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A Brief Guide to Trust Wills

Posted on by Jonny

A Trust Will is one of the three main types of Will that you can make. They provide an extra level of protection of your assets for the people you want to leave something to.

When is a Trust Will Used?

A Trust is a legal structure that you can include as part of your Will. They are most seen in circumstances such as:

  • Where you wish to protect your estate against possible future care fees
  • When you have a spouse or partner, but have children from a previous relationship
  • When you wish to leave some of your estate to a vulnerable or disabled person

Types of Trust Wills

There are three types of trust Will. These are property Wills, life interest Wills, and discretionary Wills.

Property

A property trust Will can help you if you have a property which you wish to protect for future generations. It can guarantee who benefits from your property if your surviving partner remarries after you die, or if they write a new Will after your death. It can also help reduce the potential impact of future residential care fees on a home.

Anyone who owns property with someone else can have a property trust Will. This is true whether they are married, unmarried or in a civil partnership.

Life Interest

A life interest trust Will can help if you have significant investments or assets as well as property which you wish to protect for future generations. It can guarantee who benefits from cash assets and investments if your partner remarries after your death, or writes a new Will after your death. It also allows you to pick a nominated person to benefit from the income generated from your investments if you die, whilst also protecting the capital value.

Anyone who holds cash assets and investments who wishes to take care of a nominated person, but also help protect the value of investments for a specific person can have a life interest trust Will.

Discretionary

A discretionary trust Will can help if you wish to appoint trustees to manage the inheritance of vulnerable people in your Will. It can guarantee that there is someone to help any vulnerable people manage their inheritance. It also reduces the potential risk of their inheritance compromising their state benefits.

Anyone who wishes to leave inheritance to loved ones who lack the mental or physical capacity to look after their own affairs, loved ones who have a disability and run the risk of their benefit entitlement being compromised, or loved ones who are in a vulnerable position can have a discretionary trust Will.

Trust Will Disputes

Unfortunately, there are situations where a trust Will may be disputed. This can happen when one of the trustees misinterprets the intentions of the trust, for example. If you want to challenge a Trust, then talk to The Inheritance Experts, as we may be able to help.

Here at The Inheritance Experts, we know how important it is for people to get their Will in correct order. If you are looking for advice on Wills, contact us today by filling in our contact form, or by calling us on 01614138763 to speak to one of our friendly knowledgeable advisors.

George Michael: Ex is Reportedly Suing His Estate

Posted on by Jonny

A recent report by The Mirror states that Kenny Goss, the ex of George Michael is suing his estate. He states that he did not believe George was of sound mind when he made his last will in 2013. He also states that, because he was financially dependent on George for the 13 years they were together, that provisions should have been made for him in the star’s will. If you have experienced something similar, then you may be able to make a claim.

George Michael Case: Mental capacity

Goss states that he believes George Michael lacked mental capacity when writing his last will. Sadly, this case is all too common nowadays, with the rise in diseases such as Dementia. Due to this, there are often cases where the person may not have had the mental capacity to write a will. If you have experienced something similar, then you may be able to make a claim.

We have written before about legitimate will disputes. Contesting a will based on lack of mental capacity is one of the cases you can make. This is important if there is strong evidence that the person was not mentally well enough when the last will was made. In this case, the previous will would be the valid one. In the example of George Michael, as with others, the will may be invalid.

However, you must provide proof that the person was not of sound mind, or lacked the mental capacity. So we recommend that you contact us to see if you are able to make a claim.

George Michael Case: Financial dependence

There are also provisions that can be made in a will to those who are financially dependent on the deceased. In the George Michael example, Goss is claiming that he was financially dependent on the star during their time together. Because of this, he believes provisions should have been made in the will for him.

Under The Provision for Family and Dependants Act, people who are financially dependent on the deceased may be able to make a claim if they were left out of the will. Certain factors will be taken into consideration, these are:

  • The age of the dependents
  • The nature and duration of the relationship with the deceased
  • Their expected quality of life if the person were still alive

In the case of George Michael’s ex, he can argue that, because George provided for him financially when they were together, that this provision should continue. He also states that and that he gave up his career to look after George during their relationship. If you were financially dependent on someone, and they passed away not leaving adequate funds for you, which you need, then you may also be able to make a claim.

