Wilson Browne discusses…losing a loved one

Firstly, you need to consider what is to happen to the body. You need to establish whether your loved one had a funeral plan in place and whether they wished to be buried, cremated or donated to medical science. Once this information has been made clear and you have instructed a funeral director to deal with the funeral, the Registrar should have contacted you to arrange to register the death. At this point, you will receive the Death Certificate and matters can move forward more swiftly.

If there is a Will, the person so appointed to deal with the Estate is called the Executor and if there is no Will and the deceased has died Intestate, then the person who deals with their Estate is called the Administrator. There is a specific order of appointment for an Administrator under the statutory rules. Both the Executor and Administrator are commonly called the Personal Representative of the Estate.

After establishing whether there is a Will or not, then it is imperative that the Personal Representative establishes the value of the Estate by contacting all financial institutions to establish what funds fall into the Estate and what liabilities must be paid out. Once this information has been collated you must establish whether there is the need to apply for a Grant of Representation and whether Inheritance Tax is payable.

You often need to apply for a Grant of Representation to establish that you are the legal representative of the Estate and to enable you to collect in the assets to the Estate. If there is a property and/or cash assets or investments over the value of £50,000 then you will almost certainly need to apply for a Grant. If this is not applicable, it may be that you still need to apply for a Grant in order to defend against any potential claim that there may be against the Estate.

Inheritance Tax is chargeable at 40% on any assets in your Estate over and above the figure of £325,000, which is each individuals “Nil-Rate Band”. Depending on the circumstances of each individual on death there is a maximum allowance of £1,000,000 before Inheritance Tax becomes payable, but we would recommend you take legal advice on this point as the rules are complex and there are certain application forms that must be completed for such allowances to be applicable to the Estate.

Once the Grant has been issued and you have been able to collect the assets of the Estate and settle any liabilities, the Estate must be divided between the beneficiaries so detailed in the Will or in accordance with the Rules of Intestacy. It is wise to keep Estate Accounts in respect of the Estate and the income tax and capital gains tax position must also be considered, as these matters can very easily become applicable during the period of administration.

With respect to jointly held property, the first step will be to review how the parties held the property between them – joint tenants or tenants in common. This will determine how the deceased’s share in the property will pass.

You may require a conveyancer to deal with any transfer to the beneficiary(s) or to remove the deceased’s name from the property.

If the property is to be sold, you may or may not need to obtain a Grant of Representation to proceed with the sale, depending upon the specific circumstances.

Unfortunately, the death of a party may occur in the middle of a conveyancing transaction. This can be problematic if contracts have been exchanged as death does not affect the validity of a contract. The burden and benefit of the contract will pass to the deceased’s personal representatives who are bound to complete the transaction.

Failure to complete the transaction constitutes a breach of contract. The other party will have the ability to serve a notice to complete, making time of the essence. Failure to complete following this will enable the other party to end the contract, retain any deposit paid on exchange and seek damages.  Whilst it may not be avoided, it is sensible to speak to the other party as soon as possible and advise them of the circumstances, they may be sympathetic and agree to wait.

In respect of a jointly owned property, whether or not the remaining party can continue with the sale without the need to apply for a Grant of Representation will depend upon the circumstances.

The same applies in a joint purchase transaction, if contracts have been exchanged the personal representatives step into the shoes of the deceased and will be bound to complete the contract along with the remaining owner. Consideration also needs to be given as to any mortgage finance, the offer is likely to be revoked on death, meaning there may be insufficient funds to complete the transaction. The remaining party, if they wish to continue with the sale, will need to get in touch with the lender urgently to clarify whether they can proceed with the purchase alone, should they so wish.

Whatever the position, there are likely to be delays as matters are resolved and early negotiation with the buyer or seller is crucial to minimise any potential financial loss occurring, as a result of a breach of contract.

If you were acting for someone under a Power of Attorney or a Court of Protection Deputyship order your power will immediately cease under these documents and passes to the Personal Representatives of the estate.  You should notify the Office of the Public Guardian and the financial institutions that the Donor has died and your authority has ended.  You should make available all financial paperwork and effects and any assets you were holding on behalf of the person to the Personal Representatives.

Care agencies should be told as soon as possible and there may be outstanding liabilities to pay for care that the deceased was in receipt of.  If there was a deferred payment arrangement secured against the property to pay for the persons care then the local authority will require this to be settled from the deceased estate or the sale of the property.  Whilst the local authority accept there is a process to follow and a Grant of Representation will need to be provided for the terms of the deferment will have come to an end.

If you were an attorney or deputy you will be most likely to know the deceased wishes and it is important that you make the Personal Representatives (if this is not you) aware of the deceased wishes and work together.

If your spouse passes away during, or shortly after divorce proceedings, the options to consider will ultimately depend on whether the court has made a financial Order or not.

If a financial Order has been made, this establishes a formal debt which can be pursued. Any unfulfilled financial obligations under the terms of the Order become the responsibility of the deceased’s executors.

Where there is no financial Order, matters are more complex. A claim would need to be brought against the deceased’s estate under the Provision for Family and Dependants Act 1975 in the capacity of a surviving spouse.

The court would consider a range of factors, including but not limited to the length of the marriage, and may take into consideration what you might reasonably be expected to have received if your marriage had been terminated by divorce, rather than death.