Probate Explained: The Legal Steps to Distributing an Estate

Probate Explained: The Legal Steps to Distributing an Estate

Probate Explained: The Legal Steps to Distributing an Estate

Probate isn’t something most of us will ever have to deal with until a loved one passes away.

The basic definition is that probate refers to:

    • The legal steps necessary to prove the validity of a will, if there is one.
    • Establishing who has the authority to deal with the estate.
    • Administering the estate to distribute assets to the appropriate parties.

Managing the probate process can be emotionally charged and put added stress on families coping with grief and bereavement.

Yet understanding how probate works and the legal mechanisms at play remains crucial to ensure that your loved one’s wishes are respected, debts are repaid, Inheritance Tax bills are settled, and the deceased’s wealth reaches their designated parties.

This guide from The Law Firm Group seeks to clarify some of the commonly asked questions about probate and navigating this most complex of processes.

How to Apply for Probate

No matter your relationship or close connection to a person that has died, you don’t automatically have the legal right to decide what happens to their assets.

The first step is to apply for a Grant of Probate, depending on whether you are eligible.

If there is a will, then the nominated executors can apply, and if not, the applicant should be the closest relative.

One of the contributing factors in that decision is whether there is an Inheritance Tax liability to pay, which the executor will establish.

Probate isn’t required if:

    • The individual’s assets were jointly owned – because, in this scenario, they pass to the remaining joint owner.
    • The only asset to consider is savings.

It is essential to work out the estate’s value and identify whether Inheritance Tax applies before looking to obtain probate. You can then apply online or via a postal application.

There are multiple complications here, and we’d strongly advise seeking support from an accomplished family law specialist with experience in managing probate.

For example, determining the tax liability in itself can be complex, and there is a 20 working day breaker between sending the tax forms to HMRC and being allowed to apply.

You can potentially apply for probate without a solicitor, but we’d never suggest this as a viable strategy.

Legal advice is the least you’ll need, given the potential for things to go wrong or for mistakes to be made that might mitigate your control over the estate of a recently deceased family member.

Every application must be supported with comprehensive documentation, and the process of compiling a legally valid personal history to prove your connection with the deceased can be too much pressure for most.

Applying for Probate Without a Will

Constructing a will is, of course, an action we’d suggest as valuable for anybody of any age.

Still, when a family member or partner passes away without one, it throws an extra proverbial spanner into the works.

You can apply for a Letter of Administration if any of the below applies:

  • The deceased did not have a will.
  • A will left is considered invalid.
  • There is a will but without a corresponding executor.

The complication is that close relatives don’t have free reign to distribute assets as they wish and instead need to refer to the intestacy rules.

Essentially, that means the estate will be shared according to pre-set legal statutes, regardless of the instructions left in a will that isn’t valid.

This area is multi-faceted and depends on the deceased’s marital status, whether they have children or grandchildren, and many other elements.

You have the right to make a claim if you were in a long-term cohabitation situation for over two years but need to prove financial dependency, which is often a long and delicate process without a guarantee of success.

What to Do After a Grant of Probate

If you do achieve a Grant of Probate, usually with guidance from a skilled legal representative, the next stage is to consider the wishes of the deceased, which in itself can be challenging.

The steps include:

    • Collecting assets from banks, estate agents, savings accounts, pension schemes and building societies by distributing a copy of the Grant of Probate.
    • Repaying outstanding debts, including mortgage payments, online accounts, property utilities and tax accounts.
    • Recording how you will share the estate among beneficiaries (or estate accounts), which must, in turn, be formally signed by the executor.
    • Actioning those distributions following the instructions in the will. If you’re bound by intestacy rules, this law will dictate how you share the assets.

As we’ve explained, there is a great deal of grief involved with each of these actions, so we suggest having a solicitor manage correspondence and recoup assets on your behalf.

Deviations from probate law can cause severe issues, so it is vital you work through the process carefully and with ongoing advice.

What Happens if I Need to Contest a Will?

Contesting a will requires you to remain calm, controlled and with a clear justification for the appeal. Hiring a solicitor is usually the optimal strategy to represent your interests.

Estate disputes can be lengthy, costly, emotionally charged, and it is significantly more difficult to progress a challenge after funds or assets have been distributed.

Timescales vary, but some grounds for a contested will dictate that you must act within six months. Unlimited challenges are acceptable in situations such as fraud.

It may be difficult to decide whether to contest a will, which can create rifts between family and friends, so mediation or negotiation may be preferable courses of action to reach an equitable agreement.

The probate lawyers at The Law Firm Group are always on hand to deliver further advice and tailored recommendations based on your specific situation.

If you’re concerned about obtaining a Grant of Probate, aren’t sure how to manage a will, or need diligent oversight to ensure you submit a legal challenge correctly, our expert team can help.

Please get in touch for an informal discussion or to book a consultation to start work on building a bespoke plan to manage the probate process from start to finish effectively

Call or email us to talk about it. 0300 303 3805

The Typical Divorce Mistakes to Avoid: From the Family Law Experts

The Typical Divorce Mistakes to Avoid: From the Family Law Experts

The Typical Divorce Mistakes to Avoid: From the Family Law Experts

Divorce and separation can be overwhelmingly emotional and stressful.

There is no doubt that upheaval, moving home and dealing with finances and child custody are hugely impactful.

Even if you’ve experienced divorce before, it’s easy to fall into common pitfalls, making hasty decisions that may not be in your long-term interests.

Let’s work through some of those typical divorce mistakes and how an experienced family solicitor from The Law Firm Group can help steer you through to a positive outcome, ready to move forward with confidence.