How We Can Help

Here at The Inheritance Experts, we work with solicitors who have years of experience in dealing with Inheritance claims. This includes claims where the person did not have the mental capacity to make a will. It also includes claims for dependents. Therefore, this means that they are extremely well placed to help you claim the compensation you may be entitled to. Contact us today by filling in our contact form, or by calling us on 01614138763 to speak to one of our friendly knowledgeable advisors.

The Role of Mediation in Contesting A Will

Posted on by Jonny

Mediation is a very important tool in inheritance cases. Due to the sensitive nature of a lot of cases involving inheritance, it provides a level of care in what can sometimes lead to a very messy situation.

What is mediation?

Mediation is defined as intervention in a dispute in order to resolve it. In legal cases, it is a procedure in which the parties discuss their disputes with a trained impartial third party, who assists them in coming to an agreement, or settlement. This often happens out of court and therefore can make the process of contesting a will much swifter. It is also less formal than a court setting, which can be daunting.

What are the benefits?

  • Cost- The process of mediation still involves costs, including solicitors and mediators’ fees. These costs, however, are very likely to be significantly lower than the cost of going to trial.
  • Time- you can start mediation at any point during the proceedings. It happens out of court, meaning that it can save the time it takes to go through a trial.
  • Effectiveness- mediation is effective in 80% of cases.
  • Control- in mediation, the parties involved have more control in the outcome of a case. The main part of mediation is negotiation, whereas in court, this will be decided by a judge.
  • Confidentiality- The discussions involved in mediation are completely confidential. This does not happen in a court, and the settlement agreement will include a confidentiality clause. This keeps the terms of the settlement confidential.
  • Preserving relationships- in inheritance cases, you are far more likely to have a personal relationship with the other parties, or at least know them. As mediation is a means of negotiation, you are far more likely to be able to keep a relationship with the other people involved.

The process of mediation

The process can be as short as half a day. The parties involved agree on an independent mediator and venue in which to have the mediation. At the mediation, each party usually has their own room, where they discuss their views. The mediator will then go between the two to discuss what the other has said. The mediator will then work with the parties to come to an agreement that is suitable for all involved.

If the parties fail to come to an agreement during the mediation, then neither party can bring anything forward to the court case. It is free from prejudice, and the mediator will not discuss anything with the other party that they have not been authorised to say.

Mediation is less stressful than a court case. It allows you to voice your opinion and be heard, but in a less formal environment than a court room. Will cases particularly suit this method, as the parties discuss subjects that are sensitive. While there is more of an element of compromise, you will usually receive a settlement that is more favourable than one you would receive in a court. You will also be more actively involved in the settlement that you get.

We know that mediation may not always work, and some cases will end up having to go to court. The solicitors we work with are experts in settling matters both in and out of court. Contact us today by filling in the form or calling us on 0161 413 8763 to speak with one of our friendly expert advisors about your potential claim.

GUIDE: When is Probate Not Necessary for the UK?

Posted on by Jonny

The following guidelines can help to answer one frequently asked question we face: “When is probate not necessary in the UK?” However, we won’t spend too much time consuming the details of this question, either. That’s because, in effect, probate is required primarily when there is a piece of property in question.

Suppose you become responsible for the administration of the estate of a recently deceased family member. As a result, you’re also squaring the loss with the prospect of spending a long time stuck in the process of handling a probate’s many ins and outs. 

However, you might be surprised to discover that not all estates must go through formal probate in the first place.

Moreover, some of the testator’s assets – even for small estates – avoid the probate process altogether.

But to apply for a grant of probate on your own without inheritance plan attorneys is foolhardy and ill-advised. In truth, you should always speak with a capable probate attorney. Especially before reaching the conclusion that an estate doesn’t have to go through probate.

When is Probate Not Necessary? Some Examples

Yet we’ll explore these matters, and other parts of the estate, as well as we, guide you through whether probate is necessary in certain situations.

Joint Tenancies

In short, you do not need probate with regard to jointly owned property. Effectively, probate is excluded regarding those scenarios in which property in the estate is owned as beneficial joint tenants. By law, such property will automatically become wholly in the possession of the other owner.

As a result, there’s nothing to sort out through any probate courts – on the face of it.

There’s one critical exception, however: If there remains a mortgage on the jointly owned property in question.

Joint Tenancy vs. Tenants in Common

It’s worth noting the importance of a difference between joint ownership and tenants in common. Truthfully, whether a property is held as joint tenants or as tenants in common makes a difference to what happens to the property on the death of a joint owner. Be sure to speak your solicitor about this when it comes to estate planning, inheritance tax and letters of administration.

