divider

Archive


Applyoing for probate can seem daunting - we can offer light at the end of the tunnel

How Does Probate Work?

/ 0 Comments

What is Probate?

When someone has passed away, there is a series of steps that must be taken with regards to their property, in order gain the right to distribute the estate according to their wishes as set out in their will – or if there is no will, the rules of intestacy. Probate is the process by which a deceased person’s will is declared valid, and executors of the will are given the right to wind up the person’s affairs and distribute their property according to the provisions in the will.

The role of the executor in probate

Wills have executors, individuals appointed with the responsibility to deal with the property in the will according to its provisions. This will involve paying off all of the person’s debts and transferring property or money to the beneficiaries named in the will. Executors are appointed specifically by name in the will document. In order to gain the right to distribute the property, for example, by gaining access to bank accounts, the executors must first apply for a grant of representation.

Steps to Applying for a Grant of Representation

Firstly, if it has not already been done, the executors must register the death and acquire the death certificate. Secondly, often with the help of a solicitor, the executor must complete a probate application form: “form PA1”.

Inheritance Tax Form

The executors will then complete the inheritance tax form. There is no inheritance tax to pay on an estate that is left entirely to a spouse or civil partner. Also, if the estate is worth less than £325,000, there will not be inheritance tax to pay. The standard rate of inheritance tax is 40%, payable on anything over the £325,000 threshold. (The first £325,000 will not be subject to inheritance tax).

It is vital to fill out the inheritance tax form, even if the executor does not think there is inheritance tax to pay.  Moreover, it is important for the executors to complete the inheritance tax form carefully because there are financial penalties for submitting a form with incorrect information.

Sending The Application: Things to Include

Next, the application must be sent to the Probate Registry. The application for a grant of representation should include:

  • An official copy of the deceased person’s death certificate
  • The PA1 Probate Application Form
  • The Inheritance Tax Form (as explained above)
  • A £215 application fee
  • The original will, as well as 3 photocopies and any codicils (official documents that update the will)

Swearing an Oath

Finally, once the application has been processed, the executors of the will are sent an oath that the information they have provided is correct. The executor will then arrange an appointment at the local Probate Office to swear the oath. This is the final step to applying for a grant of representation.

The Position if there is no Will

When someone dies without a will, an administrator will be appointed carry out the distribution of their property. If you are the next of kin of the deceased person, such as their spouse or child, you can apply for a grant of representation to act as administrator. The administrator will oversee the distribution of property according to the intestacy rules. The intestacy rules outline the order of who will inherit from a deceased person who did not leave a will.

Challenging a Will

If you have concerns about the validity of a will, and are considering raising a will dispute, it is advisable to challenge the will before probate is granted to the executors. To raise your concerns, it is necessary to enter a caveat at the Probate Registry. In order to enter a caveat, you must complete the PA8A Form and submit a £20 fee to the Probate Registry. If there is a caveat on the will, probate will not be granted until your will dispute is resolved. Therefore, it is important to act quickly and enter the caveat as soon as possible to prevent the estate from being distributed based on the provisions of a will that you believe to be invalid.

If you are concerned about a will and need advice about how to act fast before probate is granted and the deceased’s property is distributed, get in touch with us at Willclaim solicitors. We are experts in handling will disputes, and can usually act on a no win no fee basis. Call us on 020 3322 5103, or complete our free claim assessment request.

Read More
separator

sometimes you get the feeling that someone is acting suspiciously in relation to a will

Spotting suspicious behaviour surrounding a will

/ 0 Comments

We’ve been handling will disputes for many years, and have found that there are a number of common themes which raise suspicions that all is not as it should be with the will concerned.

Challenging a will is a big decision to take, especially in the sad circumstances where a loved one has died. You may also be unsure if you are right to be taking this step – you may ‘feel’ that things are not right in relation to the will of your loved one, but be struggling to pinpoint why this is the case. Suspicious behaviour before, as well as after, the death can often be identified and should be a cause for concern, even though no action can be taken to dispute a will until after the Testator has died.

We’ve brought together a list of the matters that our clients commonly raise when they speak to us, which usually indicate that the circumstances surrounding the making of the will are suspicious and warrant further investigation relating to the validity of the will.

Before death

Unlikely friendships Of course, everyone is free to build relationships with anyone they choose, but in some cases, a relationship develops which is out of character for your loved one. It is not uncommon in this context for your loved one to start to display behaviour towards you which is less affectionate, or even overtly suspicious or hostile.

