18 Severn Side South
DY12 2DX
01299 405873

July 2021

The “Pitfalls” of Probate

If you are going to take on the role of personal representative (either executors or administrators*)  and apply for probate do it with your “eyes wide open”!

Yes it may be daunting when you enquire about legal fees for a professional who can either assist or take on the whole process for you but there are advantages of instructing an expert ….

Did you know that the office of an Executor/Administrator (personal representative) is one which lasts a lifetime?  This means that you can be held personally liable for any unpaid tax or problems arising due to the way in which the estate was administered for many years after the completion of the probate process.

There are certain steps which an Executor should take to ensure that the estate is administered efficiently and effectively.  By taking all necessary steps the Executor will limit their liability for anything which comes to light after the completion of the administration period.

An Executor has a so called “Executor’s year” to complete the administration.  Therefore, a beneficiary should generally wait for until the end of a year before action is taken if it is considered the estate is not being administered efficiently or effectively.

Inheritance tax has to be paid within 6 months of death.   It is possible in some circumstances for inheritance to be paid in instalments. It is sometimes necessary to set up a loan to pay the inheritance tax.

It is not always possible to gain access to all assets without a Grant of Probate.  It really depends on the asset and whether it was held jointly or in the deceased sole name.  In order to obtain a Grant of Probate it is necessary to complete complicated Inheritance Tax forms.

In circumstances where beneficiaries of an estate, whether testate or intestate**, have concerns as to whether the personal representatives are administering an estate properly, they need not wait patiently for their personal representatives to produce accounts or distribute the estate before taking appropriate action.  There is much they can do to ensure proper administration rather than wait for the worst to happen and then be faced with the decision as to whether to initiate proceedings to remedy a wrong.

A personal representative may be liable for devastavit, breach of trust or fiduciary duty.  Assets are given to personal representatives on trust and they may breach not only their duty to administer but also the express or implied trusts on which they hold the estate: they may also be in breach of their fiduciary duty if they do not fulfil their duty of loyalty to their beneficiaries.

Once a Grant of Probate is obtained it is necessary to carry out section 27 notices; creditors have two months from the Grant in which to come forward to give notice of their interest in the estate and claimants have six months from the date of the Grant of Probate to make a claim under the Inheritance (Provision for Family & Dependants) Act 1975.  However, courts have the power to grant permission to a Claimant to make a claim outside of the six month period.  If the personal representatives have distributed the estate prior to the expiry of this six month time period they can be held personally liable.  If notice of a claim is served within the six months then it is best practice to wait until 11 months after the Grant of Probate has been granted before distribution, as a claimant has four months from issuing a claim to serve it upon the estate.  Thus, the Claimant will have sufficient time to serve proceedings on the estate.  If the time limit is observed before the estate is distributed, and no court proceedings are issued against the estate then the personal representative will be free from personal liability.

If the estate is distributed after the necessary 6 or 11 months and a claim is allowed by the court out of time the assets can be “traced” and the assets claimed back from the beneficiaries but without liability of the personal representatives.

A professional advisor such as myself will be able to identify early on where there is potential for such claims to be made and advise on appropriate action to ensure the estate is protected as far as possible from such claims.

Unfortunately, if you are a personal representative and a claim is made against the estate under the Inheritance (Provision for Family & Dependants) Act 1975 then you will be a party to the proceedings.  Such claims are made by persons who consider that they should have been provided for by the Deceased or the provision made for them is insufficient.  The personal representatives may need to obtain legal advice. However, a personal representative should remain neutral in such proceedings.  Such claims can have a huge impact on the administration of the estate delaying completion for many years.

A claim for a devastavit, breach of trust or fiduciary duty is a claim against a personal representative personally and not against the estate.  If there has been a devastavit, breach of trust or fiduciary duty, a personal representative cannot escape liability by pleading (as he would if a third party claim is made) that the estate has been fully administered and that he has no assets left in his hands.  If he is found liable he will have to make good the loss to the estate out of his personal resources unless he is insured, in which case his indemnity insurers may have to provide funds to restore the estate.

Claims against a personal representative have to be made within twelve years of completion of the administration.

It is possible for Executors to renounce their appointment but this can only be done early on and before they have “intermeddled”.  If you do not wish to be an Executor then you should not make any enquiries into the estate of the deceased as you will be required to administer the estate and unable to renounce.

It is possible to have power reserved to you and enable other appointed Executors to take on the role.

It is also possible to instruct a professional such as myself to administer estates.  Please contact me should you wish to discuss the different services I offer.

Amanda Weston FCILEX MIPW
Mobile: 07931 411733

Free drop-in clinic at our new offices

Are you considering speaking to the family over Christmas about your Will?

With many family members living several miles from each other it is rare that everyone is under one roof. Christmas can provide an ideal opportunity to discuss your thoughts with your children or relatives as to how you intend to leave your estate.

