Monthly Archives: January 2019

How long does probate take

How long does probate take and what can cause delay…

Winding up the estate of a deceased person can take many months, particularly if it is less than straightforward.

Following someone’s death, it takes an average six to nine months to finalise their affairs and distribute funds to the beneficiaries. The process can be complicated and frequently takes longer than this if difficulties arise.

A personal representative, either an executor or administrator (if there is no Will), has the job of listing in all the deceased’s assets and valuing them. Once this has been done, they need to work out how much tax is owed.

This needs to be paid to HMRC, who will issue a receipt, allowing the executor to apply to the Probate Registry for Grant of Probate.

The Registry will go through the paperwork and issue the Grant allowing the executor to deal with the estate’s assets. This involves selling or transferring everything that the deceased owned.

Possible delays

HMRC can take a long time to agree the information in respect of tax liability. The personal representative will then need to arrange for payment. If this is not possible, they may be able to request that HMRC provide a form allowing them to apply for a Grant on Credit.

The relevant receipt then needs to be forwarded to the Probate Registry along with the application and supporting paperwork, including the Will itself.

If the Probate Registry has any doubts about the validity of the Will, for example if it does not appear to have been witnessed properly, it will delay granting probate until it is satisfied.

This may involve providing documentation from the witnesses and whoever drew up the Will.

Once the Grant has been issued, the executor needs to gather in the assets by writing to banks, building societies, insurance companies etc, sending a certified copy of the Grant of Probate and asking for accounts and policies to be closed and a cheque for monies due to be sent to them.

One of the most time-consuming parts of winding up most estates is the house sale. The property will need to be cleared before the completion date, and a sale alone will usually take two or three months and frequently much longer.

The personal representative is responsible for locating all the beneficiaries, which can take time if the Will was made many years previously and people have dispersed.

If a Will contains any ambiguity or family members feel that they were due money which in fact has not been left to them, disputes may arise which will delay distribution of the estate funds, in serious cases for years.

If you need help to administer an estate professionally and without undue delay, call one of our experts at legalmatters. Call us on 01243 216900 or email us at info@legalmatters.co.uk.

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Beneficiaries to a Will

When beneficiaries to a Will can’t be identified…

A surprising number of difficulties and disputes arise when the beneficiaries to a Will can’t be identified easily.

Although it may be clear when a Will is drawn up who the writer intends to leave their assets to, as time goes by beneficiaries may change their names, often more than once, and/or move away.

Often, a long period of time elapses between the writing of a Will and the administration of the estate. If a Will doesn’t make absolutely clear who is to inherit, it can cause numerous problems for the executor or administrator when they have to find and identify everyone named.

Why you need to do more than just name your beneficiaries

If your Will simply names a beneficiary without any further identifying information, then over the years it can be hard to trace the person intended.

Women in particular may change their names several times throughout their lifetime on marriage, divorce and remarriage.

To help the person who will eventually administer the estate, it is a good idea to include other identifying information, such as address, date of birth and the beneficiary’s relationship to you.

A note containing new addresses can also be put with the Will to make contacting people easier. Beneficiaries will also need to provide the executor with relevant evidence of any change of name, such as a marriage certificate or deed poll.

Why attention to detail in a Will is essential

It is also important to make sure that everyone’s name is correctly spelled in a Will. While an incorrect spelling does not invalidate a gift, it can cause difficulties for the executor and even lead to disputes.

Again, by putting in other identifying information, it will be easier for the executor to be clear exactly what your intentions were.

A professional lawyer will be able to write a Will for you that is clear and unambiguous, with all of your beneficiaries accurately identified. This can avoid expensive and damaging disputes and make sure your intentions are carried out.

To speak to one of our experts about having your Will drafted, ring us on 01243 216900 or email us at info@legalmatters.co.uk.

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Using Trusts in Wills

The different uses of trusts within Wills…

Using your Will to set up a trust allows you to set out exactly who you want to benefit from your assets and protect your money from being spent where you wouldn’t want.

When leaving money or property in a Will, there is sometimes a risk that it may not end up where you meant it to be.

For example, a jointly owned property left to your spouse may be at risk of being sold to pay for care home fees, or money may be left to someone who at present is not in a position to use it wisely.

Setting up a Will trust allows you to dictate in detail who gets what, and when.

Protecting your share of a house

You may well want your spouse or partner to be able to continue to live in your shared home for as long as they want, but if they simply inherit it, then should they need to move to a care home, the whole value of the house will count as their own. This would then be taken into account when assessing their entitlement to help with fees.

Your solicitor will be able to draw up a Will allowing you to leave your share of your home to your children or other beneficiaries, but with your spouse or partner still able to live there as long as they wish. This means that your share of the house will ultimately pass to your children or other beneficiaries.

Passing your home to your children

Similarly, if you’ve remarried during your life, you may want your new spouse to have the benefit of your shared home for the rest of their life, but after that you want it to pass to your children.

A trust in your Will can make this possible, preventing the possibility that your share in your home be left by your spouse to someone other than your children.