Joint Bank Account

You might sense a theme here: jointly-owned entities tend to be free from any need to apply for probate. Such is the case regarding bank accounts with beneficial joint owners. In essence, a joint bank account becomes entirely the asset and dominion of the remaining joint owner.

The rule of survivorship is the guiding principle on what happens to a joint bank account in the event of someone’s death. There is a couple of conditions, however, to consider.

  • In essence, it must be safe to assume that all monies that the deceased joint owner contributes will automatically be part of his/her estate in the first place.
  • Alternatively, probate or letters of administration might become necessary if other assets are not jointly owned.

The surviving account holder, in turn, holds all the cards in taking full ownership. To wit, they can simply show the bank/building society the death certificate of the other joint owner. Accordingly, the bank transfers the account into the survivor’s name.

It’s worth noting that exceptions to this might be if both joint owners come to an agreement to do otherwise.

Certain Types of Life Insurance

Indeed, some kinds of life insurance may also be exempt from probate laws. Citizens Advice advises that some life insurance policies can pay out the remainder of the outstanding balance regarding a mortgage, too.

If there is a mortgage on the property, there might be a life insurance policy, an endowment policy, or mortgage protection policy which will pay the outstanding mortgage if the person with the mortgage dies. In this case, you should write to the company, asking for a final statement.

Moreover, such scenarios might lead to the sale of the property and that which comes with such a major change. If that does occur, the mortgage is covered out of the sale of the property.

The Amount of Money in the Estate is Small

Now is where things tend to get a little bit more tricky. Smaller estates, in terms of the monies up for grab, do not tend to require probate either.

One huge factor affecting this might lie in funeral planning and other burial costs. These, in turn, can affect the size of the remaining money still part of the estate.

After the funeral expenses have been paid, the amount of money remaining is under a certain amount. Therefore, those controlling the estate (that is, banks and building societies) might be ready to release it to you without requiring the need to apply for probate or letters of administration. In effect, it’s quicker (and simpler) for them to just do this than to go through the entire probate process.

Also, some banks and building societies will release money needed to pay for a funeral, probate fees and inheritance tax.

From one estate to the next, however, please note that what constitutes a “small amount of money” will vary. As a result, it’s difficult to set a benchmark as to what constitutes “small.”

Insolvent Estate

In the tradition of the small money estate, the insolvent estate is also rather precarious. Effectively, in this scenario, you discover that the estate is insolvent. As a result, there is not enough money in the estate to pay all the debts, taxes and expenses.

This potentially devastating effect on the estate’s viability also doesn’t require the pursuit of probate.

Need to find when probate is not necessary? Call us!

Contact The Inheritance Experts if you’re considering contesting probate or the respondent in a probate dispute. We listen to your story and offer capable legal advice on whether you have ground to contest probate. If that is the case, we’ll be glad to show you the proper way to proceed with your claim.

Video Will Witness Practices are Now Legal

Posted on by Jonny

It’s now official: a witness to the signing of someone’s Will by video is now acceptable. A video will witness (two of them, specifically) becomes acceptable to make a will valid in England and Wales.

Valid with a backdate of 31 January 2020, the ruling carries on for at least two years. That particular date is significant in Covid-19 trace history: it represents the first confirmed coronavirus case in the UK. 

The video will witness news comes amidst an effort to limit the necessity of in-person witnessing of wills due to social distancing precautions. Before that date, the will would by law be invalid if witnesses were not physically present.

A Pandemic-led Response

But such is another casualty of the Covid-19 pandemic. As a result, any wills witnessed remotely via video link are legitimate in England and Wales. In turn, this makes it easier for people to record their final wishes during the pandemic.

Reports show the law will be in effect until January 2022, thus reducing the potential complications Covid-19 presents to inheritance matters. For instance, the ruling can minimise estate backlogs or reduce the number of occasions where a will is not formalised. Older populations throughout the UK and the world alike are at risk due to the disease. Accordingly, Will & Testament complications may also avoid a sudden spike.

Government has deemed legal this turn to video legality by amendment of the Wills Act 1837. 

Certain Specifics of Video Will Witness Laws

Below are some of the more notable bits from Guidance on making wills using video conferencing. The guidance went live 25 July 2020 and is on offer from authors at the Ministry of Justice.

Exceptions to this ruling in England and Wales

Video conferencing witnessing will apply to wills made since 31 January 2020, but with two significant exceptions.

