What to Do When Someone Dies

Jenny Walsh

Introduction

When a loved one dies, getting to grips with what you need to do can seem bewildering. The first question clients often ask us is, what practical issues should we be dealing straightaway?

While the key immediate steps include registering the death, locating any will and arranging the funeral, thought also needs to be given to subsequent matters. For example, the value of all estate assets will need to be quantified, documents gathered and legal and tax-related matters complied with.

With specialist professional help, you can comfortably navigate what can otherwise be a challenging and stressful process. The expert probate and estate administration team at Osbornes Law have years of experience advising families, executors and beneficiaries with reassurance and compassionate support.

Immediate Steps Following a Death

Confirming and Registering the Death

Following the death of a relative, you will need to register the death. It is important to know that the legal process for death registrations has recently changed and you will not be given the doctor’s medical certificate of cause of death (MCCD) straightaway.

From September 2024, a medical examiner must now review every death (unless it has been referred to the coroner) before the death can be registered.

What this means practically is that the doctor will complete and sign the MCCD certifying the cause of death, and send it straight to a medical examiner for review. The medical examiner will then contact you to explain the cause of death and, if you wish, answer any questions.

The medical examiner will also tell you when you can register the death. You then have up to 5 calendar days to register the death with the local registrar in the area where your loved one died.

If your loved one’s death was referred to the coroner, registration of death cannot take place until an inquest has concluded. You can read about inquests here.

Registration of death

If you’re unsure where the local register office is located, you can find it here. It is sensible to contact them before going in person as may need to take your relative’s documents (eg their passport, birth certificate and marriage certificate). You can then book an appointment to register the death.

When the death is formally registered, you will be able to buy copies of the death certificate (currently £12.50 each). If you need more copies later on, you can buy them online.

We understand that recent changes to registrations of death may add to your distress. Our specialists lawyers are available to guide you and your family through this initial stage, including cases of sudden or unexpected death and deaths abroad. Contact us on 020 7485 8811.

Handling the Deceased’s Estate

How to find a will

One of the key tasks locating the will. It’s not unusual for someone to make successive wills, which means finding the latest will is vital. Unfortunately, not everyone tells their relatives where their will is located – in which case a bit of creative searching will be necessary.

If you’re struggling to find the will, you have several options:

• Searching any safes, locked drawers or other secure areas in the house or any other properties your relative may have owned. If appropriate, seek permission before conducting a search to avoid the risk of trespass, family tensions etc
• Make enquiries of solicitors who acted for the individual in recent years – they may have it in storage and you can as for its release. Make enquiries of other solicitors local to where the deceased lived, in case they changed solicitors.
• Contact the deceased’s bank to see if they have it in storage
• Search the National Will Register. Thousands of wills are registered every year (though not compulsory) and (at a fee) you can search the register to see if your loved one’s will has been registered. This search can also be extended to cover searching with local solicitors for an additional fee.

Our lawyers can help locate a missing will. If you’re sure there is a will but you’re unable to find it, let us know and we can make enquiries. But if no will can be found – it will be assumed your loved one died intestate and the statutory rules of intestacy will apply.

The will’s terms

The terms of a will can be simple and straightforward, or complex and wide-ranging. Once the will is located, we can check its validity; who the executors are; and review the provisions of the will. Wills are not always drafted clearly and professionally, potentially making it challenging to determine the person’s actual intentions.

However, correctly interpreting and carrying out the deceased’s wishes is a crucial responsibility of the executors. Expert legal assistance is important to ensure a will is properly interpreted, particularly those containing complex or ambiguous terms.

Dealing with Intestacy where there is no will

When someone dies without leaving a valid will, the administration of the estate will be conducted according to the statutory intestacy rules. These rules dictate who is entitled to apply for the grant (Letters of Administration); and who will inherit as beneficiaries.

Appointing administrators – If you are the surviving spouse or civil partner, you top the list of who is legally entitled to act as estate administrator (the Administration for Estates Act 1925). In the absence of a spouse/partner, the surviving children or grandchildren can apply, or if no children or grandchildren, a parent, siblings then grandparents (in that order).

If there are no surviving close relatives, we can advise who else may be able to apply for the grant.

Care must be taken when there is a minor who will inherit. Two administrators are usually required.

Beneficiaries – There is a strict order, set out in Inheritance and Trustees’ Powers Act 2014, for who inherits under an intestacy, depending on whether the deceased is survived by a spouse or civil partner:

• A surviving spouse/partner inherits everything if the deceased left no children. If the deceased has left children, the surviving spouse/civil partner inherits all personal chattels plus a statutory legacy of £322,000. The remainder of the residuary estate (if any) is split in two – half going to the surviving spouse/civil partner and the other half either passing outright to adult children or held on trust for the deceased’s children until they reach 18 years

• Where the deceased left no surviving spouse/civil partner, the order of entitlement to inherit the estate is children and/or grandchildren (including adopted); then parents; siblings; half-brothers and half-sisters; your grandparents; then your aunts and uncles. Where no surviving relatives can be found – the estate passes to the Crown though this is quite rare.

