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Issues encountered during probate

19th June 2015

Not everything in life is straightforward and this certainly applies to the administration of deceased’s estates on occasion with some scenarios testing even the most experienced of practitioners.

Aside from the usual challenge of having to diligently research the assets and liabilities of the deceased, Personal Representatives may face additional complications.  These vary in nature and can result from ambiguity in a will, discrepancies in the names of the deceased or their personal representatives and relationship dynamics can even play a part.

Estates are sometimes linked, particularly in the case of married couples and civil partners, and overlooking something when administering the estate of the first to die may lead to problems on the second death.

For example, a Grant of Representation will not be required if jointly owned assets pass automatically to the surviving owner and if the estate includes registered property owned as joint tenants advising the Land Registry of the death may not have been considered.  In this case providing the relevant death certificate to the Land Registry to remove the deceased proprietor’s details from the register will suffice but the situation is different where property is held as tenants in common.

In the latter case the deceased’s share of the property passes to beneficiaries under the terms of their will or intestacy rather than to the joint owner by survivorship and a Grant of Representation will normally be required to deal with the deceased‘s share.  Situations have occurred where a property trust arose under the Will of the first to die but their share was never transferred to the Trustees.  With banks often willing to release funds without sight of a Grant of Representation provided their own criteria is met, dealing with the home is sometimes overlooked.  Had a Grant of Representation been required to deal with assets other than the home the Executors may have consulted solicitors to assist them and the trust would have been observed.  Discovering an issue such as this on the subsequent death of a surviving owner can add unwanted complexity to the administration of their estate.

A partially administered estate may affect the administration of successive estates.  With the home invariably the most valuable asset in the estate, if Personal Representatives are anxious to sell it the prospect of having to deal with ‘unfinished business’ from an earlier estate in order to perfect the sale can be daunting.  However, using a good probate practitioner will overcome these potential problems.

Siobhan Richards, Private Client department

George Ide, Private Client, Wills and Probate
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