First, any cases where the issuance of the Grant of Probate in respect of the deceased person (testator) occurs.

Second, any cases where the application is already going through the administration process.

Video Will Witness practices are a temporary addition to the Wills Act 1837

The Guidance makes clear that the video conferencing witness validity is the only significant change to the nearly 200-year-old legislation. Moreover, it takes space to mention specific things that remain true about carrying out a valid will.

For example, a testator still must have ‘testamentary capacity’ (i.e. know what they are doing and can effectively express their true intentions). Also, however the witnessing of the signing occurs, you still officially need two witnesses of that signing. Plus, witnesses must still either sign the will or acknowledge their signature of the will in the presence of the testator.

Coupled with January 2022 end date, the rule is also only temporary in nature as a response to social distancing and self-isolation measures.

The Head and Shoulders Rule

For the duration of this add-on, a view of the actual signing itself is critical. From the Guidance:

Before signing, the will-maker should ensure that the witnesses can see them actually writing their signature on the will, not just their head and shoulders.

The Clear Line of Sight Rule

In addition to video will witness, the Guidance also lays out three other scenarios wherein wills can become witnessed and valid. Included in these are:

  1. Through a window or open door of a house or a vehicle.
  2. Additionally, from a corridor or adjacent room into a room with a door open.
  3. Also, in the outdoors from a short distance (for example, a garden).

Additionally, the ruling states there must exist a clear line of sight for the witnesses of the will-maker signing the will. These are meant to denote acceptable safety precautions for will witnessing in a social distancing world.

Video and Audio Must be of Sound Quality

Difficulties with video connections become common in a remote society, unfortunately. The Guidance also is aware of how this can go haywire. Ministers advise that all parties ensure video and audio quality broadcasts a clear understanding that a will signing occurs.

Treat this as a Last Resort

The Ministry of Justice, however, encourages that people continue to arrange physical witnessing of wills. The case in the UK, with this temporary measure, allows video-link witnessing but hopes it will remain a last resort.

What insiders are saying about the video will witness

Justice secretary Robert Buckland told The Independent: “We know that the pandemic has made this process more difficult. Which is why we are changing the law to ensure that wills witnessed via video technology are legally recognised.”

“Our measures will give peace of mind to many that their last wishes can still be recorded during this challenging time while continuing to protect the elderly and vulnerable.”

Rob Cope is the director of Remember A Charity. He tells Civil Society’s Val Cipriani that charities, in particular, could benefit significantly from the news. Moreover, it could lead to an increase in will writing.

“Ultimately, the more people that write a will, the greater the potential for including a charitable donation,” he says. “Even a small increase in the proportion of people leaving a gift in their will could generate millions for good causes each year.”

Inheritance Act Claims: Who Can Make Them?

Posted on by Jonny

There have been many government provisions for England and Wales that enable people to make Inheritance Act Claims. To bring a claim, a grant of probate means that only certain parties will fit within the circumstances of the case for compensation.

Below, we list some of the leading laws governing inheritance provision for the family. We’ll then turn briefly to who specifically can make a claim under the inheritance laws.

Critical Inheritance Acts Over The Years

Inheritance (Provision for Family and Dependants) Act 1975

This is the coup de graçe of all provisions regarding inheritance rights and claims. It attaches not just monetary assets as provisions of the deceased’s estate, but also any property and holdings.

Moreover, this can even include holdings disposed of in the six years prior to death.

Inheritance (Family Provision) Act 1938

The 1975 act is an update of the Inheritance (Family Provision) Act 1938. The 1938 version effectively establishes persons that can apply to the court for financial provision. In essence, the Act states the following.

Without overruling the terms of the will, it gave the surviving spouse and the dependent children the right to apply to the court for maintenance out of a deceased person’s estate.

Inheritance and Trustees’ Powers Act 2014

Time coupled with changing mores brought the law’s appreciation for modern family structures. The 2014 Act addresses matters equalising the rights of both a spouse/civil partner of the deceased to make a claim. It also tackles what had been more absolute rights of the spouse to the first £270,000 of an estate plus personal belongings.

Additionally, a child of the deceased gains additional rights to financial resources as a beneficiary of the estate. Now, the child does not need to enter into the parent/child relationship as a result of marriage.

Administration of Estates Act 1925

From the 1925 Act came many of the succeeding acts and amendments to modernise the law, too. Personal property (aka “Chattels real”) was finally coupled with real estate in the estate’s size and nature.

Here’s a relevant side note: This law repeals up to 12 different acts regarding estate circulation.

