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Practice notes

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Q&As

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Administration actions—removal of personal representatives—practice and procedure

Coronavirus (COVID-19): As announced on 17 April 2020, the President of the Family Division, Sir Andrew McFarlane, authorised District Probate

Entitlement on an intestacy

The intestacy rulesIf the deceased died totally or partially intestate, Parts III and IV of the Administration of Estates Act 1925 (AEA 1925) apply

Making a Will

CORONAVIRUS (COVID-19): The formal requirement for a valid Will to be witnessed in the presence of two witnesses is to be relaxed (with retrospective

Personal representatives—powers, duties and remuneration

Personal representatives' dutiesThe Administration of Estates Act 1925 (AEA 1925) states that personal representatives (PRs) must:•collect and get in

Practice notes

Wills in Scotland—overview

CORONAVIRUS (COVID-19): Some of the formal requirements for a valid Will in Scotland have been relaxed during the coronavirus pandemic. See News...

Produced in partnership with Jacqueline Leslie 13th Oct

Scottish Law

Practice notes

Appointment of personal representatives

Coronavirus (COVID-19): As announced on 17 April 2020, the President of the Family Division, Sir Andrew McFarlane, authorised District Probate...

9th Oct

Practice notes

Jurisdiction in probate matters

Coronavirus (COVID-19): As announced on 17 April 2020, the President of the Family Division, Sir Andrew McFarlane, authorised District Probate...

8th Oct

Practice notes

The type of grant needed

Coronavirus (COVID-19): As announced on 17 April 2020, the President of the Family Division, Sir Andrew McFarlane, authorised District Probate...

8th Oct

Practice notes

Trustees—duties

Nature of dutiesThe difference between a duty and a power is:•the performance of a duty is obligatory•powers are to a greater or lesser degree...

29th Sep

Practice notes

Use of foreign Wills

Many individuals have international connections that need to be considered when advising on succession planning. For example, they may have been born...

Produced in partnership with Russell-Cooke Solicitors 28th Sep

Practice notes

Estate administration—foreign assets and domiciles

Coronavirus (COVID-19): As announced on 17 April 2020, the President of the Family Division, Sir Andrew McFarlane, authorised District Probate...

26th Sep

Practice notes

Introduction to Wills

Definition and purpose of a WillIn general terms, a Will is a document made in accordance with the formal requirements laid down by section 9 of the...

26th Sep

Practice notes

Removal, renunciation and retirement of personal representatives

The rights of a person appointed executor by a Will cease if they:•die without having taken out probate•fail to appear on being cited to take out...

26th Sep

Practice notes

Executors, trustees and guardians—who are they?

ExecutorsAn executor is the person appointed by the Will to carry into effect its provisions and to administer the property of the testator. The...

26th Sep

Practice notes

Revocation of Will

Revocation of a WillA Will is revocable at any time during the testator's lifetime. A testator may not revoke their Will in any manner they choose: a...

25th Sep

Practice notes

Creation of trusts—by transfer of property to trustees

Creation by transfer of property to trusteesIn practice trusts will frequently be created by a settlor transferring assets to independent trustees on...

25th Sep

Practice notes

Codicils

Codicils may be used for making any alteration in a Will such as to alter the executors or make changes in legacies, whether by addition or deletion...

25th Sep

Practice notes

Will drafting—planning the Will

By this stage, the draftsperson will have met the client to take instructions and obtained all the relevant information regarding their circumstances....

25th Sep

Practice notes

Payment of legacies

IdentificationThe personal representatives (PRs) must identify:•the beneficiary entitled•what each beneficiary is entitled to receive•the time at...

25th Sep

In-house

Practice notes

Probate actions—want of due execution

In order to validate their Wills testators dying before 1 January 1964 must have followed the execution formalities set out in the Wills Act 1837 (WA...

25th Sep

Most recent Q&As content

Q&As

Can section 27 of the Trustee Act 1925 notices be placed before the grant of probate or representation has been obtained?

Section 27 of the Trustee Act 1925 (TA 1925) provides a means by which trustees of a settlement or a deceased’s personal representative may distribute...

28th Sep

Q&As

Where the deceased’s Will was made in Scotland but the deceased lived in England and died in England, should probate be obtained in England or Scotland?

Practice Note: Jurisdiction in probate matters outlines that for probate purposes, the UK consists of three jurisdictions: England and Wales, Scotland...

28th Sep

Scottish Law

Q&As

Would the residence nil rate band be available on a contingent gift of land to a direct descendant on attaining 18, 21 or 25?

The residence nil rate band (RNRB) is an addition to the basic nil rate band (NRB), which further reduces the inheritance tax (IHT) payable on an...

