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What to do when someone dies: A legal perspective

Losing a loved one is an immensely difficult experience but amidst the grief, there are also legal responsibilities that need to be addressed.

From a legal perspective, it’s essential to understand what steps should be taken when someone dies to remain compliant with the law and ensure the transfer of the deceased’s estate is smooth and well-managed.

This guide will focus on key aspects such as Probate, the deceased’s Will, and other important legal considerations to help advise you through this difficult time.

However, you should always consult with a qualified solicitor whenever someone passes away to ensure you do not put yourself at risk of legal action by making the wrong decision.

Immediate steps after a death

The first thing to do is to obtain a medical certificate from a GP or hospital doctor, which is necessary for registering the death.

In the UK, you’re required to register the death within five days in England, Wales, and Northern Ireland, and within eight days in Scotland.

Once the death is registered, you will receive a Death Certificate, which is crucial for legal processes.

You should also obtain several copies as various organisations will require it later on.

Locating the Will

The next step is to locate the deceased’s Will.

This document outlines their wishes regarding the distribution of their estate and may nominate an executor who is responsible for administering the estate.

If the Will is held by a solicitor or a bank, you will need a copy of the Death Certificate to obtain the Will.

Understanding Probate

If the deceased left a Will, Probate is the legal process of proving its validity in a probate court.

If there is no Will, the process is called Administration, and the law decides who inherits.

The executor named in the Will or the next of kin will need to apply for a Grant of Probate or Letters of Administration, respectively.

The application involves submitting specific forms to the Probate Registry, along with the original Will and the Death Certificate.

It’s important to note that the process can be complex, especially if the estate is large or complicated so getting advice from a solicitor is paramount.

Valuing the estate

Before applying for Probate, the estate must be valued.

This includes all assets (property, investments, and possessions) and liabilities (debts, loans, and mortgages).

Accurate valuation is crucial for two reasons: it forms the basis for any Inheritance Tax due and it determines how the estate is distributed according to the Will or the law.

Dealing with Inheritance Tax

Inheritance Tax is a tax on the estate of someone who has died.

The current threshold for Inheritance Tax is £325,000, and anything above this may be taxed at 40 per cent.

However, there are exemptions and reliefs, such as the Residence Nil Rate Band which provides an additional £175,000 tax free allowance on a residential property that is the main family home that is passed to a direct descendant.

As such, couples who utilise their allowances efficiently, by passing on their unused tax-free allowance, can pass down £1 million tax-free to beneficiaries.

This is only possible with shrewd estate management so you should always contact your solicitor when planning your Will.

IHT must be paid within six months of the person’s death, and it’s often necessary to pay at least some of this before Probate is granted.

Accessing and distributing the assets

Once Probate or Letters of Administration are granted, the executor or administrator can access the deceased’s assets.

This involves closing bank accounts, selling or transferring property, and claiming on life insurance policies.

The assets are then used to pay any debts, including Inheritance Tax, and the remainder is distributed to the beneficiaries as outlined in the Will or according to the rules of intestacy if there’s no Will.

What if there’s no Will?

If there is no Will, the estate is distributed according to the rules of intestacy.

These rules set out a strict order of who inherits, starting with the spouse or civil partner and then children.

If there are no immediate family members, the estate may go to more distant relatives.

Legal advice and support

The process of dealing with a deceased’s estate can be legally complex and emotionally taxing so it’s often advisable to seek legal advice, especially in cases of a large estate, if the Will is contested, or if there’s no Will at all.

A solicitor can guide you through the process, ensuring that all legal obligations are met and the deceased’s wishes are honoured.

Understanding your responsibilities, from locating the Will to dealing with Probate and administering the estate, is crucial.

Remember, every estate and situation are unique, so for specific advice tailored to your circumstances, please get in touch.

Amy Hillson

Paralegal – Wills and Powers of Attorney

I started my professional career with Mander Hadley when I joined the firm in March 2021, having completed a Law Degree LLB (Hons) at Birmingham City University.