A drop in communication If your loved one has become confused as the result of illness such as dementia, or simply been manipulated by someone else into making a will which excludes close family, the person responsible (perhaps a new carer or partner) may make deliberate attempts to take over all communications on behalf of your loved one, and limit your access to him or her. You may not be aware that this is what is going on in the background, but if you notice a change in how your loved one communicates with you – or in how often you are invited or allowed to visit, there may well be something untoward going on.

Reliance on a particular person If your loved one is already vulnerable, perhaps suffering from memory problems or other mental health problems, or a long term physical condition, they are more open to being manipulated. We have come across situations where people have taken advantage of this by allowing the loved one things that they have been advised not to have – or do (such as drinking alcohol or driving). Equally, where someone is vulnerable in these circumstances, an unscrupulous individual will exploit this by planting unfounded suspicions about family members who would otherwise be included in the will into the mind of the will writer. Again, it is hard to know that this is happening, but if your loved one is increasingly favouring one person over everyone else, and their behaviour towards others changes and becomes more hostile, this may well be what is going on.

Change in professional advisors If your loved one suddenly changes solicitor or GP in the run up to writing a new will, this can indicate that something untoward is going on. If someone is seeking to manipulate your loved one into writing a will in particular way, they will want to avoid the involvement of professionals that may challenge what is going on.

After Death

Lack of communication Sadly, if there has been manipulation, undue influence, involved in your loved one’s will, you may well not find out straight away that they have died. When someone has become close to a testator with a view to influencing their will, they will want to prevent the family (or the rest of the family, if a family member is involved) knowing that the individual has died.

Hi-jacked funeral Just as distressing as being late to find out that your loved one has died, we have noticed that when a testator has made a will in suspicious circumstances, the person or people responsible for manipulating the testator may also try to take over the funeral, dismissing the views and feelings of the family, and focussing on the importance of ‘friends’.

Concealing the will If a new will has been made that disinherits family in suspicious circumstances, those responsible (whether an individual or small group of people) may often conceal the existence of the will, and accuse genuine enquirers of only being interested in the money. Alternatively, they may deny all knowledge of the will, even when it becomes clear that they have played a role in the creation of the new will. You may also find that a solicitor refuses to disclose a will on the grounds that it is “confidential to the deceased” – spurious because once probate is granted, a will becomes a public document! More likely is that this is a ruse to prevent close relatives from realising what has happened, and entering a caveat to prevent the grant of probate.

Swift action to apply for probate While it is normal to apply for probate relatively quickly after someone has died, in some cases, we find that the application for the grant of probate has been pre-prepared in advance of the death, which means that probate can be applied for immediately in an attempt to prevent the will being challenged.

You may feel uncomfortable raising concerns about the circumstances in which a will has been made – for fear of being accused of ‘only being interested in the money’. However, it’s also the case that if your loved one has been manipulated by someone into making a will that doesn’t reflect their true wishes, that person will say this sort of thing to try and stop you making further investigations.

If you have concerns about a will that you would like to discuss, why not talk to us? We offer a free claim assessment , and can handle most cases on a no win no fee basis, if you decide to take things further.

Read More
separator

adult hand against a white background indicating that entering a caveat will stop the probate process

Entering a Caveat to raise your concerns

/ 0 Comments

In the emotionally charged period following the death of a loved one, you may become aware of circumstances that make you concerned about the contents of their will – but what can you do? In our blog we look at some of the practical steps you can take, including entering a caveat on the Probate Registry.

Moving quickly is vital

You may have concerns about the way a will was drawn up – perhaps you think the person who made the will – the Testator – was bullied into leaving his or property in a particular way, or did not know what he was doing when he made the will. Perhaps you have been included in the will, but feel that you have not been left a reasonable amount. Whatever your reasons for challenging the will – be it that you wish to challenge the validity of the will itself, or simply challenge the way the Testator’s assets will be distributed, it’s vital to move quickly.

Time limits – and the question of evidence

If you want to challenge the amount of money or property you have been left, by bringing a claim under the Inheritance Act, there are certain time limits you must stick to, otherwise you will have left it too late to bring a claim before the courts.

