inheritance-dispute-lawyersInheritance Solicitors

When a person dies, if they have made a Will then Executors will have been appointed and they will take out a Grant of Probate. If the estate is under £5,000 then normally a Grant of Probate is not required unless the estate also comprises of a property and/or shares.

The Executors will then need to take out a Grant. If the Will leaves property to Beneficiaries then the Executors will transfer the property into the names of the Beneficiaries as per the inheritance law by way of an Assent.

Often the Beneficiaries will simply wish to sell the property in which case contracts can be issued subject to the Grant being obtained and there is no need for an Assent.

Many problems can arise, for example, there may be a dispute over the validity of a will, over the identity/tracing of beneficiaries, or over claims by a dependant/family member who has been excluded from a will. Such scenarios are just some examples of situations which can arise. They are usually referred to as “contentious probate”

If there are no problems then hopefully matters will be a straight forward process of administration. This is referred to as “Non contentious probate” and is the work required to process an application for a Grant. There are however strict rules on how to achieve this and the correct procedure must be followed as a Grant will be needed to sell and/ or transfer the deceased assets.

The sooner you act the better as there are time limits as well as the concern that the estate may be distributed without taking your claim into account. If you decide to bring a claim this has to happen within 6 months of the date of the Grant of Probate.

If you require assistance in obtaining a grant of probate and administering an estate or have any queries regarding the validity or interpretation of a will or on the provisions made in it (whether contentious or non-contentious) Judkins Solicitors can advise and guide you through. We will be happy to give you a quotation for our likely costs in assisting you and if appointed will provide you with a highly professional service or have any queries regarding the validity or interpretation of a will or on the provisions made in it or want to dispute a will then please contact us.

If a person dies without leaving a Will then this is known as an Intestate Estate. In these circumstances the Rules of Intestacy will apply and these rules set out the priority of those relatives that will inherit.

If for example the Husband died without making a Will leaving a surviving spouse and children then the surviving spouse would take a cash sum of up to £250,000 and a life interest in half of the remainder, the other half would pass equally to the deceased husband’s surviving children.

In these circumstances arrangements can be made within the family to vary the provisions of Intestacy if that is everyone’s wish. In a situation where the Husband died without making a Will but held the matrimonial home at a Joint Tenant then his share in the matrimonial home would automatically pass to the surviving spouse and the Rules of Intestacy would only apply to the remainder of his estate.

Whether a person dies who made a Will or not an Inland Revenue account will have to be delivered to HMRC to account for Inheritance Tax.

The current threshold is £335,000 which means if the value of the estate amounts to £335,000 or less the estate is exempt from having to pay any Inheritance Tax. If the value of the estate exceeds £335,000 then Inheritance Tax has to paid at 40% on the amount over the threshold. In most cases this has to be paid before a Grant can issue although it may be possible in some circumstances to pay by instalments and/or to agree an arrangement with HMRC so that the appropriate certificate can be given to enable a Grant.

Once the IHT has been paid on estates over the threshold HMRC will provide a certificate to the Probate Registry where the Oath for Executors (where a Will has been made) or the Oath for Administrators (when the deceased has died Intestate) has been lodged. Once the Probate Registry receives the certificate they will issue the Grant.

At that point the executors can the obtain release of funds from Banks, Building Societies, Investment Brokers and they can also complete on the sale of any of the deceased’s property. In some cases when a person dies (particularly people who have perhaps been subject to a Mental Incapacity and have died in nursing home) it is the position that no Will can be found and there are no obvious relatives who visited. In these situations if you are involved in any way it is sensible to consider instructing a tracing agency and Judkins have worked with a number of agencies who have been successful in tracing heirs all around the world, particularly in Ireland and the USA.

Obviously when someone dies it can be a very distressing time.

We at Judkins are sensitive to the issues involved and can work with you in obtaining closure. There are a lot of practical issues to consider for example preparing the return to HMRC and submission of the Oath to the Probate Registry.

We can advise and assist on property transfer, sales, valuation of shares, sales of shares and obtaining release of funds from Stockbrokers, Building Societies, and Banks.

We open a designated probate account into which all funds are paid and then prepare estate accounts to include all assets and liabilities and then make the distribution to the beneficiaries.

Some people find it difficult to get round to drafting a Will but it can be less painless than one might think. In the unlikely event that something might happen to us sooner than we think it does give piece of mind to everyone involved to know that our affairs are taken care of.

A Will doesn’t have to be complicated and can be drafted in way that it deals with our assets as a whole and so that it doesn’t continually have to be updated.

If you have children it is especially important to have provision in place including Guardians in the event that your partner is also killed in the same accident – all very unlikely but possible nevertheless. You might also wish to consider appointing Judkins as co-executors so that we may help the executor in the many tasks involved.

We would also attend you at your home and/or nursing home of your relative if required.

A Power of Attorney is an important process whereby one person by way of a legal document gives power to another to administer their financial affairs and property in the event that they later become incapacitated.

This can also include personal welfare matters/decisions as well as give directions and/or restrictions to your solicitors on how they should manage your affairs in the event you do become incapacitated. You can have more than one lawyers and can direct that they can act either on their own or only in unison.

Once completed,  the Lasting Power of Attorney is registered with the Office of the Public Guardian who keep a record of registrations. If it later happens you become mentally incapacitated, the Power of Attorney immediately becomes live and your appointed Attorneys can act in your best interests by using the Power of Attorney to manage your affairs. A Power of Attorney is becoming increasingly more common now days as it is an important safeguard that can be put in place and is often most sensible to consider when you are reviewing your Will.

It is worth noting that if a Power of Attorney has not been entered into and it later becomes the position that you lose your mental capacity it is not then possible to enter into a Power of Attorney. Instead immediate friends/family of the person who has lost capacity have to apply to the Court of Protection for a Deputy to be appointed.

This is a much more expensive and time consuming route to have to take.

If a person dies without making a Will they die Intestate. In these circumstances the Rules of Intestacy apply.

These rules set out a priority for those who will benefit from the estate of the deceased. For example, if the deceased was married and died leaving a surviving spouse then his spouse would take all. However, if he died leaving a surviving spouse and children then the surviving spouse takes a cash sum of up to £250,000 and a life interest in 50% of the remainder of the estate.

The other 50% of the estate passes to the surviving children equally. If the child died without siblings then the estate would pass to the first surviving parent. However, the more distant the relatives the more complicated the rules become.

There is also the operation of the Inheritance (Miscellaneous Provisions) Act 1975 as amended whereby certain persons can make a claim on the deceased’s estate (whether he made a Will or not) provided that certain criteria are met. In the case of Intestacy if this criteria is met it may enable more distant relatives to make a claim which the Intestacy Rules would otherwise prevent. If one dies without making a Will there are also provisions as to whom can apply for Letters of Administration.

It may also advisable to consider instructing a genealogical tracing company to prepare a full family tree to ensure all beneficiaries are identified. This will also enable missing beneficiary insurance to be obtained.

In all circumstances where the deceased died intestate proper enquiries should be made to ascertain whether in fact a Will is in existence.

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