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Explaining Probate

Posted on by Jonny

Explaining the Probate Application

When a person dies, it is required by law that all of their personal affairs must be put in order. This is known as ‘Probate’ and includes ensuring that their estate has been finalised. The person who finalises their estate is known as their Executor. However, the executor only has the right to access the deceased’s estate once they apply.

In this guide, we will explain what probate is, what the purpose of it is, how long the probate process typically takes in the UK and why probate is necessary following the death of a loved one.

What is Probate? Why is it necessary?

Probate (also known as ‘Confirmation’ in Scotland) is the legal process of executing a will and settling a deceased’s estate.

It is important to know that the term ‘estate’ does not simply refer to any property the deceased owned, but also includes their possessions, their cash holdings and any land they may have owned, as well as any financial obligations they had, including the repayment of loans, child maintenance and the like.

The purpose of probate is to give the executor the legal right to handle the deceased’s estate and to make executive decisions on their behalf. They are also known as Personal Representatives.

What Does Probate Do?

Probate allows the personal representative to do any of the following:

  1. Finalise all bills and close the deceased’s accounts
  2. Settle unpaid debts
  3. Sell or transfer property owned by the deceased
  4. Liquidate or gather assets in all their forms
  5. Calculate and pay the Inheritance Tax
  6. Pay any remaining income tax if applicable
  7. Distribute the estate as outlined by the will or by the government

Who Can Apply?

Probate is often applied for by the person named as the Executor in the will left behind by the deceased. However, if the Executor has died, an Executor hadn’t been named in the will or there was no will, the following people can apply for probate instead:

  1. The deceased’s spouse. This can be done regardless of if the couple were separated at the time of death
  2. Children of the deceased
  3. Other close family members

If you believe the person who has applied for probate is not fit for the role, you can contest it. You can also contest a will if you have a valid reason, but this should be done with the advice and aid of specialist solicitors. You should be aware though that, if you contest a will and take it to court without a reasonable chance of winning, there is a good chance you will be wholly liable for the cost of taking such action, including the costs of the other side and the court costs.

Applying for Probate

The person who has right to apply for probate (those named the executor or a close living relative) can apply online through the government website, or can hire solicitors to do so on their behalf. If there is no will, the process is similar, but instead of probate, you would instead apply for what are known as Letters of Administration.

When you apply, you will need the following information to send in either online or through post:

  1. The original Will
  2. The original Death Certificate or Interim Death Certificate
  3. An estimate of the estate’s value

You will also need to fill out a few forms. Which forms will depend on where the deceased lived in the UK. For example, if they lived in England or Wales, you will need to fill out the PA1P application if they had a will, or the PA1A application if they did not. In Scotland, these forms are known as C1 and C5.

Once you have applied, you will need to send the original documents to the local Probate Registry, along with a fee of £215 if the estate’s estimated worth is greater than £5000. If it is under £5000, there is no fee.

When is Probate Not Necessary?

Probate isn’t necessary when all of the deceased’s assets are in a joint account with their living spouse. Probate is also not necessary if the estate left behind is nominal, or the deceased did not have any assets to speak of.

How we can help

As always, legal matters that occur when applying for probate and executing a will are best done with the help of solicitors.

At The Inheritance Experts, we work with law firms who specialise in handling wills and probate. This means they are well-placed to help you through all stages of the process.

If you need any help navigating probate, do not hesitate to get in touch with The Inheritance Experts via the contact form on our website or by calling 0161 413 8763.

How to Contest a Will

Posted on by Jonny

If you are considering contesting the will of a relative, it is vital that you are aware of the processes before you start to contest it. That’s true whether you believe that

  • the will is unfair;
  • it isn’t legally valid, or;
  • the testator suffers from undue pressure into making certain people beneficiaries.

This guide will help you to navigate the often complex world of contesting probate.

Contesting a will or contesting the process of probate when a will is valid can only be done by certain people. These people include the testator’s

  • living relatives;
  • those who were a beneficiary in a previous will, and;
  • those with significant reason to believe they’re a beneficiary in the latest will. For instance, if a promise has been made to the person by the deceased.