Who Can Make Inheritance Act Claims By Law?

According to the Inheritance Act 1975, certain people can offer claims according to their own personal obligations and responsibilities. These people are:

  • A spouse/civil partner of the deceased.
  • A former spouse/civil partner.
  • Children of the deceased, including children or adoption or those reasonably brought into a family.
  • Financial dependants of the deceased.
  • In certain cases, cohabitees, who nevertheless must meet certain criteria.

From spouses to children, many financial dependents can make inheritance act claims against a will

How Courts Review Inheritance Act Claims

In many circumstances, claims under The Inheritance Act can be resolved by mediation. Working together with all parties, you may not have to go to court.

That said, it’s not always true that your claim will avoid the court system. Accordingly, one question we often receive is about the procedure for inheritance act claims.

Basically, when someone makes these claims, there are several factors (aka Section 3 Factors) the court will weigh and judge.

  • First off, the court considers the claimant’s financial needs in both the present and foreseeable future.
  • Next, the court weighs the financial needs that any other claimant might have.
  • Additionally, they’ll look at the financial needs of any beneficiary of the estate.
  • Specifically, any financial obligations the late party had to any claimant/beneficiary under The Inheritance Act.
  • Another considerable factor is the size and nature of the estate left behind.
  • Not to mention, any eligible claimant/beneficiary who has a physical or mental disability.
  • Some other matters can become relevant. These include any so-called relevant behaviour(s) and conduct of the claimant or any other person.

Is There A Time Limit On Making Inheritance Act Claims?

Specifically, you have six months after the Grant of Representation (i.e. Grant of Probate) to make an Inheritance Act Claim.

Uniquely, it’s not out of the question that when this limit expires you cannot make a claim. First, you need to contact the court, who furthermore must grant your right to make such a claim. Of course, it’s much easier to stay within the half-year window and remove all doubt.

Speak With The Inheritance Experts

Speak today with one of our inheritance experts: we can help you build a solid inheritance act claims case. We can even help if you are an executor who is managing an estate under contest. Similarly, we understand Inheritance Tax and other financial affairs associated with the estate. For more on contesting a will and Inheritance Act claims, read about:

The Process of Contesting a Will: Some Key Points

Posted on by Jonny

The process of contesting a will in England and Wales demands that you take several things into account. Namely, you need to take stock at the early stages to understand if the will is valid legally.

You’ll also need to check your own capabilities in handling potentially contentious probate. It won’t be easy with siblings, children, loved ones and all other parties added into the process. Furthermore, you’ll get into the weeds of some rather difficult issues.

  • Checking medical records of others (including the deceased party).
  • Investigating potential actions of undue influence.
  • Alternatively, understanding of what life looks like as a losing party after contesting a will.

Admittedly we have some bias on the matter of what kind of solicitors you should turn to. However, a no-win, no fee Inheritance Experts solicitor specialising in probate registry challenges definitely helps. Below, we’ll walk through elements of the process of contesting a will.

The importance of The Inheritance Act of 1975

For the sake of clarity, the above law’s long name is the Inheritance Provision for Family and Dependants Act 1975. In short, the Act is one of the most important legal documents pertaining to the process. The main thrust: stipulating the validity of a person to bring a claim against an estate.

Notably, as The Gazette puts it in challenging the myths of this law:

“the Inheritance (Provision for Family and Dependents) Act 1975 makes provision for a court to alter the distribution of the estate of a deceased person. …To any spouse, former spouse, child, child of the family or dependant of that person. …In cases where the deceased person’s will or the rules of intestacy fail to make ‘reasonable financial provision’.”

If the process goes forth, a claimant alleges the will didn’t make a reasonable financial provision for them. More recently, amendments to the law now account for the rights of civil partners in the process.

So who can undertake the process of contesting a will?

To summarise who has access to make a claim, take note of the following categories below.

  1. Firstly, direct family members, including children or grandchildren.
  2. Secondly, a spouse or civil partner can challenge a will.
  3. Any beneficiaries (for this to occur, a previous will must specifically name the beneficiary in question).
  4. Any person reliant on the deceased financially.
  5. A person who expects an item by the late party, but the stipulation doesn’t show up in the will.
  6. There’s also the matter that any creditor that the late party still owes money to is part of the process.

Essentially, being part of the family, being an ongoing beneficiary, or even a friend clearly helps your case.

The Process of Contesting a Will is considerable

What parameters allow you to enter the process of contesting a will?