The intestacy rules establish a clear framework to work to, but we know that its practical application can be challenging at time. With blended families and family members frequently living and working abroad, establishing who is entitled as beneficiary and minimising the risk of potential disputes can be tricky.

With the support of the specialist probate solicitors at Osbornes Law, we can guide you though the potential complexities and ensure a smooth estate administration.

Applying for Probate or Letters of Administration

Save for the smallest of estates, the administration of an estate cannot be undertaken without a grant of representation. The two main grants are the Grant of Probate and Letters of Administration and are issued by the probate court.

Note that there is a key difference in the two grants in their legal effect. The Grant of Probate confirms the executor/s’ authority (their authority is derived from the will itself), while the Letters of Administration grants the PRs their legal authority.

What is Probate?

The estate administration, whatever the nature of the grant, is commonly known as ‘probate’. The grant is required because without it, the personal representatives (PRs) – the executors/administrators – may be unable to access money and assets in the estate. A grant is also needed to sell or otherwise dispose of land and property and other assets held in the name of the deceased.

But until the grant is received from the court, the PRs will not be able to deal with other assets, save for assets of low value. Before a grant is received, the PRs may still be able to access certain assets, including cash accounts of a minimal value and life assurance payouts.

Accessing small amounts can be helpful when there are immediate costs to the estate, Unfortunately, a backlog at the probate court means months-long delays in obtaining the grant. This has a knock on effect for PRs trying to sell property or access larger sums of money held in financial institutions.

You can get ahead by applying for the grant as soon as practical.

Once we have sufficient information to value the estate, we will prepare the tax return (if necessary) and the application to the probate court.

How to apply for Probate or Administration

The steps for apply for a grant of probate and letters of administration are similar. We will need to provide an estimate of the value of the estate; and calculate any inheritance tax (IHT) due. IHT, or at least the first instalment, will need to be paid before the application for the grant can progress. The banks will release funds directly to HMRC for this purpose. We can help with your Inheritance Tax Return.

To estimate the value of the estate, we will need information about the deceased’s money and assets, such as bank accounts, investments, property, shares, business interests, as well as any debts in the estate.

We will also need to know about any lifetime gifts made by the deceased in the 7 years prior to death. We suggest you gather as many details as possible, including bank and other financial accounts, shares, policies, any property and business interests and valuable chattels such as artworks, antiques and so on.

The application

Applications are now usually made online, though there are some exemptions that must be made via post., The fee is currently £300 (nil if the estate is £5,000 is less) and the application must be accompanied with the will and any other documents in support.

The process can be frustrating because of the need to first value the estate, as well as calculating and paying IHT and completing the relevant tax forms. Furthermore, it’s not uncommon for a probate application to be unnecessarily delayed because of human error in the application or important information is missing.

Specialist support from experienced probate solicitors relieves much of the pressure on family members, minimises the risk of errors and speeds up the process of obtaining the grant. The team at Osbornes Law are available to do the hard work on your behalf.

Managing Inheritance Tax (IHT) and Other Taxes

Understanding IHT obligations

Comparatively few estates are liable for IHT on death, but where IHT is a consideration – great care is needed to ensure IHT calculations are accurate and that all available reliefs and exemptions and accounted for.

The Labour government has frozen the current IHT threshold of £325,000 until 2030. This is the nil rate band (NRB) below which the value of the estate is charged 0%. Where an estate is valued higher than the NRB at the date of death, IHT is charged on the excess at 40% – subject to the following reliefs and exemptions:

• Spousal exemption – Any gifts to a spouse (or civil partner), before or after death, are exempt from IHT if domiciled in the UK
• Unused spousal NRB – On the death of the surviving spouse, the estate can claim the proportion of NRB that they did not use – effectively increasing the total available NBR up to £650,000
• Main residence allowance – No IHT is payable on the value of the deceased’s home (up to £175,000) if it passes to their direct descendants. If the estate is valued in excess of £2m, the allowance is reduced. As above, any unused residence nil rate band can be transferred from one spouses estate to another.
• Charity exemptions – any gifts to charity in the will are exempt from IHT; and if the deceased has left more than 10% of their estate to charity – any IHT due will be charged at the lower rate of 36%
• Business property relief and agricultural relief – available where, respectively, the estate comprises business interests and or agricultural land and property. Qualifying assets are charged at 50% or 100% of the usual IHT rate
• Wills trusts – Money or property left for the beneficiaries under a trust are ring-fenced from IHT liability

So, while the £325,000 base level above which IHT is potentially payable is relatively low – there are several ways an estate could claim reliefs and exemptions to reduce or potentially avoid IHT liability.