In addition, a contest of probate must also fall under one of a few categories. These categories include:

It is also important to remember that the time limits for contesting probate are strict. Therefore, you should make sure that you contest the will or the probate process within six months in some cases. However, in some circumstances, there is no time limit as to when you can contest the will.

How to Contest a Will

Contacting a specialist solicitor

If you are considering contesting a will, it is important to find out whether you have a viable claim. This is where The inheritance Experts come in – one of our advisors will speak to you on a free, no-obligation basis and will advise you whether you have a valid claim that has a good chance of success depending upon the facts.

Finding Grounds and Evidence

So, you have a claim that potentially has a good chance of success and you choose to go forth. We’ll put you in touch with a specialist solicitor with experience in wills and probate cases. They’ll also have a track record in achieving positive results for their clients.

Together, you will collect any evidence that you need to make your case. Subsequently, your solicitor will advise you what the best grounds are to contest the will.

Mediation

Once this is done, most solicitors will suggest mediation with the other beneficiaries. Often, this is the best possible first step to attempt to resolve the dispute.

During mediation, you will hold a discussion with the other beneficiaries. A third party without bias leads the discussion, helping you manage your disputes. This is with the aim of resolving any existing issues, any further issues that arise during the discussions and, ultimately, guiding all of the beneficiaries to a conclusion that everyone is happy with. In many cases, mediation will resolve the claim, and the case will not need to continue.

Going to Court

If there’s no resolution through mediation though, it will go to a probate court. There, a judge will balance the evidence and decide the merits of each beneficiaries’ claim. Also, they’ll consider the wishes the testator expresses in their will.

Going to court can be a long and costly process though, and you may not receive a result for a number of years if the judge is unable to make a decision. As we say, the case progressing to court is also extremely expensive. Moreover, if you lose, you may have to pay the other beneficiaries’ legal fees in full.

How to contest a will with our help

At The Inheritance Experts, we work with specialist law firms who have a proven track record in handling wills and probate disputes. This means they are well-placed to help you get the proportion of the estate you are entitled to.

If you believe you have grounds to contest a will and want to know if you have a realistic claim, do not hesitate to get in touch with The Inheritance Experts via the contact form on our website or by calling 0161 413 8763.

Why you should draw up a will

Posted on by Jonny

Ah, Wills: it may seem like something you don’t need to do for a long time. Yet there are multiple reasons why you should consider drawing up a will now.

For example, if you have children, a will can clearly state who your child(ren)’s legal guardians would be. Also, who you would want to take care of them in the event anything were to happen to you.

Similarly, you can also specify how those guardians bring up your child(ren) too. For example: should they go to religious schools for their education? Will the child(ren)’s grandparents have access rights?

In addition, you can also use your will to specify what your wishes are for your funeral. This does not simply have to be whether you choose burial or cremation. It can also include

  • any songs to play during the ceremony;
  • where you like the ceremony to be held, and;
  • what you would like to happen to your ashes if you do choose cremation.

Other things you can do in a Will

Some people also use their will to specify that they want to donate their body to a medical research facility, such as the UK Biobank. Or they specify that they wish to donate their organs, too. On this, we would say that you should speak to your friends and family about your wishes too though.

Furthermore, by drawing up a will, you can also state clearly who you want to get what aspects of your estate. To be clear, a person’s ‘estate’ does not refer solely to any property they own, such as a house or a flat, but also all of their possessions and any money, including the contents of ISAs, saving bonds and any investments.

Decide on property division through Wills

Therefore, through Wills, you can leave your property to your direct next of kin. That might mean your spouse or your child(ren), while also leaving individual possessions to specific people inside and outside of your family.

For example, say you have an ornament in a display cabinet that your best friend admires. With a will, you could henceforth specify that they get it once you pass away. Similarly, you might share a hobby with one of your grandchildren (stamp collecting, perhaps). Accordingly, your will can specify that he/she gets your collection when you pass away. Rather than leaving it up to the frailties of common sense to prevail after your death.

On this, it is worth noting that, if you were to die intestate, the rules regarding statutory legacy changed recently.

It makes sense then to draw up a will. It ensures they divide your estate as you wish; therefore, you’re also helping to squelch the possibility that the division of your estate leads to a dispute following your death.

