Samantha Kennedy, Author at MLP Law

Challenges in Probate: Defending a contested Will

The legal process of administering an estate after someone passes away, can often become a complex and emotionally charged undertaking, particularly when faced with contested wills. The challenges that arise during these disputes can test the boundaries of family relationships and legal frameworks. In this article, we explore some of the common challenges encountered in probate and offer insights into effectively defending contested wills.

  1. Undue Influence and lack of capacity: A frequent challenge in defending contested wills is the allegation of undue influence or the claim that the deceased lacked the mental capacity to make rational decisions. Family members or interested parties may argue that the deceased was coerced into altering their will, or that they were not of sound mind when the will was created. Establishing the mental capacity of the testator at the time of drafting the will becomes crucial in such cases.
  2. Ambiguous wording and interpretation: Ambiguities in the language of a will can lead to disputes among beneficiaries. Vague or unclear terms may give rise to differing interpretations, causing family members to contest the distribution of assets. Resolving these issues often requires a careful examination of the testator’s intentions, considering the context and potential external influences.
  3. Family dynamics and disputes: Inheritance disputes often expose underlying family tensions and rivalries. Sibling rivalries, blended family dynamics, or disputes arising from unequal distribution of assets can complicate the probate process. Mediation or legal intervention may be necessary to guide through these familial challenges and find equitable resolutions.
  4. Forgery and fraud claims: Individuals may allege that the will is fraudulent or that signatures were forged. Proving or disproving such claims involves forensic analysis and careful examination of the authenticity of documents. Adequate documentation and witnesses become pivotal in defending against accusations of forgery or fraud.
  5. Executor’s role and conduct: The actions of the executor play a crucial role in the probate process. Challenges may arise if beneficiaries perceive the executor as acting against the testator’s wishes or in a manner that lacks transparency. Clear communication, adherence to legal obligations, and ethical conduct are essential for executors to successfully defend the probate process.

Defending contested wills in probate requires a delicate balance of legal expertise, empathy, and understanding of complex family dynamics. As these challenges can lead to emotional strain and protracted legal battles, seeking professional advice early in the process is often key. By addressing the issues of undue influence, ambiguous wording, family disputes, potential fraud, and executor conduct, individuals involved in probate can work towards a fair and just resolution, preserving the intent of the deceased and minimizing conflict.

Seeking Legal Advice

Our team understands the sensitive nature of probate and emotional challenges that can arise during such times. We are committed to guiding you through each step of the process, providing clarity. Whether you are an executor trying to fulfil your responsibilities or a beneficiary seeking to defend your rights, out team can provide comprehensive support and guide you through the process, working towards a resolution.

The rules of intestacy – What happens if you die without a Will?

A Will is one of the most important documents you will ever write and allows you to decide what happens to your money, property and possessions after your death.  Failing to make a Will can cause chaos and disruption to your family or dependents and in the absence of a Will there is no guarantee that your money and property will pass in accordance with your wishes. An up-to-date Will provides you with the security that your wishes are complied with and provides your family and friends ease of dealing with your estate following death.

This article will discuss what happens if you die without a Will and explains who will inherit from your estate.

What happens if you die without a Will?

In England and Wales, if you die without writing a Will, your estate will be distributed in accordance with the intestacy rules as contained in the Administration of Estates Act 1925. In the absence of the Will, you are classed as dying intestate.

The rules are complex and can change depending on your individual circumstances when you die. This means that your estate may not pass in accordance with your instructions and can cause great problems following death.

Who would inherit under the rules of intestacy?

The beneficiaries will vary depending on your surviving relatives and we have provided an overview of the provisions below and the order which applies.

  1. Married couples or civil partners:
  • If the deceased died leaving a spouse or civil partner at the time of their death, that person will inherit everything.
  • If there is a spouse or civil partner, together with children, grandchildren or great grandchildren, then the spouse or civil partner will only receive the first £322,000 plus half of the remaining balance of the estate and the personal possessions. The other half of the remaining balance of your estate will go to your children.
  1. Children:

If there is no surviving spouse or civil partner, the children of the deceased will inherit the entire estate, and if more than one in equal shares.  Adopted children have the right to inherit under the rules of intestacy.