Here, we’re going to address the four parameters you must meet before you contest a will.

  • Firstly, you need to have the legal right to contest the will.
  • Secondly, you must have a valid reason or sufficient grounds for contesting the will.
  • Third, you’ve made this contesting of the will before the time limit has run out.
  • Finally, you must raise sufficient evidence that supports your claim.

Which begs the question: have you met any of these requirements? If so, contact our inheritance specialists as soon as possible. In turn, you can make a challenge before the grant of probate. Probate, remember, means that the will has been proven to be valid.

Some of you will surely ask, What about contesting a will after probate? Yes: it can, and we address it on our Contesting a Will page.

How a solicitor helps you in the process of contesting a will

Your solicitor will work with you so that you understand all areas of the law.

One of the first steps to doing this is to apply for a copy of the death certificate. With that, you’ll have critical legal document information like name and last permanent address for the deceased.

Your solicitor will work with you to build up a strong case in your favour. The process will then move to mediation, and, beyond that, the court system.

What legal grounds allow you to contest a will?

The readers of our blog will note that we’ve written previously in Do I Have the Legal Right to Dispute a Will? Below, we share several legal grounds for contesting a will.

No valid execution of the will

If certain formalities are not met, a will may become invalid. Some include:

  • It needs to be in writing (typed or handwritten)
  • Additionally, it has the signature of one of two parties.
    • Ideally, the testator his or herself, although this may not always be possible.
    • Alternatively, another person signs the will in the testator’s presence (complete with his/her direction).
  • Moreover, when the testator signs the will, they truly want it to take effect.
  • Ultimately, these actions occur in the presence of a minimum of two witnesses.*

No knowledge or approval of the will

This reinforces the above scenario about the need for multiple witnesses.

Undue influence

Accordingly, you can challenge the will over undue influence. The fact is, some parties may exert undue influence over a vulnerable testator. If they’re not sound of mind, this can be an especially sensible set of grounds for a challenge.

Revocation

Intention is critical when ruling for revocation of the will.

Effectively, a will is invalid if the destruction of the will occurs. There are two key factors in proving this with your challenge.

  • First, either the testator or someone in their presence and at their direction destroys the will.
  • Additionally, those above parties – in destroying the will – do so in order to revoke the will.

Lack of testamentary capacity

Effectively, this means the will was created and/or amended when the testator was not of sound mind or mental capacity. The issue often arises in cases where Alzheimer’s Disease becomes a factor for the testator. Such a will could be subject to unintended influence.

Above all, it’s critical that you have the evidence to prove a lack of testamentary capacity.

If you seek legal advice to challenge a will, contact The Inheritance Experts today.

More about Will disputes

We offer a wealth of insights here on this blog regarding will disputes and inheritance challenges.

*Additionally, the will must be both signed and witnessed by those parties.

Key Terms to Know For a Family Dispute Over Will

Posted on by Jonny

A family dispute over wills exacerbates what’s already a difficult period of time for any family. Throw the struggle amongst siblings and extended family members over the legitimacy of a legal document aside. Above all, there’s the added pressure of the loss of a valued loved one. 

In time, you’ve got a recipe for family business disaster. Just tack on a few ingredients: 

  • First off: money.
  • Then add on real estate.
  • Not to mention the additional non-family parties involved in probate.
  • Some sibling disputes always give the recipe a bit of zest.
  • Finally, the intricacies of a blended family (where applicable).

So there are some questions you’ll undoubtedly have about the process of disputing a will. The one we aim to answer below is “What language are these lawyers speaking?”

Family Dispute Over Will Terminology Guidance

In this piece, our goal is to lay out the key players and common vocabulary involved in a will dispute. The Inheritance Experts know the subject inside and out. So treat this post as an A-to-Z guide of definitions for the personnel and terms involved in any probate.

PERSONNEL

Administrator / Estate executors

These are different, but they have relatively similar roles at the end of the day.

If no will exists or the will does not name an executor, an administrator will be appointed.

If a will does exist and such a person is appointed to administer the will’s intentions, that person is an estate executor(s). By designation, this person or these people are declared in the will by the deceased as the party best equipped to carry out the wishes of the deceased person.

An estate executor presents the will for probate to a judge. By law, funds and assets are frozen from disbursement amongst beneficiaries until a probate judge approves it.

Beneficiaries

This is the common area where sibling rivalry comes into play. In general, a beneficiary is any party or person in the will who becomes a recipient of assets or monies within the estate plan. 

