Probate and administration of Estates
Do you need a Solicitor?
Families sometimes ask us for advice about sorting out an Estate, i.e. whether they need a solicitor.
Doing it yourself?
There are resources on the internet to enable families to obtain Probate themselves, without using a solicitor (using the HM Courts Service and HM Revenue & Customs websites and helplines), and if you have the time, and the inclination, and if the Estate and Will are straightforward, some people have found it possible to get Probate and administer an Estate by themselves.
When to use a solicitor
However, we are able to help with straightforward or non-straightforward Estates which might, for example, have any of the following features: -
- no Will
- not sure what part or all of the Will means
- not sure if it is the last Will
- not sure if some of the beneficiaries have been bankrupt
- inheritance Tax (IHT) payable
- worried that there might be IHT payable
- unsure how to identify and value assets and liabilities
Using a Solicitor could
- save time
- provide good advice
- save tax
- discover extra assets
- protect the Executors from risks from the Revenue, the DWP and other creditors
- resolve family disputes over chattels and claims of unfair inheritance
- wind up the Estate in a reasonable time at a reasonable cost
- share the workload with the family in order to reduce costs, e.g.
Family ‐ sorting paperwork, paying pecuniary legacies and household bills, and distributing chattels
Solicitor ‐ legal advice, Probate documents, Estate Accounts, Tax advice (for the deceased, the Executors and the beneficiaries)
What are some of the problems that can be encountered?
Validity of Wills
A Will must be signed in the presence of two witnesses. It does not have to be dated. The Will-maker must have mental capacity, must have knowledge and approval of what he's signed and must not be under undue influence.
If there's no Will
Then the Estate of the deceased will be distributed by the Intestacy Rules, but not, some joint property, e.g. bank accounts, will pass by survivorship to the surviving co-owner.
If you're not happy with the way the Estate's being administered
Executors sometimes are slow and make mistakes. Residuary beneficiaries have some (limited) rights to call Executors to account.
If you were promised something in a Will
Sometimes a person will work for many years relying on a promise that they'll be left something in a Will ‐ which never materialises. Such claims are called 'Promissory Estoppel'. There has to be clear evidence, and a real unfairness and these cases are very hard to prove.
Often disputes arise when dealing with the deceased's personal possessions. The starting point when considering the distribution of chattels is the deceased person's Will, or if they have not made a Will then the intestacy rules make provision for how the chattels should be distributed.
Inheritance Tax disputes
Sometimes disputes can arise either with the tax authorities or between beneficiaries in relation to the payment of tax. Legal advice should be taken at the earliest possible opportunity in such matters, as delays in making tax payments can result in penalties being imposed on an Estate.
Statutory Will applications, approval of gifts applications and other Court of Protection actions
We are able to deal with applications to the Court of Protection in relation to disputes where an individual has lost the mental capacity to deal with matters himself/herself.
Occasionally a couple (either married or siblings) make an agreement not to change their Wills after the first has died ‐ despite the general rule that a Will can be revoked at any time. Such claims are hard to bring to court because of the lack of evidence, but recently the Court has upheld some claims, despite there only being two successful cases in the previous eighty years.
In the case of some Estate disputes, injunctions can be issued to prevent the executors accessing certain investments and/or preventing the distribution of an estate. We are able to advise on such matters and if an injunction is issued, you should take legal advice immediately because there are often strict Court time limits involved.