Tag Archives: disputing a will

Is there a time limit for claiming a share of an inheritance?

If you believe you are entitled to something from someone’s Will, you may be able to make a claim, but beware of the time limits.

If a relative dies and you have not inherited what you feel you have a right to, you may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the Act).

It may be that you believe you were left less than you are entitled to, that you have been left nothing or that because there is no Will you have not been made a beneficiary.

If you can show that you are entitled to ‘reasonable financial provision’ then you can ask the court to grant you a share of the estate.

How long do you have to make a claim?

The Act has a strict time limit for making a claim of six months from the date of the Grant of Probate or Letters of Administration.

In very exceptional circumstances this may be extended to allow a late claim, but as a rule you must stick to the six month deadline.

Who is entitled to claim?

A spouse or civil partner may make a claim under the Act as well as a former spouse or civil partner where they have not remarried, a person living in the same household as the deceased for at least two years prior to the date of death, a child of the deceased, anyone who was treated as a child of the family such as stepchildren and anyone who was being financially maintained by the deceased.

What will the court consider?

The court will look at the applicant’s financial resources and needs as well as their future needs. This could include whether they are employed, able to work, whether they have a dependent family or are a carer.

The physical and mental capacity of the applicant will be considered at along with the obligations the deceased may have had to them.

The financial resources and needs of the beneficiaries under the Will is also taken into account together with the size of the estate.

Other factors such as the applicant’s behaviour towards the deceased will also carry weight.

The court will not simply ignore the wishes of the deceased, so it is important to put together as persuasive a case as possible.

It is also essential not to miss the six-month deadline for making the claim.

If you would like to speak to our expert probate team, ring us on 01243 216900 or email us at info@legalmatters.co.uk.

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Cutting someone out of your Will

Disinheritance: how to cut someone out of your Will…

Disinheritance isn’t a decision taken lightly. If you intend not to leave your estate to your children or dependents, it’s essential to act now to draft a will that leaves no room for dispute.

How are estates usually divided up?

The usual division of a person’s estate is that assets would be shared between a spouse, children and other direct relations. The rise in blended families is creating a lot of grey areas in this area.

Consideration should be given to former spouses and step-children, who may be compelled, and legally permitted to challenge any exclusion.

What’s the legal standpoint?

The law is pretty clear that excluded dependants have a right to claim. The Inheritance (Provision for Family and Dependants) Act 1975 states that a spouse, former spouse, child or any other dependant can apply to the courts to intervene if they believe their loved one’s estate doesn’t make reasonable provision for them. Factors affecting court decisions include the current financial position of the person appealing and the impact on other beneficiaries.

How to ensure your disinheritance isn’t challenged?

Family relationships are complex. If you’ve decided disinheritance is right for you, there are ways to protect your legacy from a future challenge.

For blended families, consider what’s right and fair. Think about obligations to children from previous relationships, your former partner but also your current family set-up and any people who depend on you financially there.

Ensure your solicitor keeps attendance and discussion notes throughout your meetings. And, document your reasons for cutting your child out of your Will, evidencing that you have considered them but made the active choice to disinherit them. Your solicitor will keep these records, to be cited in the event of a claim on the estate.

A doctor’s assessment and signatory may be worth considering, if the person writing the Will lacks capacity to make decisions. For example, if there are mental health issues, the person is elderly or medicated, the Will could be challenged.

Many people choose to provide a token gesture to a family member they’re disinheriting, drafting legal agreements that prevent or deter them from making a claim. Others prefer to set up trusts.

However, the courts do have the power to call these funds back into your estate if they suspect nefarious reasons for doing so. Specialist legal advice is required in such circumstances.

To ensure your Will is respected, call one of our specialist team at legalmatters, on 01243 216900 or email us at info@legalmatters.co.uk.

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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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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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Contesting a Will

Disputing a Will. What can you do?

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. But what can children, spouses and partners do if they feel they have been overlooked unfairly in the last wishes of their nearest and dearest? And, how can we prevent such disagreements from arising in the first place?

Why do Wills get disputed?
There has been a rise in disputes between family members over inheritance. Changing family structures – which often include people co-habiting, second marriages and second families – are thought to be contributing to this rise. Also, an ageing population means that Wills are being written later in life, at a stage where capacity is more likely to have deteriorated – this is another ground on which a Will can be disputed.

In addition, rising property values mean that a growing number of estates are now thought to be worth contesting. Furthermore, the number of people leaving money to charities after they have gone has risen, and this corresponds with a rise in disputes over charitable gifts in Wills.

Dying without a Will
In many cases, disputes over inheritance occur because a person dies without a Will and so their final wishes are not clear.

Many individuals still believe that their estate will automatically go to their spouse when they die, but this is not always the case.

With disagreements over money or property devastating those left behind, and often very expensive to resolve, a properly prepared and considered Will should be a priority for us all.

However, it’s important to note that, even with a Will, written in sound mind, it can still be challenged. In fact, recent cases have shown that a Will can be overruled if it is thought to be unreasonable or purely spiteful. As such, careful drafting and consideration is essential.

Who can dispute a Will?

  • Husbands, wives and civil partners
  • Former spouses/civil partners who have not subsequently remarried or entered into a civil partnership
  • Children of the deceased (including adoptive children and adult children)
  • A cohabitee who lived with the deceased person for two or more years before they died
  • Someone who was financially dependent on the deceased
  • A beneficiary under the Will or an earlier Will
  • Someone who is owed money or was promised something by the deceased.

With research suggesting that just 40% of Britons make a Will, and arguments around mental capacity being put forward in an increasing number of cases, this issue is likely to become increasingly more contentious.

To make sure your Will is passed on in line with your wishes, or to dispute a Will, speak to legalmatters. Call us on 01243 216900 or email us at info@legalmatters.co.uk.

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