There may be particular issues to discuss with the family for example where you may have provided financial assistance to one child but are unable to assist your other children in the same way. You may have made promises to your children that they will inherit your home, your farm or the business if they help you, work on the farm or in the family business? All of these situations can potentially cause disputes between family members when you pass away. There is always a solution to all of these issues with the right advice and the best time to seek that advice is now, before anything happens which may mean you can’t forward plan. None of us know what is around the corner and what the future holds. If possible, the best time to put your plans in place is when you are fit and well.

If you are finding it difficult to know how to keep everything fair or need assistance in dealing with a situation whereby you wish to exclude a relative/child from your Will then contact Mandy Weston at Westons Wills and Probate for assistance in putting your plans in place.

Often people will put off using a qualified lawyer to prepare a Will for fear of the expense, choosing to prepare a homemade Will instead. Homemade Wills are also a source of contention and although in the short term money can be saved the bill that is left to other family members in sorting out discrepancies can be enormous not only in money but also in the emotional turmoil.

You may also wish to talk to family members about appointing them as Attorneys to act on your behalf during your lifetime or you may have concerns about another family member or friend and fear that they may need some support in dealing with their day to day affairs. You may want to consider talking to them about giving you power of attorney so that you can assist with property and financial and/or health and welfare matters on their behalf. Often people believe a Lasting Power of Attorney is only required if they lose capacity but this is not the case. An Attorney can act on your behalf with your permission whilst you have capacity and can also act for you if you lose capacity. It may be that you need some help due to a physical injury, a stay in hospital or you may be going abroad for several months and need someone to deal with your property and affairs whilst you are unable to do so.

Many people are under the misconception that they do not require Lasting Powers of Attorney as their next of kin can act on their behalf. However, next of kin does not mean anything in law. With further data protection regulations being brought in early in 2018 organisations are having to be much more vigilant about sharing information and accepting instructions from third parties. By planning ahead and appointing who you would like to act on your behalf if you were not capable of making your own decisions is much better than leaving it until it is too late and someone having to apply to the Court of Protection on your behalf to be your Deputy. Applying to be a Deputy is much more expensive and very time consuming. Whether you are an Attorney or a Deputy, both roles carry responsibility and require a person (Attorney(s)) to act with integrity and honesty. However, if you wait until someone has lost capacity and are forced to apply to have a Deputy appointed, the Deputy has to report to the Office of Public Guardian annually and is required to go back to court to seek permission for many decisions as a Deputy’s power is very restricted. There are also annual supervision fees of several hundred pounds.

Putting in place Lasting Powers of Attorney can seem like an onerous tasks. At Westons Wills and Probate we can advise you on who to appoint, what instructions and preferences should be included in your Lasting Powers of Attorney and deal with the whole process on your behalf ensuring that when your relative or friend wishes you to deal with matters on their behalf it will be a smooth seamless transition.

Westons Wills and Probate offers a professional yet personal and friendly service. If you would like to discuss any of the services provided by Westons Wills and Probate please don’t hesitate to give Mandy Weston a call on 01299 405873 or 07931 411 733
(email: mandy@westonswillsandprobate.co.uk).

Emerging from Lockdown 3

Since 23rd March 2020 life has changed dramatically for lots of us. It is hard to imagine what some families have gone through over this last year and also the NHS staff who have nursed all those who have had to go into hospital.

It’s been a time when all of us have had to look to ourselves, discovering new ways to spend our time. Finding ways to spend many hours without social contact in person has been challenging at times for most of us. Isolation is sadly something which many people suffer at the best of times, but lockdown has made it so much worse and for many more people.

There is no better time to check that your wishes are in place in order and that your loved ones will not be left having to deal with unravelling a mess should you die.

If you cohabit with someone and you are not married or in a civil partnership the law does not provide for your cohabitee upon your death. It is very important that you make a Will. Your cohabitee does not even have the right to organise your funeral. This is a responsibility for the personal representative (Executor or Administrator). Neither does your cohabitee have a right to deal with your estate. This is all laid down by law and this may not be what you want. I believe it is much better to make a Will to ensure that the people you would like to arrange your funeral and administer your estate are the people you choose and not let the law dictate what will happen.

Furthermore, if you have children who are under the age of 18 years and you do not decide who is to be the Guardians of your children then it will be up to those left behind to apply to the court to be the Guardians of your children. This may not be what you want and can cause delay and uncertainty for your children. You can appoint Guardians of your children in your Will in the event that all those who have parental responsibility for your children have died.

It is also important to consider who would be the Executor of your Will and Trustee of any continuing trust holding money for your children. It is recommended that the Trustees are different people to those appointed as Guardians. However, if it is not possible to find another two people to look after any money you leave for your children then it is possible to have your Guardians as Trustees also.

Westons Wills and Probate offers a professional yet personal and friendly service. If you would like to discuss any of the services provided by Westons Wills and Probate please don’t hesitate to give Mandy Weston a call on 01299 405873 or 07931 411 733
(email: mandy@westonswillsandprobate.co.uk).