Stepchildren will not receive anything under the rules of intestacy unless they have been legally adopted.

  1. Parents:

If you die without leaving a spouse/civil partner or children, and your parents survive you, then they will inherit the estate and if more than one, in equal shares.

  1. Siblings:

If none of the above survive you, your brothers and sisters will inherit in equal shares. If a sibling has predeceased you, their children will inherit the share that they would have received.

  1. Half-siblings:

If none of the above survive you, your half-brothers and half-sisters will inherit in equal shares. If a half-sibling has predeceased you, their children will inherit the share that they would have received.

  1. Grandparents:

If none of the above survive you, and your grandparents have survived you, they will inherit the estate in equal shares.

  1. Aunties and uncles:

If your grandparents predecease you, any Aunties and Uncles that you have in both your maternal and paternal lines, will inherit in equal shares. If an Auntie or Uncle has predeceased you, their share will pass to any children that they have.

  1. Half-Aunties and Half-Uncles:

Provided that all the above have predeceased you, then any half Aunties or Uncles will inherit in equal shares. Again, if any have predeceased you, their share will pass to any children they leave.

  1. The Crown:

If there are no surviving relatives, as set out above, your estate will pass to the Crown. This is known as bon vacantia.

Who cannot inherit?

The intestacy rules enforce a fixed order of beneficiaries in an estate and there are certain people who have no right to inherit where someone dies without leaving a Will:

  • Unmarried partners or cohabitees
  • Relations by marriage
  • Close friends
  • Carers

Seeking Legal Advice

A Will is such an important part of planning for your future and it is the simplest way to protect your estate from passing in accordance with the intestacy rules. It is also important to review any existing Wills to ensure that they are valid and up to date with any changes in circumstances.

A Will provides you with peace of mind and security that your wishes are complied with and that you have simplified the process for your loved ones. Our specialist team are experts and able to take you through the process, tailoring the service specifically to your needs and advise on all suitable areas.

Understanding Probate costs and how to reduce them

Dealing with the probate process can feel overwhelming, especially when managing financial matters and expenses. There are various costs associated with obtaining probate and handling estate administration, and this article explores these costs and strategies to lessen their impact.

What costs are usually involved?

  1. Application fee:

In obtaining a grant of representation (probate) there is an application fee, which is payable to HM Courts and Tribunal services, upon application.  The grant gives you the legal authority to administer a deceased’s estate.

At present, there is an application fee if the estate is valued over £5,000. The application fee is currently £273. There is no fee for estates worth £5,000 or less.

 

  1. Inheritance tax:

When dealing with an estate, it is important to ascertain whether it will be subject to inheritance tax. This will depend on the value of the deceased’s estate and who the estate is being left to.

There are different reliefs and exemptions available for estates. The rate of tax on death is 40% and becomes chargeable on assets over the available nil rate band (currently £325,000).

Seeking professional help can determine the tax liability and any potential reliefs or exemptions that may be applicable.

 

  1. Professional valuations:

An important part of the estate administration is valuing the deceased’s assets and liabilities. It is important to obtain accurate information as the value of the estate may impact probate fees and inheritance tax calculations.

As such, it may be necessary to instruct professionals to carry out valuations to ensure that the process is accurate and compliant. This could include property valuations from estate agents or surveyors, valuations of business assets and personal belongings.

 

  1. Disbursements:

There are several expenses which are associated with probate and estate administration, including bankruptcy searches, bank transfer fees, legal statutory notices, trust registration, identification searches and much more.

These expenses are often associated with an estate and are required to ensure that the personal representative has completed their responsibilities as best as possible. Failure to comply with certain requirements and procedures, could result in personal liability for an executor or personal representative.

 

  1. Solicitor fees:

If you instruct a solicitor or legal representative to assist you on behalf of the estate, they will charge a fee for their services. Their costs will vary depending on the complexities of the estate.