Accordingly, we’d suggest that it will also help those you leave behind. Rather than having to divide your belongings and the potential squabbles this could cause, they can instead focus on grieving your passing.

What you should do about Wills

In the first instance, make sure that you get a will drawn up! Depending upon the complexity of the will you want to draw up, this needn’t cost the earth either. In fact, a simple will could cost you from around £80 to have drawn up depending upon the firm you use.

But a specialist will involving the creation of trusts, overseas properties, etc, cost over £500 to draw up. On this, please note that national laws may apply if you own land and property in other countries. For example, if you own land or property in Italy, Italian law states that this passes automatically to your children upon your death.

However, say one of your family members dies without having left a will (known as ‘dying intestate’). Or you feel that a family member’s will treats you unfairly and the estate is now in dispute. It’s a good idea to speak to someone with experience in the areas of contesting a will or contesting probate.

More About Us

At The Inheritance Experts, we work with specialist legal firms who have a proven track record in handling wills and probate matters. This means they are able to help you get the proportion of the estate you deserve. After your initial consultation with our advisors, which is done on a free no-obligation basis, we will match you with the firm that best suits the circumstances of your claim.

If you believe you are due a portion of an estate and want to know if you have a fair and realistic claim to some or all of it, do not hesitate to get in touch with The Inheritance Experts via the contact form on our website or by calling 0161 413 8763.

Presumption of Advancement cases show need to put agreements in place

Posted on by Jonny

You may have seen a probate story in the news the last few days about a mother not being able to claim back money from her late son’s estate.

The mum said that she had loaned her son £170,000 in 2005 to help him buy a house.

Having been diagnosed with an aggressive form of cancer in 2010, the son paid his mother £90,000 from a £350,000 compensation award he was given. The son then married before sadly passing away in 2016 with the entirety of his estate being left to his wife and a number of named charities.

Last June, the mother made a claim on the estate for the outstanding loan (£80,000) as she was not provided for in the deceased’s estate.

However, when the case came to court, the judge found that the mum had not proven the £90,000 was a repayment of the original loan rather than a gift. In addition, she wasn’t able to prove the original £170,000 was loaned rather than gifted to her son. Therefore, the judge ruled against the mum as he considered a legal principle called Presumption of Advancement (PoA) to apply.

What is a Presumption of Advancement?

Put simply, PoA is a well-established principle in UK law which states that courts will presume that, if a person transfers money or property to their spouse or child, this is considered to be a gift in the absence of any evidence to the contrary.

This is why, when the Court of Appeal heard the case again last month (December 2019), it upheld the original judge’s ruling due to a lack of evidence demonstrating that the money from the mother to the son in 2005 was intended as a loan rather than a gift.

To be clear, if this evidence had existed, this would have overridden the presumption of advancement. This evidence could have been something as simple as a hand-written agreement or IOU between the mum and her son.

What makes this case interesting is that provision was made in Section 199 of the Equality Act 2010 to abolish PoA. However, since then, this abolition has not been brought into force as part of UK common law. Additionally, when hearing cases involving PoA, no judge has created a legal precedent by ruling with Section 199 in mind.

The need to create an agreement

As this case demonstrates, it is important to make clear the basis upon which you are providing money to your child. This should be done whether it is a substantial amount to give your child a leg up when purchasing a home, such as in the case highlighted, or is a much smaller amount intended to help them pay some bills at a time when money is tight for them.

It is a great shame the lady making the claim and her daughter-in-law were not able to resolve this matter amicably, particularly given the tragic circumstances under which the claim was made. Unfortunately, this is increasingly becoming the case though, as the number of inheritance disputes increased by 62% year-on-year between 2018 and 2019 according to The Financial Times.

It is also unusual for this case to have come to court too; There is much publicity attached to probate cases. Most though are settled without needing to go to court.

What you should do

At The Inheritance Experts, we work with specialist legal firms who have a proven track record in handling probate cases. This means they are well-placed to help you get the proportion of the estate you are entitled to. After your initial consultation with our advisors, which is done on a free no-obligation basis, we will match you with the firm that best suits the circumstances of your case.

If you believe you are due a portion of an estate and want to know if you have a viable case, do not hesitate to get in touch with The Inheritance Experts via the contact form on our website or by calling 0161 413 8763.

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