If you are challenging the validity of the will itself – for example because you think the Testator did not know what he or she was doing, or properly understand the contents of the will – or because he was made to make his will in a particular way – there is no specific time limit to bring the claim before the courts. However, you need to bear in mind that the longer you leave it before taking action, the harder it will be to gather strong evidence to support your claim. In these types of cases, evidence from people who knew the Testator will often be vital – and as time goes on, memories fade, and the people you need may themselves pass away. This means you will be left without the evidence you need to prove your case.

Entering a Caveat

If you are intending to challenge the validity of a will, one step that is very important to take before you do anything else is to enter a Caveat with the Probate registry. This is the official way to flag up your concerns about the will. Once you have entered a Caveat, a Grant of Probate cannot be made. This means you can bring your claim to challenge the will before the Testator’s estate has been distributed.

Some points to bear in mind about entering a caveat

  • You can enter a caveat without a solicitor
  • The process to enter a caveat simply requires you to contact your local Probate Registry with the full details of the Testator – full names and details of his death. It currently costs £20 to enter a caveat, and you must make an application using form PA8A. More details can be found on the Government website
  • A caveat lasts for 6 months – you may need to renew the caveat if you have not resolved your claim by then
  • You can withdraw a caveat at any time
  • Someone else who wants probate to go ahead can issue a ‘warning’ to remove the caveat. If this happens you will be notified and you will have 8 days to respond.
  • If you are planning a claim under the Inheritance Act, you shouldn’t enter a caveat – rather enter a ‘standing search’ so that you will be notified once Probate has been granted and the 6 month period for bringing your claim starts to run.

Even if you have entered a caveat without legal advice, it’s vital that you gather together any evidence you have that the will in question is invalid. You should seek specialist legal advice about the strength of your claim and any additional evidence that you will need to try and obtain to strengthen your chances of success. We offer a free claim assessment for people considering bringing a challenge to a will – why not get in touch?

Read More
separator

inheritance act claims for reasonable financial provision

Will disputes – taking action before the testator has died

/ 0 Comments

If you suspect that someone has made a will in suspicious circumstances, is there anything you can do before that person dies?

The papers have recently reported a number of situations where high profile individuals: Bill Gates, Nigella Lawson and the like – have declared their intention to leave the majority of their fortunes to charity rather than their children. In these cases it seems unlikely that there is anything untoward going on – but what happens if you suspect that a relative is being put under pressure to draw up a will that does not reflect his or her true intentions?

A recap on the grounds for challenging the validity of a will

It’s worth remembering that there are specific grounds to challenge the validity of a will. These are:

  • The will must be correctly signed and witnessed;
  • The person making the will (the testator) must have the mental capacity to do so, and understand the extent of their estate and who they are leaving it to;
  • He or she should know and approve the contents of the will; and finally
  • There is no undue influence being placed on the person making the will

It is quite difficult to challenge the validity of a will on any of these grounds, usually because by the time the contents of the will have been made public, the testator is dead and cannot speak about his or her state of mind and what was going on at the time the will was drawn up and executed (signed and witnessed).

Action before death

The basic rule is that even if you suspect that someone has drawn up a will that is somehow invalid for one of these reasons, you cannot bring a challenge until the person has died. If you have suspicions about a will, it is important to enter a Caveat at the Probate Registry, which will mean that probate (and therefore the distribution of the estate according to the will you wish to challenge) cannot go ahead without an investigation into the circumstances. However, this cannot be done until the testator has died.

In some states in the USA, there are provisions which allow the provisions of a will to be challenged before the testator has died. Once a will has been drawn up, the beneficiaries, and family members who have been left out, are advised of the contents of the will and then have a specific period to challenge the will. If no challenge is brought in this specific time period, those individuals cannot challenge the will at a later date.

Steps to take

If you are aware of circumstances that could invalidate the will, you can take steps to improve your case by collecting as much evidence as possible while the testator is still alive. Evidence about his or her mental state, for example. Where you feel undue influence is being exerted over the testator, it may be worth talking to professionals involved in his or her care and raising your concerns that way; gather as much evidence as you can – bearing in mind that this may be difficult. You could even talk to a specialist lawyer who deals with will disputes to see what they recommend in the particular circumstances you are experiencing.

If you are concerned about the welfare of a close friend or relative and how that may have an impact on arrangements for their estate, you may need to act quickly following their death, either to prevent a grant of probate or letters of administration, or to bring a claim that you have not been adequately provided for in the will or under the intestacy rules. Taking early advice will put you in the best possible position.

Read More
separator


separator