 

Mitigating costs and probate

Even though a grant is required in some circumstances, irrespective of whether the deceased left a will, there are numerous options available to you to help your beneficiaries and reduce costs.

 

  1. Prepare a Will

A will is a vital part of planning for probate and your estate. With proper advice and guidance, you can review the likely costs involved in your estate and plan for these accordingly.

Providing your executors with clear instructions ensures that there are no uncertainties following your death and prevent hidden costs from arising. As part of your Will review, your solicitor will be able to provide advice and guidance on how best to prepare and mitigate costs including inheritance tax planning.

 

  1. Inheritance tax planning

As mentioned, seeking professional advice on estate planning can significantly reduce the tax liability on death. Much of estate planning involves lifetime transfers and utilising exemptions and reliefs available to benefit from lower tax liabilities. When considering ways to reduce the value of your estate, you could consider:

  • Gifts from the estate
  • Gifting assets into a lifetime settlement/trust
  • Tax friendly investments
  • Life policies

 

How can mlplaw help?

To assist with a transparent probate process and gain an understanding of the costs involved, it is important to seek professional assistance. At mlplaw our specialists can advise you on the process and provide clear and concise advice for you and your family.

By offering estate planning suggestions and discussing the costs with you, you will be able to reduce the difficulties faced by your loved ones, following your death.

Our specialists offer a full range of estate administration services, guiding you through the process and ensuring that your wishes are carried out.

What to expect when administering an estate

Losing a loved one is never easy, and when it comes to dealing with the legal and financial matters surrounding their estate, the process can seem overwhelming. The legal process of settling an estate is commonly known as probate. This article will unravel the probate process, guiding you through what to expect when dealing with the affairs of the deceased.

What Is Probate?

Probate is the legal process of administering a deceased person’s estate. It involves several steps to ensure that their assets are distributed correctly, and any outstanding debts are settled. The process varies depending on the complexity of the estate but generally involves the following key steps:

  1. Locate a Will: The first step in the probate process is to establish whether the deceased left a valid will. If the will has been validly executed, it will be used to determine how the estate should be distributed.

 

  1. Gathering Information: The executor must gather information about the deceased’s assets, debts, and any other relevant financial matters. This may include bank accounts, investments, property, and outstanding loans.

 

  1. Valuing the Estate: All assets within the estate must be valued. This includes obtaining fair market value of property, investments, and personal belongings. The executor must also account for any outstanding debts and funeral expenses.

 

  1. Paying Inheritance Tax: If inheritance tax is due, it must be paid before distributing assets to beneficiaries. Some estates are exempt from this tax, and there may be reliefs or exemptions available in certain cases.

 

  1. Applying for Grant of Probate: To gain legal authority to administer the estate, the executor must apply for a Grant of Probate if there’s a will or a Grant of Letters of Administration if there’s no will. These documents are issued by the Probate Registry and confirm the executor’s authority to act on behalf of the deceased.

 

  1. Settling Debts and Expenses: Before distributing assets, the executor must settle any outstanding debts, including income tax and other liabilities.

 

  1. Notifying Beneficiaries: After all debts are paid and taxes are settled, the remaining assets can be distributed to the beneficiaries as outlined in the will or the rules of intestacy.

 

  1. Closing the Estate: The final step is to wrap up the estate administration. This includes preparing a detailed account of the financial transactions and obtaining clearance from the beneficiaries that they are satisfied with the distribution.

 

Seeking Legal Advice

Given the complexities of the probate process and the potential for disputes, it’s advisable to seek professional legal advice. Our specialist team are experienced in dealing with a full range of estate administration, guiding you through the process, ensuring that the deceased’s wishes are carried out accurately and that all legal requirements are met.

A guide to Estate Administration

When a loved one dies it can be a very difficult time for family and friends. Our guide is designed to provide you with the initial steps to be taken and an explanation of the roles and responsibilities of a personal representative.

  1. Register the death and notify the government of the death.

Once you have obtained the medical death certificate, you will need to formally register the death with the registrar.

