SAIF Golden Charter

Personal representatives: Tips, tricks and pitfalls

An individual or individuals with the authority to deal with a person’s affairs after their death are called personal representatives and are charged with administering the estate. There are two types: executors (someone specifically named in the will) and administrators (when there is no will or no valid appointment of an executor has been made).

Acting as a personal representative is a serious responsibility. It is their job to ensure that the affairs of the deceased are correctly administered. At a time when they are possibly still feeling the loss of someone close to them, it’s easy to feel lost and confused by what needs to be done.

Obtaining the Grant of Representation

The Grant of Representation is the formal appointment of the personal representatives and allows them to sell and collect in assets in the estate.

Once the personal representative has identified all of the assets and liabilities in the estate, reported the value to HMRC (if required) and settled any Inheritance Tax (IHT) liability, they can apply for either the Grant of Probate if there was a valid will or Grant of Letters of Administration if there was not.

This will involve submitting the will (if any), application form, IHT paperwork and the appropriate fee to the Probate Registry. It is possible to apply for a Grant without the involvement of a solicitor, but this is the most common aspect of the administration of an estate where personal representatives seek legal advice.

We recommend four or five sealed copies of the Grant should be obtained because institutions are rarely prepared to accept certified copies. Currently the Probate Registry takes in the region of six to eight weeks from the submission of the completed application to issue the Grant.

Assets passing by survivorship

A number of the deceased’s assets can be administered without having to wait for the Grant. The process of survivorship allows for bank accounts and property that are held in joint names to automatically pass to the survivor. Financial institutions will do this automatically upon notification of death, but in cases of property the Land Registry will require an application to change the register.

In the case of jointly-held property, just because a property is held between two people does not mean that it will pass by survivorship. There are two types of ownership: Joint Tenancy where the property passes automatically to the surviving owner regardless of the terms of the will; and Tenancy in Common where the property passes in accordance with the will.

If the type of ownership is not known, this is another area where we recommend seeking legal advice.

How long until distribution?

The timescale for administering an estate and getting to the point of distributing to beneficiaries can vary significantly. If there is any possibility of an estate being disputed you should wait at least six months from the date of the Grant for any potential claim to be raised. Where IHT is payable you should wait for clearance from HMRC before making final distributions.

Straightforward estates can be wound up in three to six months where matters are simple, but estates can frequently take six to 12 months or longer. Personal representatives always have the option of making interim distributions to the beneficiaries where they are in a position to make some payment but not yet able to finalise the estate completely.

Has probate been affected by COVID-19?

It usually takes about three to four months to obtain probate. However, solicitors are warning that even simple estates are taking months longer than normal to sort out.

At the height of lockdown some solicitors were unable to access their offices to get physical wills, while obtaining details of bank accounts and investments has been fraught with delays.