Please note that this can include matters of sentimental (as opposed to monetary) value. For instance, assets such as a pet, figurine, rose bush or toy can fall into the designation of sentimental value.

As you can imagine, some beneficiaries aren’t going to be satisfied.

Discretionary beneficiaries

These are individuals or entities that a grantor names in a trust, life insurance policy, or retirement plan. What makes them different from regular beneficiaries is that they have no legal proprietary interest.

Estate Planning Attorney or Personal Representative

This is a specialist solicitor whose expertise lies in advising clients in planning their estate. As a result, these lawyers know the laws and intricacies surrounding the creation of a will.

Guardian

A guardian is a person who can look after the interests of a child in estate matters. In Scotland, the age constituting the need for a guardian is 16; elsewhere in the UK, children are under 18 years old.

Trustee

If a certain beneficiary is unable to hold property yet, a trustee will do it for them until they are permitted. Furthermore, the trustee is responsible for administering the trust assets.

Family Dispute Over Wills can get contentious - it helps to know the terminology and principles involved.

With a family dispute over wills, things can get contentious. So it helps to know the terminology and principles involved.

PROCEDURAL TERMS

In the process of handling the family dispute over wills, there’s certain common vocabulary you’ll need to be aware of.

Assets

Assets, in short, consist of property owned by the person who died. These include a house, household goods, savings or investments. 

Bequest & Chargeable Gift

A bequest covers gifts disseminated in the will.

Chargeable gifts are similar but are so valuable as to require payment of an inheritance tax.

Codicil

This is a document that has the power to amend (but to be clear, does not necessarily replace) a will. Because a codicil has the power to adversely affect a will, a re-write tends to be the more common course of action.

Grant of Probate

A grant of probate is an official legal document from the Court confirming that the will’s executor has the authority to act. In turn, this document validates a will and makes the distribution of the assets possible.

  • In Scotland, this document is a Confirmation of the Estate.

Inheritance tax

This is the tax monies payable when an estate exceeds the current inheritance threshold. As of 2020, this amount includes estates at or above £325,000.

Intestate

In short, an estate becomes intestate when the person dies and they don’t subsequently leave a legally valid will.

Legacy

A legacy applies to a specific gift or cash item left in a will (the rose bushes, for instance). Any property, however, cannot be a legacy gift.

  • A gift of money is a Pecuniary legacy.
  • When the legacy is a specific gift or object, it’s a Specific legacy.

Residue

This is a term that addresses the remaining balance of the estate after all payments have been made. In essence, these payments include funeral expenses, debts, legacies and any other taxes.

  • The party who is receiving the residue balance is a Residuary beneficiary.

About the Inheritance Experts and a Family Dispute Over Will

This post is part of our ongoing series covering issues about contesting a will and securing your inheritance. Our goal is to keep you informed on the latest issues and risks involved with disputing wills and probates.

Explaining Probate: Define an Essential Inheritance Matter

Posted on by Jonny

Explaining the Probate Application

When a person dies, it is necessary by law that all of their personal affairs must be put in order. Below are our thoughts on probate define, as part of our guidance on what commonly happens with a probate challenge.

This is ‘Probate’ and includes ensuring that their estate receives finalisation. The person who finalises the estate is their Executor. However, the executor only has the right to access the testator’s estate once they apply.

In this guide, we will explain what probate is. Especially:

  • the grant of probate;
  • what the purpose of it is;
  • how long the probate process typically takes in the UK and;
  • why probate is necessary to deal with the deceased person’s situation.

Probate: Define why it’s necessary

Also known as ‘Confirmation’ in Scotland, probate definition is the legal process of executing a will and settling a testator’s* estate.

It is important to know that the term ‘estate’ does not simply refer to any property the testator owns. It also includes:

  • making an inheritance tax return to HMRC and paying the tax due;
  • their possessions;
  • their cash holdings and; any land they may own, as well as;
  • any financial obligations they have, 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 testator’s estate and to make executive decisions on their behalf. Another term for this type of person is Personal Representatives.

Probate: Define What It Does

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

  1. Finalise all bills and close the testator’s accounts;
  2. Settle debts they did not pay in full yet;
  3. Sell or transfer property the testator owns;
  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 the will outlines, or as the government decrees.

Who Can Apply?

The person who serves as the executor of the will is most often the one who applies for Probate. Executors tend to gain their role through declaration in the will.

