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10 Wills and Probate

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1. Introduction

2. Why should I make a will?

3. What makes a will valid?

4. Who can be a witness?

5. What does an executor or administrator do?

The executors are the people appointed in a will to deal with the estate of the person who has died. Unlike witnesses, executors can also be beneficiaries of the will. An administrator is the person who deals with the estate of a person who has died intestate (without a will) – see ‘Who takes charge if there is no will?’. The executor or administrator may both be called a ‘personal representative’.

If a person has died leaving a valid will, the executors can normally arrange the funeral straight away. However, there may be a delay, depending on how the person died.

The executors can also take charge of the house and possessions of the person who has died unless it passes automatically to a joint owner (for example, the person's living husband or wife). But if there is a will, they must follow what it says.

The executors must then work out whether they need to apply for probate (see 'What is probate?').

If there is (or could be) inheritance tax to pay, the executors must report the value of the estate to the Capital Taxes Office (see 'Will I have to pay inheritance tax?'). Even if the executors believe there is no inheritance tax to pay, they must complete a form giving details of the assets and certain gifts made by the person who died.

The executors may have to deal with claims about unfair treatment if a relative or dependant of the person who has died thinks that what they have been left in the will isn't fair, or that they have been left out unfairly (see 'What can I do if I think the will is unfair?').

If you are an administrator acting where there is no will and you handle all the matters personally (rather than using a solicitor), you will be personally liable (responsible) if you don’t follow the ‘rules of entitlement’ (the rules governing who gets what) correctly. For example, you cannot give more to someone the dead person liked, or refuse to pay the correct share to someone the dead person disliked, even if the dead person had discussed this before they died.

6. What is probate?

7. Will I have to pay inheritance tax?

8. Who takes charge if there is no will?

9. Who gets the estate if there is no will?

10. What can I do if I think there is something wrong with the will?

11. What can I do if I think the will is unfair?

12. What if there isn´t enough money to pay for the funeral?

13. What if there isn´t enough money to pay the person´s debts?

14. Terms used in wills and probate matters

15. Further help

16. About this leaflet

The leaflets in this series give you an outline of your legal rights. They are not a complete guide to the law, nor do they explain how the law will apply to you or to any specific situation. The leaflets are regularly updated, but the law may have changed since this was printed, so information in it may be incorrect or out of date.

If you have a problem, you will need to get more information or personal advice to work out the best way to solve it. See 'Further help' for sources of information and advice.

This leaflet is published by the Gurkha Free Legal Advice (LSC).

Leaflet version: January 2009

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