise inheritance tax and to avoid the rules of intestacy which could disinherit loves ones such as unmarried partners or carers.

Solicitors can help avoid slipups around issues such as property no longer existing, beneficiaries dying before you or challenges to the will. A will itself usually costs only a few hundred pounds as most fees comes from estate planning and handling probate. Legal aid is available subject to income requirements for over 70s and the disabled.

Probate

The estate is handled by the personal representative (“PR”), which is the executor in the will or an administrator, typically next of kin or a solicitor, approved by the probate registry. An executor gets probate whereas an administrator gets “letters of administration”.

An unmarried partner not named as executor in a will will be unlikely to qualify as an administrator either. The PR gathers debts in, pays debts out, closes accounts, informs interested parties and returns official documents, pays any tax (eg, inheritance tax on excess over £325,000) and makes any gifts.

They should advertise for creditors and wait two months to avoid becoming liable personally. They should also wait another four months in case a dependant comes out the woodwork to claim financial provision. The only way to avoid probate or administration is if the estate is small, or only cash and possessions or joint property.

We can handle the will or probate for you. Although most people could handle a simple estate eventually, bereavement is not a good time to become your own probate lawyer.

There are often complications with releasing assets in time to pay debts, and any land may need conveyancing. PRs usually need a solicitor to help when the will is vague, you have been married more than once, a trust is needed (eg child beneficiaries), property is abroad, a business is owned or someone challenges the will, eg under the Inheritance (Provision for Family and Dependants) Act 1975 by dependants who say they did not get enough in the will.

 There can be substantial paperwork, arguments with the tax man and creditors and debtors. Then there are the fine touches like redirecting mail to you. We can also register with the Deceased Preference Service to reduce the chance of identity theft or junk mail.

Cashflow

Anyone wanting to inherit a mortgaged property will have to pay off or inherit the mortgage too. Banks typically release up to £5,000 and maybe more for a funeral before you have probate, which takes at least a month.

The biggest challenge is inheritance tax, which needs paying before you get probate, so before you get the money to pay it with. We can sometimes use bridging loans or legislation to get past this obstacle.

Fees come out of the estate and legal aid is sometimes available.

Inheritance

Who gets what is determined by the will or if there is no will, the rules of intestacy, or a court if the will is challenged.

Intestacy rules share the estate between close relatives in a specific order with specific sums. If there are children the spouse gets personal effects, the first £250,000 and a life interest in half the rest with the other half going to other relatives and your half of the capital going to them when you die.

If there is over £450,000, no children, but parents, the spouse gets personal effects, the first £450,000 and a life interest in half the rest. If there is over £450,000 and no children or parents, the spouse gets personal effects, the first £450,000 and half the rest immediately.

With no spouse children get the lot. With no spouse, children or parents, the estate goes to siblings then nephews & neices, then grandparents then uncles and aunts.

Even if there is a will beneficiaries can agree to change the will within two years, for example to reduce tax or unfairness.

Benefits

There may be bereavement benefits you can claim if your spouse paid enough national insurance. If you are not a pensioner you might qualify for bereavement payment within 12 months, and widowed parents allowance or bereavement allowance within 3 months. Otherwise you might qualify for a higher state pension.

Wills & Probate Legal Services Case Studies

1. Samantha divorced her husband but stayed close to her mother in law Lucy, who fell ill. Samantha resigned from her high flying city job to move in to Lucy’s farmhouse as her carer until Lucy died 10 years later. Lucy always said she treated her as her daughter and the place would be hers when she’s gone. Samantha can apply for financial provision to override the will or intestacy rules. The court might give her rent from the farm, its sale price or more likely, transfer it to her so she can stay.
2. George wanted to give his house to his children but they have not always been so wise with money. Some are not yet 18. He wishes they were as sensible as their uncle Pete. George makes Pete a trustee in his will to look after the house until everyone is 25.