When a loved one dies, and you are the next of kin, there are legal formalities that must be dealt with. Laura Staples, wills and probate partner at Humphries Kirk in Crewkerne explains what you should do.
Registering a death
Your first duty is to register the death. Either the next of kin or the executors appointed in your loved ones will do this. The hospital or doctor who confirmed the death will give you a medical certificate stating the cause of death. This certificate is in a sealed envelope which you must not open.
You will then need to telephone your local Registrar of Births, Deaths and Marriages to make an appointment to register the death. The death must be registered closest to the place where the death occurred.
At the end of your appointment, the registrar will give you the death certificate. It is a good idea to request a few copies of this to speed up the administration of your loved one’s estate. The registrar will also give you a form to be completed and sent to the Department for Work and Pensions and a certificate for burial or cremation for you to give to the funeral director.
Organising a funeral
The funeral arrangements can be made by anyone in the family or by the executors if your loved one made a will. Check personal papers to see if a will exists and if a pre-paid funeral plan has been arranged or if there are any specific funeral wishes.
Locating a will
If your loved one used a solicitor to prepare their will, the original version will usually be held by the firm of solicitors they used.
If the will was made a long time ago it is possible that the firm who prepared it may have changed name or merged with another firm. If in doubt the local law society may be able to help you track the firm down. Remember to check your loved one’s home, particularly if you think they may have prepared a DIY will.
If you know or suspect a will was made but you cannot find it, a solicitor can advise you on the steps you need to take to search for a missing will.
The executors have a duty to administer your loved one’s estate in accordance with their will. Although the will gives the executors the authority to deal with the deceased’s estate, they will need to apply for a court order called a ‘grant of probate’ to be able to dispose of the assets.
Many people find it easier to instruct a solicitor to administer the estate because it can be time-consuming and complicated.
A grant of probate usually takes about three months, but the entire administration process can take up to a year to complete, even in simple cases. This is because government bodies such as the Department for Work and Pensions and HM Revenue and Customs may also need to be involved.
Letters of administration
Where a will cannot be found the estate must be distributed according to the rules of intestacy. You will need to apply for a court order, similar to a grant of probate, called a ‘grant of letters of administration’. There is a strict order of priority as to who can apply for the grant of letters of administration.
Your solicitor will advise you on who inherits the estate and the order of entitlement when there is no will. The result may not always be what you expect. For instance, under the rules of intestacy, spouses often have to share their inheritance with children, step-children or parents-in-law.
Disputing a will
If you have concerns about the validity of a will, for example, if you suspect it has been forged, tampered with or you are concerned whether it was made when your loved one was of sound mind, you should speak with a solicitor as soon as possible. If the will is found to be invalid for any reason, any previous will or the intestacy rules will apply.
Claiming financial provision
Certain relatives and people who were financially dependent on the deceased can claim additional funds from the estate if the will, or intestacy rules, do not adequately provide for them. If you wish to make such a claim, you should speak with a solicitor as soon as possible as strict time limits will apply.
Varying a will
If all the beneficiaries agree, the will or intestacy rules can be changed using a document called a ‘deed of variation’. This might be done for a variety of reasons. One reason is to give effect to an agreement reached between the beneficiaries following a dispute or claim. The usual reason, however, is to maximise the use of personal allowances to save inheritance tax. A deed of variation must be completed within two years of death.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.