When the death is registered you will receive a unique reference number to access the Tell Us Once service. This service allows you to inform all the relevant government departments when somebody dies.

 

  1. Organise the funeral.

The funeral should be organised by the Personal Representatives of the deceased. Funeral costs are an expense of the estate and can be paid from the deceased’s bank account before a Grant of representation has been obtained.

 

  1. Find out if there is a Will.

A Will is a legal document that sets out an individual’s wishes and expressions regarding the distribution of their property and estate when they pass away.

If they left a will, there will be executors appointed to distribute the estate in accordance with the terms of the Will.  The Will should specify how they want their assets to be distributed.

If you cannot find a will in their home, you can contact their solicitor, accountant, or bank to see if they hold a copy. There is also a national will register which you can pay for a search of registered documents.

If there is no Will, the personal representatives will require a Grant of Letters of Administration to distribute the estate in accordance with the intestacy rules.

 

  1. Is a Grant of Representation required?

A grant of representation is a legal document that gives the personal representatives authority to administer the estate. A grant or representation is commonly known as ‘Probate’ or ‘Letters of administration’.

In some estates, it may not be necessary to obtain a Grant of Representation, commonly on the death of a spouse and all the assets are due to pass to the surviving spouse.

Where there are joint assets such as jointly held bank accounts and property held jointly, these will normally pass by survivorship to the surviving joint owner and a grant of probate is not usually required.

When someone dies leaving assets in their sole name, even if the person had a Will, without a court-sealed grant of representation any property or money held cannot be accessed.

 

  1. Valuation of the estate assets

To ascertain whether there will be an inheritance tax liability, you will first need to understand what assets are included in the estate and their values.

You will need to obtain date of death balances for funds held in accounts and with financial institutions, information on stocks and shares held, valuation of any property, life insurance and pensions, business assets and any investments.

Once you have an estimate of the estate’s value, you will be able to find out if Inheritance Tax is payable.

The estate will not have to pay inheritance tax as long as one of the following applies:

  • It all passes to the spouse or civil partner of the person who died.
  • It all passes to a charity or a comminute amateur sports club.
  • It has a value below the inheritance tax threshold of £325,000. If the person who died was widowed or is giving away their home to their children, the tax threshold can be higher.

 

  1. Inheritance tax

If Inheritance tax is due, you must complete and report to HM Revenue and Customs (HMRC) by completing the relevant tax forms. You must submit the form within 12 months of the person dying. If you miss the deadline, you may have to pay a penalty.

You must pay the inheritance tax due within 6 months from the date of death. There is an option to pay the tax due on some items in yearly installments, e.g. a house.

Once you have completed and sent the forms to HMRC you will need to wait 20 working days before you can apply for a grant of representation.

 

  1. Apply for a Grant of Representation

You can apply for a grant yourself online or by post. You can also appoint a representative such as a solicitor to apply for a grant on your behalf.

The personal representative will need to sign a Legal Statement confirming that they are the correct person and the person applying for a grant.

You may need to pay a fee to apply for a grant. The fee is dependent on the value of the estate.

  • If the estate is £5,000 or less there is no fee
  • If the estate value is over £5,000, the application fee is £273

 

  1. Estate administration and distribution

Once the Grant of representation has been issued, the personal representatives can use the grant to close accounts, sell or transfer shares and investments, and sell or transfer property.

During the administration, the personal representative will need to deal with the following:

  • Settle outstanding debts and taxes. Personal representatives can also place a notice in the gazette giving unknown creditors 2 months to claim anything they are owed. This provides the personal representative with security that they will not be personally liable for unknown creditors if they wait to distribute the assets for 2 months.
  • The personal representative may need to sell shares, investments or property of the estate. They will need to consider the tax consequences, as the estate may have to pay Capital Gains Tax on them if the value has gone up in value since the person died.
  • Report to HMRC on any income received during the administration period.
  • Distribute the estate to the beneficiaries. Once the debts and taxes have been paid, the estate can be distributed in accordance with the terms of the Will or intestacy. The executor should prepare final estate accounts to show the assets and liabilities of the estate and how they were distributed.