28th Sep

Q&As

What rights does a residuary beneficiary have to challenge a firm’s professional charges for acting in the administration of an estate where the firm was instructed by lay executors who approved the invoice?

Solicitors are entitled to remuneration for non-contentious business, such as estate administration work, that is fair and reasonable having regard to...

Produced in partnership with Oliver Auld of Charles Russell Speechlys LLP 28th Sep

Q&As

Where the executors of a Will have either predeceased the testator or renounced probate, who is entitled to administer the estate?

We assume the Q&A is referring to the executors appointed by the Will and that they have either predeceased the testator or renounced probate.It is...

28th Sep

Q&As

In an insolvent estate, are the costs of insuring the deceased's property during the administration period regarded as testamentary expenses when it comes to the order of priority of settling debts?

Under the Administration of Insolvent Estates of Deceased Persons Order 1986, SI 1986/1999, r 4(2), reasonable funeral, testamentary and...

28th Sep

Q&As

Is there insurance that executors can take out to protect themselves from any future personal liability on making final distributions?

A particular problem for can arise for personal representatives (PRs) where they are aware that there is a beneficiary or indeed a creditor that needs...

28th Sep

Q&As

Can an executor who has been granted probate in his own name, then grant a power of attorney to a third party?

The office of executor is a personal appointment to the executor by the testator and cannot be assigned or transferred to anyone else. An executor who...

28th Sep

Q&As

The executor is also the creditor of an estate, but the beneficiaries suspect the debt has not been properly incurred. What options are available to the beneficiaries?

We have assumed for the purposes of this Q&A that the estate in question is solvent.Debts incurred by testatorDuring the lifetime of the testator,...

28th Sep

Q&As

What are the consequences if an executor takes out a grant of probate knowing that there is a possibility that the estate is insolvent?

This Q&A does not indicate whether the executor is a layperson or a professional and, if a professional, whether that person is a solicitor. However,...

28th Sep

Q&As

What is the current interest rate payable on legacies?

We refer you to the following which may assist:

28th Sep

Q&As

When varying a specific gift in a Will, is it possible to substitute the gift that has been left for something different?

A deed of variation executed by a legatee is a gift by that legatee to a substituted legatee. The gift will have the special inheritance tax treatment...

28th Sep

Q&As

If property is held on joint tenancy and one tenant dies, is it possible to retrospectively sever the tenancy and alter the deceased's will to provide for the deceased's interest to pass to the surviving tenant under a life interest trust? Would there be any issues if the arrangement was designed to minimise the surviving tenant's available assets in order to reduce the amount they will be charged towards their care and support in the future?

Once the testator has died it is not possible to 'rewrite' the Will, however dispositions made under the will or on intestacy may be varied by an...

28th Sep

Q&As

Do the executors of a will have to provide a copy of the will to a beneficiary (a minor who asks for it through their parent) prior to the grant of probate?

The decision on disclosure is a matter for the executors and their decision may be influenced by a number of factors.It is not clear whether there is...

28th Sep

Q&As

Where an IHT100 is required as a trust reaches its ten-year anniversary and there is an exception to the requirement to file an IHT100 when the value of the trust does not exceed 80% of the NRB. As the trust was created by two settlors, is the exemption threshold calculated by 80% of one NRB, or 80% of the two NRBs available?

Form IHT 100 should be used when a chargeable event such as a ten-year anniversary charge arises on relevant property. Trustees may not be required to...

28th Sep

Q&As

A and B own land as tenants in common in equal shares. A has died and B is untraceable. A’s personal representatives need to sell the land. What are their options in this situation?

In situations where it is unclear whether the untraceable tenant in common is alive or dead, see Practice Note: Missing persons and presumption of...

28th Sep

Q&As

Is there an equivalent to section 142(4) of the Inheritance Tax Act 1984 (IHTA 1984) in relation to appointments made under IHTA 1984, s 144?

For reference, section 142(4) of the Inheritance Tax Act 1984 (IHTA 1984) provides that:‘…(4) Where a variation to which subsection (1) above applies...

28th Sep

Q&As

Who administers an estate where an executor refuses to act? If a person dies intestate and the estate is referred to the treasury solicitor who locates the next of kin but the next of kin refuses to act, how would a creditor obtain the money they are owed?

Practice Note: Probate actions—citations explains that where an executor is appointed by a deceased testator and that executor refuses to administer...

Produced in partnership with Graham Stott of 3 PB Barristers 28th Sep

Q&As

In an intestacy, where an adult beneficiary dies before the conclusion of the estate administration, does the inheritance under the intestacy become part of the deceased beneficiary’s own estate?

A person dies intestate if they die without a valid will being in place.The Administration of Estates Act 1925 (AEA 1925) sets out the statutory order...

28th Sep

Q&As