Leaving a gift in trust

Setting up a trust allows you to leave money to someone under 18, to a person who is not able to manage their own affairs or to a recipient of state benefits, which might be withdrawn if they were to inherit a large cash sum.

Trustees will be in charge of the money, giving it to the beneficiary in accordance with your wishes, for example for living expenses or continuing education.

Leaving a life interest in assets

You can set up a trust via your Will so that a person receives income from the assets in your estate, but when they die, the capital is passed to the beneficiary of your choice. This allows someone’s funds to live on but prevents them from leaving the main capital under the terms of their Will.

Ask one of our specialist team at legalmatters to help you draw up the Will that allows you to leave your assets exactly as you wish. Call us to discuss your Will on 01243 216900 or email us at info@legalmatters.co.uk.

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Protecting your children

Will my stepchildren inherit my assets when I remarry?

A second marriage can be very complicated when it comes to making sure your family inherit exactly what you want them to have.

The first thing to know is that any previous Will you have made becomes invalid when you marry, unless it was specifically made in contemplation of the marriage.

If you and/or your new spouse have children, you both need to sit down and work out what assets you have and who you would like them to be ultimately passed on to.

If you don’t make a Will

When someone dies without making a Will, their estate passes under the Intestacy Rules, which give all personal possessions plus the first £250,000 to the spouse. Any sum over and above £250,000 will be shared, with 50% going to the spouse and 50% shared between any children.

Stepchildren are not included at all. This can mean that if your spouse inherits your estate and then dies without writing a Will, your children would not be entitled to anything.

If you do make a Will

If you make a Will leaving everything to your spouse, with the understanding that they will then leave your children your assets when they die, you have no guarantee that this will actually happen.

As time passes, they may change their mind and decide to leave their estate elsewhere, or they may fall into debt or need funds for care home costs.

The way to avoid this is to have a Will drawn up so that your spouse has a lifetime interest in your property and assets, but on their death the capital passes to your children.

What to do about your Will when you remarry

Because any previous Will becomes void on marriage, you should sit down with your new spouse and decide who you want to inherit. Its particularly important when family situations are complicated, for example with different sets of children and stepchildren, to get expert help in drawing up a Will that includes the necessary trusts.

It is also important that Wills are unambiguous to avoid disputes after someone dies. If possible, you should talk things through with any children and stepchildren so that they understand what your wishes are and what will happen to your estate after you die.

A specialist Trusts and Probate lawyer from legalmatters will be able to put your requirements into a valid Will and this should avoid any arguments arising at a later date.

If writing – or updating – your Will is one of your 2019 New Year’s Resolutions, don’t put it off. Speak to one of our expert lawyers at legalmatters on 01243 216900 or email us at info@legalmatters.co.uk.

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Living with someone – they could be entitled to more than you think…

A recent case involving a cohabiting couple has highlighted the need for a robust Will after a man died and the judge awarded his surviving partner more than he intended.

There has been a rise in disputes between family members over inheritance. And a recent case has shown that a cohabiting partner might have a greater claim to your estate than you realise.

What happened in this case?

While the ‘common law’ husband or wife doesn’t actually exist in law, living with someone could entitle them to a substantial proportion of their deceased partner’s estate. Even if this goes against the terms of their partner’s Will.

Mr Hodge and Ms Thompson lived together for over 40 years. However, just before he died, Mr Hodge created a Will leaving nothing to his partner. In a letter he explained that he did this because he believed Ms Thompson would need to move into residential care after his death, and that she had her own finances to cover this cost.

However, Ms Thompson was unhappy with this and contested the Will. Her claim was successful as the judge found that she did not need to move into residential care and could live independently, but did not have the financial means to do so. As such, Ms Thompson was awarded a home worth £225,000, as well as a further £28,800 to pay for adaptions to the cottage, and an additional lump sum of £116,000 to help supplement her limited income.

This isn’t a one-off

In this case, the named beneficiaries will still inherit a sizeable amount as the estate was worth £1.5 million. Furthermore, the fact that Mr Hodge’s reasons for not taking care of his longstanding partner were unfounded contributed to the judge’s decision. But this is not the first time a Will has been overturned in favour of a cohabitee.

Indeed, it is possible for a ‘common law’ partner to bring a claim under the Inheritance Act after just two years of cohabitation if they rely on financial provision from the estate to carry on living the lifestyle they have become used to (however luxurious that lifestyle might be).

So, money and property can be given to someone other than the deceased’s intended beneficiaries.

The death of a loved one is a difficult time, and, where there are disputes about a Will, the stress and upset can make it even harder. As such, taking professional advice is crucial if you want to protect your Will against any potential challenge. With disagreements over money or property devastating for those left behind, and often very expensive to resolve, a properly prepared and considered Will should be a priority.

To make sure your Estate is passed on in line with your wishes, or to dispute a Will, speak to one of our expert team by calling legalmatters on 01243 216900 or email us at info@legalmatters.co.uk.

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