Expert legal help

IHT and how the various exemptions and reliefs work together is complex; and arriving at the correct calculations can be challenging without expert assistance from probate lawyers. The executors risk paying too much IHT – or find themselves presented with a demand for more tax if they underestimate the tax due.

Various IHT forms and documents also need completing depending on whether, for instance, the estate is an ‘excepted estate’, or where tax is due on a trust, and to correct a previous IHT account.

The team at Osbornes Law are experienced in dealing with HMRC on a regular basis on IHT and other tax matters and we strongly recommend you contact us about any IHT issues you may have.

How can we pay IHT?

The PRs are personally responsible for the payment of IHT, yet many PRs find it financially difficult or impossible to fund the bill upfront. It’s not difficult to understand why: as the grant is not issued until IHT has been paid, it may not be possible to free up funds from the estate to pay the IHT if the estate is mainly made up of property or shares which cannot be sold until the PRs have the grant

Banks will release funds directly to HMRC to pay some or all of the IHT due.

Until recently, PRs often had to resort to expensive commercial bridging loans to pay the IHT bill. But that is no longer necessary – HMRC can now postpone payment of IHT in response to an application for a grant on credit (subject to interest). HMRC will need to be shown that the estate is solvent and when the tax will be paid.

So, if you’re concerned about getting a potential IHT bill paid – discuss it with us and we can consider making an application to HMRC to delay payment.

Other tax matters

The PRs might need to consider capital gains tax (CGT) and income tax – as at the date of death and then during the estate administration itself. They will have to settle the individual’s outstanding tax liabilities on death and account for those liabilities in the tax accounts to HMRC and in the estate accounts.

The PRs are also liable for income tax on the income received from estate assets, such as , rental properties and investments, during the period of the administration.

CGT may also arise where a sale of an estate asset, such as artwork or property, makes a profit. During an estate administration, CGT is calculated on the difference between the market value of the asset at the date of death and the eventual sale value of an asset. If, for example, the deceased owned a holiday home with a market value of £400,000 on death, and it sells a year later for £500,000 – CGT is potential payable on the profit of £100,000. The rate for 2024/25 is 24% for all gains made by PRs

Various exemptions and reliefs are available depending on the nature of the asset. For example, Principal Private Residence Relief may be available, but this depends whether the deceased lived there at the date of death – and the extent of their interest in the property.

Administering the Estate and Distributing Assets

• Identifying and Valuing Assets
  • Process of identifying assets, including property, savings, investments, and personal belongings.
  • How lawyers can support asset valuation to ensure fair distribution.

It is the PRs’ responsibility to identify and call in all estate assets and work out their probate value. Any debts of the deceased at the date of death much also be identified. The value of the net estate is the total value of the assets less any debts as at the date of death.

Those assets typically include, for example:

• Bank and building society accounts, investments and premium bonds: The financial institution can the valuation or account balance as at the date of death
• Shares: shares may be more challenging to value, particularly if in a family business. A professional valuer or stockbroker may be required to provide a probate valuation
• Land and property: Valuation of the deceased’s interest will depend on the nature and extent of their share, and any legal charges
• Valuable chattels, such as artwork, jewellery, collections and antiques – professional valuations may be necessary
• Digital assets – digital assets may be valuable and demand a proper valuation

We regularly work alongside professional valuers and experts who provide probate valuations for PRs. Please don’t hesitate to mention any collections or other assets that you believe may be valuable and should be properly taken into account.

Paying Off Debts and Liabilities

Contrary to popular belief, a person’s debts are not automatically wiped out on death. They are taken into account when valuing the estate – and the PRs must ensure the debts are paid off.

All creditors much be contacted whenever possible, for example a residential care home, mortgage lenders, credit card companies, banks, and personal creditors, such as friends and business associates. The value of any debt as at the date of death must be determined and paid off out of estate assets when they are available.

Delays to a grant being issued mean debts may not be payable for months, or longer. However, creditors generally have six years to take legal action to recover a debt.

There may be complications if, for example, the estate is looking insolvent or the extent of a debt is in dispute. It is vital to seek expert professional support from lawyers experienced in dealing with estates and estate creditors and potential problems that can arise.

• Read here for more information about dealing with estate debts

Distributing the Remaining Assets

Personal representatives have the legal responsibility to ensure the net estate is distributed according to the deceased’s wishes in the will; or, where there is no will, the intestacy rules. This means identifying and locating any beneficiaries and classes of beneficiaries entitled.