However, the situation might arise where the Executor dies. Accordingly, an Executor might also not get a declaration in the will. Moreover, there might not be a will in the first place.

In these cases, the following people can apply for probate instead:

  1. The testator’s surviving spouse. Additionally, this can be done regardless of if the couple is in separation at the time of death.
  2. Also, the children of the testator can apply;
  3. Finally, any other close family members.

If you believe the person who applies for probate is not fit to administer the estate, 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 of what happens if you contest a will and take it to court without a reasonable chance of winning. Accordingly, there is a good chance you will be wholly liable for the cost of taking such action. Moreover, that includes the costs of the other side and the court costs.

Probate: Define Who Can Apply

The person who has the right to apply for probate^ can either:

  • apply online through the government website or;
  • hire probate 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 Letters of Administration. There’s also the matter of an intestate estate, in which the will parties present to the probate court nevertheless earns an invalid declaration.

When you apply, you will need the following information to send in either online or through post as part of the process of administering:

  1. The original Will;
  2. The original Death Certificate or Interim Death Certificate;
  3. Confirmation of an estimate of the estate’s value, critical for estate planning, real estate issues and more.

You will also have to to fill out a few forms. Which forms those consist of in particular will depend on which nation within the UK the testator lives.

For example, suppose the testator lives in England or Wales. In that case, you’ll need to fill out the PA1P application if they have a will. If there is no will, instead it will be the PA1A application.

In Scotland, these forms are officially the C1 and C5 documents.

Once you apply, you will need to send the original documents to the local Probate Registry. You’ll also send along:

  • a fee of £215 if the estate’s potential worth is greater than £5,000.
  • However, if the estate’s potential worth is under £5000, there is no fee to pay.

Probate: Define when it’s not necessary

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

How we can help with probate

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. For probate purposes, this means they can effectively support and assist 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.

*A testator is another way of saying a deceased person for whom the will is made for.

^For example, those who are named by either the executor or a close living relative.

Three Legitimate Will Disputes

Posted on by Jonny

The majority of wills and estates receive proper managerial touch and execution. In essence, wills (according to the law) stipulate exactly what the late party wants to happen to the various parts of their estate. However, legitimate will disputes are a reality of handing out the contents of an estate.

Accordingly, a will can be improper occasionally. Alternatively, reasonable suspicions could occur alleging legitimate will disputes.

  • For instance, someone may face accusations of tampering with the will.
  • Also, the will is allegedly not legitimate.
  • Possibly, the deceased dealt with pressure to write the will in a certain unfair manner to their beneficiaries.

Therefore, there can be a number of legitimate will disputes. It is also worth remembering that, in the majority of cases, there is a six-month period where any disputes must be filed, although there are different timescales depending on your reasons for disputing a will.

In this guide, we will outline three of the main reasons why a will dispute may occur.

Legitimate Will Disputes

1. An invalid will

There are strict guidelines in place that cover the legal and procedural requirements of a legally binding will. One of the more common will dispute cases stem from claimants who believe that the will is invalid.

Reasons why a will can be invalid include:

If you want to dispute the validity of a will, you must provide evidence to support the claim. Regarding testamentary capacity, it’s up to the estate executors to establish the testator’s mental capacity. If the will is declared invalid, then the rules of intestacy take effect.

2. Claims of dependency

The Provision for Family and Dependants Act 1975 covers those instances where a dependent has not received sufficient provisions in the will. For instance, consider if the testator was providing for someone financially up until their death. In that situation, it’s possible to claim that this financial providence must continue after they have died.

In most dependency claims, the claimant is a spouse, a child, a cohabitee or a close family member or friend. Courts will consider several factors.

  • Firstly, the age of dependents.
  • Next, the duration and nature of the relationship with the deceased
  • Finally, their expected quality of life if the testator were still alive.

Courts may then award a lump sum or a series of maintenance payments.

3. Additional legitimate will disputes

If the above factors are not relevant, a will can still be changed if a claimant believes that an original will has been lost, or if property and finances have been disputed by another potential owner. These instances will require the claimant to provide evidence to start their claim.

How we can help

It is essential that you seek legal representation from a solicitor who specialises in will disputes as early as possible. Because time limits apply (depending on the type of dispute that you wish to make), the earlier that you begin the process, the more likely that you avoid unnecessary complications to the process.

At The Inheritance Experts, we work with specialist law firms who have a proven track record in helping people when they want to dispute a loved one’s will. 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.

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