1. Assuming Your Decree Absolute Removes all Financial Ties

While there are several options to self-manage divorce proceedings, this fast-track solution often skates over important issues, such as dealing with the separation of joint finances.

Once your divorce is finalised, there is a misconception that you now have no financial connection to your ex-spouse – but this isn’t correct!

Married couples may have multiple assets or obligations, such as:

    • Education costs and expenditure related to children.
    • Mortgages and rental agreements.
    • Joint bank accounts, loans or savings.
    • Investment assets or rental property.

A financial order is strongly advisable and means you can make a clean break without the threat of claims being made against you in the future.

2. Failing to Plan for Future Financial Security

Often, separated couples want to reach a quick agreement, so they might agree to a nominal proportion of the marital assets without an in-depth assessment of their circumstances and future requirements.

Practically, committing to receiving, say 50% or 60% of assets, may not provide for your needs and might even mean losing your home if you cannot comfortably cover mortgage costs alone.

A careful analysis of the true value of your marital assets, along with financial planning, is necessary and will ensure you make decisions about how best to divide assets without hitting a stumbling block in a few months.

3. Entering Into a New Marriage Before Resolving Disputes

Finding a new partner can be a wonderful experience for somebody who has gone through the rigours of divorce – but if you decide to remarry before you have tied up financial disagreements, it could be costly.

It’s important to understand that a new relationship, or even booking a wedding date before your Decree Absolute has been issued, could complicate matters considerably.

For example:

    • If you remarry before you have a financial order in place, you may sacrifice the right to apply for such an order.
    • Pension claims are still permitted after remarrying, but you cannot depend on the Matrimonial Causes Act 1973 to protect your interests.
    • Instead, claimants must process any financial claims through an application under the Trusts of Land and Appointment of Trustees Act 1996.

In essence, a financial order post-remarriage affords the courts less discretion to make fair, equal judgements and carries much stricter legal terms.

4. Making Child Maintenance Agreements Based on Capital Assets

Many divorce proceedings involve a discussion about contributing to the primary care for shared children.

That could be through a lump-sum payment, ongoing remittances, or a higher proportion of marital assets.

However, our advice is never to offset ownership of assets, such as a home, against any agreements made about child support payments.

It is seldom, if ever, wise to offer a larger asset share instead of financial child support.

Even if you agree to this, it does not mean that you have satisfied your obligations, as determined by the child maintenance agency.

5. Discussing Divorce Particulars With Children or Your Ex-Partner

Particularly where a divorcing couple shares children, an amicable co-parenting relationship is ideal.

A common mistake is to discuss the divorce with family members, often to relieve the burden of stress, but this can cause severe problems.

Children are not emotionally mature enough to absorb the complexity of adult issues and shouldn’t be involved in the specifics of a divorce agreement, especially if this is a contested matter.

If one parent speaks negatively about the other, shares information about poor conduct or attempts to influence proceedings by divulging details, this could backfire.

6. Accepting Unresponsive or Difficult Behaviour

Unfortunately, some individuals will make a divorce as challenging as possible, even where the other party does not believe this is justified.

There is little anybody can do to prevent this, whether the courts, solicitors or a judge – and, in some cases, even a legally valid court order will not be sufficient to correct non-compliance or a refusal to respond.

Our advice in these difficult circumstances is to work with a skilled solicitor to make sound suggestions about the best way to proceed.

Solutions may include enforcing a court order without direct personal involvement or consulting a divorce coach to recommend steps to achieve a more acceptable result.

7. Relying on Casual Divorce Advice

Millions of people have been through a divorce, but it is inadvisable to take legal advice from anybody outside of an accredited solicitor or lawyer.

Family and friends may have your best interests at heart.

Still, it is crucial to recognise that every divorce is unique, agreements made elsewhere may not be suitable for you, and the applicable laws relevant to any past petitions may have changed.

Our family law solicitors don’t offer one-size-fits-all solutions and take the time to understand your circumstances before making recommendations about the best way to move forward with your divorce.

8. Unloading Anger or Frustrations Publically

Social media is a common outlet for the anxiety of divorce but is a public medium that is usually accessible to a far wider number of people than those in your immediate family and social circle.

It is not unheard of for opposing legal teams to present information in court that has been published online.

You should not post anything or share information via email or text message that you wouldn’t be comfortable presenting to a judge in divorce court.

9. Applying for a Court Action Without Exploring Other Methods

Court action can feel vindicating for a party who believes they have been wronged but should be the last resort if there is no other opportunity to reach a reasonable solution.

The Law Firm Group can advise on a range of alternative dispute resolution techniques, such as:

    • Negotiation between solicitors.
    • Mediation, with an impartial mediator to assist.
    • Arbitration, a more flexible solution than taking a case to court.

While court action may be necessary, it can be costly, draining, and a high-risk strategy, with no control over the binding decisions made by a family law judge.

Therefore, if you haven’t assessed the viability of an out of court settlement, it is strongly advisable since you retain better control over the results and will likely save considerable expense and stress.

10. Attempting to Self-Manage Your Divorce

We recognise that individuals may believe it will be faster and cheaper to manage a divorce by themselves, but the outcomes are rarely successful.

Divorce, even if peaceful, can be complex, and the legalities surrounding it are technical.

At the very least, we would advise you to take legal advice to ensure you set clear expectations, understand the available options, and avoid committing to an agreement or signed resolution before you appreciate the various potential outcomes.

For more assistance with managing divorce and avoiding the common mistakes explored here, please contact The Law Firm Group for friendly, professional support.

Call or email us to talk about it. 0300 303 3805

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