Usually, all beneficiaries are ‘present and accounted for’ – but not always.

If there are missing beneficiaries, or you suspect a potential beneficiary could make a claim against the estate, significant problems can arise. For the PRs, it is critical to take precautionary steps to protect them and the estate from a potential claim against them personally.

Specialist probate lawyers play an important part in ensuring estate distributions are legal and in line with the deceased’s wishes. We also have a vital role in protecting the PRs and the estate from potential legal claims from unknown or missing beneficiaries.

We can advise you on what reasonable steps ought to be taken, including:

• Placing notices in The Gazette and in appropriate local newspapers
• Asking genealogy firms to trace a complete family tree of the deceased
• Commissioning tracing agents to help locate a beneficiary
• Taking out missing beneficiary insurance
• Securing written indemnity from all other beneficiaries

Without reasonable attempts being made to trace a missing or unknown person, it will be highly risky to make distributions. However, it is possible, if no other options are left, to ask the court for a determination on how the estate should be distributed.

Resolving Disputes or Conflicts Over the Estate

Estate disputes can be distressing, yet the number of probate disputes and contested wills seems to rise every year. Fortunately, most disputes are resolved with careful negotiation and, sometimes, mediation. The most common causes for disputes include:

• Contested wills – such as on the grounds of lack of capacity to make a will, want of knowledge or approval or duress
• Disagreements over asset distribution – Eg a property dispute or a family conflict over a promise made to a non-beneficiary that they would inherit an asset
• Dependency claims – a dependent child of the deceased may, for example, claim that the will has not provided adequate provision

Our probate team works alongside the specialist contested probate team at Osbornes Law to support PRs and beneficiaries who face a legal claim.

How Lawyers Can Help

If a probate dispute arises, we can help the parties negotiate a resolution sensitively with the aim of resolving matters as quicky as possible. In many cases, mediation with a specialist and independent mediator is highly effective in identifying the key issues and facilitating a fair agreement between the parties in dispute – indeed, the courts actively encourage disputed parties to go to mediation. We can help arrange for mediation if appropriate – providing legal guidance throughout.

We always aim to achieve a fair and timely resolution for clients and to minimise the stress these disputes can cause. Where it becomes necessary to protect the interests of the PRs and estate beneficiaries, we will be ready to take court action to ensure a just result. We will be ready to represent our clients in court and support them throughout the process.

Complex Family Situations (e.g. step-families)

We are acutely aware that today’s family structures are often complex. Step-families and blended families, subsequent marriages, adoptions and cohabitation – and families living and working internationally – pose significant challenges for the PRs.

When looking at the deceased’s family structure for inheritance purposes we help identify all who are entitled to inherit under the will or intestacy, however complicated the situation.

We also need to account for anyone who may have been financial supported by the deceased at the date of death, for example a grandchild who was being funded through university or a disabled relative being financial supported at home or in care. They may have a statutory right to make a claim against the estate for reasonable financial provision.

Our specialists will provide the robust legal guidance you need to make sure all beneficiaries are identified before the estate can be distributed.

Handling Foreign Assets or International Wills

We frequently deal with estates where the deceased’s assets are located in other jurisdictions. Cross-border estates present challenges: the deceased may have left a separate will dealing with foreign assets, in which case the foreign will must be located and arrangements made for it to be admitted to probate or dealt with in the relevant country.

Crucially, we will need to carefully consider the terms of the English will to determine the deceased’s intentions regarding assets here and abroad, eg if the will states their preferred choice of law.

If there is no foreign will available, we may need to determine how the inheritance laws in the other country apply. At the outset, we must determine the domicile of the deceased – that is, which country’s jurisdiction applies to the individual. The country of domicile dictates how the estate is treated for IHT purposes.

Our specialist lawyers have good working connections with lawyers in other countries and are able to tap into their skills when we’re instructed in cross-border estates. For more information about foreign estates or wills read here.

Why Choose Our Firm for Estate Administration?

At Osbornes Law, our probate team are known for their compassionate but robust approach to probate. We are mindful that ensuring a smooth estate administration is in the interest of the PRs and the beneficiaries.

We work hard to guide clients throughout the process to ensure the experience is as stress-free as possible and to support grieving family members through what if often an alien process.

Our lawyers are highly ranked as leaders in high net worth wills and probate in UK national legal directories. We are also registered Trust and Estate Practitioners (TEP) and registered Contentious Trust and Probate Specialist (CTAPS). Our lawyers also include members of the Society of Trust and Estate Practitioners (STEP) and Solicitors for the Elderly.

Contact Us for Support

Contact us today for a consultation with our specialist probate lawyers who can advise you on what to do next. To book an appointment with an expert contact us by:

• Filling in our online enquiry form; or
• Calling us on 020 7485 8811