The Legal Process
After every death, to some degree, a legal process must be completed. In England and Wales, it is called probate. For families who have lost a loved one abroad, it is helpful to be prepared and well-informed. However, do not rush. In the immediate aftermath of a death, urgent concerns include repatriation, arranging a funeral and dealing with your own grief. Managing bank accounts, property, debts and so on can wait, for a few weeks if not longer.
This guidance does not cover issues of repatriation, insurance claims and other immediate concerns after a death abroad. It deals with the legal process that must come afterwards.
The probate process in brief
Probate is, broadly, the process of dealing with a deceased’s will (if they made one), collecting money from banks, selling property, paying debts and distributing the deceased’s “estate” to the right people, often close family members. The length, complexity and expense of the process varies. For relatives who have died abroad, and particularly those who made their home abroad, it may be particular complicated.
The first step: the will
Did the deceased leave a will? There is no mandatory central register of wills, so the only way to find out is to ask relatives, check with the deceased’s solicitor (if any), and look at home. Immediately after a death, only one part of the will is important: wishes regarding a funeral, if any. This is the only part of a will which is not binding, but relatives often choose to honour the deceased’s wishes.
The second step: where the process takes place
When the time comes to begin the probate process, you should first understand where the process has to take place.
The concept of “permanent residence”, also known as “domicile”, is crucial. If a person was born and had their permanent residence in England, their domicile will probably be England. Travellers who spent a few months abroad, with the intention of returning, will probably be domiciled in England. For most, the question of domicile is easily answered. However, in many cases, for example if the deceased was born in England but moved permanently to another country, the situation may be less clear. Unfortunately, the rules concerning domicile can be complicated, and legal advice may be required.
Once the question of domicile is settled, then comes the question: where are the deceased’s assets? Generally, “immovable” assets, such as houses, are subject to the legal process in the country where they are situated, and “movable” assets, such as money in bank accounts, may be dealt with through the legal process of the country where the deceased was domiciled.
For example, if the deceased owned a house in Chile, a will made in England may not apply, and the house must be dealt with according to Chilean law.
It is not unusual for the probate process to take place in two or more countries.
If you are unsure about domicile, or if the deceased owned any kind of assets abroad, it is sensible to seek legal advice, first in your home country, then, if necessary, abroad.
The probate process in England and Wales
If the deceased was domiciled in England or Wales, or if they owned assets here (particularly “immovable” assets), then the probate process must be completed in England and Wales, regardless of whether a similar process must also take place abroad.
In brief, the process can be broken down as follows:
1. Is there a will? The people responsible for the process (the “personal representatives”) are determined by the will, if there is one, or by the rules of “intestacy”. The people responsible are called “executors” if there is a will, or “administrators” if there is no will. Don’t worry about this jargon; the process is largely the same.
2. What are the deceased’s assets and debts, and what is their value? The personal representatives, or someone appointed to act on their behalf, should contact banks, cancel credit cards, check for debts, work out the value of the deceased’s house, and so on.
3. The grant of probate and inheritance tax. Once the valuation of the estate is complete, then comes a key part of the process: the application for grant of representation, more commonly known as a grant of probate. The grant is an official, stamped A4 document which gives the personal representatives the authority to collect funds from banks and sell the deceased’s property. Except for small accounts or joint accounts, banks have to see this document before they will release funds. For high value estates (very broadly, over £325,000) inheritance tax may have to be paid before the grant will be issued.
4. Collect funds and sell assets. Once the grant has been issued, the personal representatives can collect funds, sell assets and pay debts.
5. Distribute the estate. Finally, the estate (after debts and expenses) must be distributed according to the will, or the rules of intestacy if there is no will.
The process in Scotland and elsewhere in the British Isles
Scotland has a different legal system from England and Wales, and so do Northern Ireland, the Isle of Man and the Channel Islands. This guidance relates to England and Wales only, though most of the principles on this page apply to all jurisdictions.
Do it yourself vs professional probate assistance
It is perfectly legal to conduct the probate process yourself, or with assistance from a family member. In fact, up to 50% of probates are conducted without professional assistance, and this percentage is rising. Often, the process is fairly simple and “procedural”, with assistance available from the Probate Service, online tools, books and free guidance on the internet.
However, many prefer professional probate assistance, and with good reason. You can hand over responsibility and leave a professional to deal with any difficult legal issues, such as domicile, foreign assets, and so on.
If seeking professional probate advice, do what many consumers do not do and shop around. The cost of probate services ranges from the reasonable to the ridiculous, often many thousands of pounds. If a fixed fee is not offered, push for one. A probate solicitor is one option, but many non-solicitor probate experts are equally (if not more) experienced. STEP qualification is a good indication of expertise. As always, word-of-mouth recommendations are helpful.
Some progressive probate professionals offer a range of fixed fee packages, often including use of online tools, so you can manage the process yourself, with the reassurance of professional support. This can be the ideal balance between support and cost-savings.
1. A solicitor is named as the executor in a will. Do they have to be involved? Families often want to deal with the process themselves, or at least not be tied to a particular solicitor. If a solicitor is named as an executor in the will, the implication is that the deceased chose that solicitor for a reason. The solicitor is not obliged to step down (known as “renouncing”), but they are obliged to consider the best interests of the estate. Most will renounce when asked, if they are satisfied that the probate process is in good hands. Open a dialogue with the solicitor, explain why you are asking him or her to renounce, and take it from there.
2. How long does it take? Probate can take anywhere from a few weeks to (in rare cases) a couple of years. Typically, it takes between 2 to 6 months from start to finish.
3. How much does it cost? The cost of probate varies hugely depending on the complexity of the estate, legal difficulties, delays and, most significantly, whether you need legal advice and the cost of that advice. It could cost just a few hundred pounds, or it could cost thousands. In all cases, these expenses can be claimed from the estate, so family members are not left out of pocket.
Probate invariably comes at one of the most difficult times of life: when you have lost a loved one. Most people have to tackle it just once or twice in a lifetime, which is why it can be unfamiliar, daunting and stressful. With this in mind, consider these golden rules:
1. Be aware that it can take a long time: a few months is normal.
2. Communicate and compromise. Probate can put a strain on families, particularly when significant sums are involved. Do not assume that this will not apply to you and your family. Communicate, be open and, where possible and if necessary, compromise.
3. Consider delegating. Even if you are responsible for the probate process, do not be afraid to delegate. For example, to an adult child, an experienced friend or a probate professional.
4. Seek advice where necessary. More people are conducting the probate process themselves without any problem at all, but, if you find yourself outside your comfort zone, or if there are questions arising from domicile, foreign assets and so on, seek professional advice. It could save costs and hassle down the line.
About The Probate Wizard
The Probate Wizard is a groundbreaking online DIY probate tool, the first of its kind. It guides you through the process step by step, with guides, tips and support. The forms you need are accurately compiled, along with detailed probate reports and guidance explaining how to apply for a grant of probate and what to do next. Contact The Probate Wizard for free.