Grant of Probate, Challenges to Wills for Family Members and Business Partners
Wife and Family Probate Challenges
With specialist in-depth industry knowledge of the Assurance, Insurance, Pensions industry along with Accountancy knowledge and Inheritance Tax (IHT) specialism. Green Cross Solutions are amply placed to assist with Probate Challenges from family members and business partners, who have been isolated from the Probate and are being financially removed from a ‘Will’ or ‘Non Will’ situation.
Most commonly overseas wives are disinherited by husbands who leave their estate ti their children from their first marriages.
This is relevant to Domicile Status and then can be identified as a Legal passage to claim against the Will and Apply for a ‘Settlement’ under the a Tomlin Order.
After someone dies, certain individuals have a legal right to make a claim to the estate if they feel that they haven’t been adequately provided for in the deceased’s will. These individuals include the deceased’s spouse and their children, amongst others.
The Inheritance (Provision for Family and Dependants Act 1975)
In England and Wales, people are free to make a ‘Will’ and name whoever they wish as the beneficiaries of their estate. There is no requirement for certain family members or dependents to be provided for in a person’s will. This is called ‘testamentary freedom’ and this is something that doesn’t apply in all countries.
To balance out this freedom and ensure that dependents are still adequately provided for, certain individuals are entitled to make a claim on an estate during probate. This is set out under the inheritance (Provision for Family and Dependents) Act 1975.
This law states that the following relatives of the deceased can make a claim for ‘reasonable financial provision’:
- wife, husband or civil partner
- former wife, husband or civil partner (providing they haven’t remarried)
- child (regardless of their age)
- someone who they treated as a child (i.e. stepchild or former stepchild)
- someone who was living with the deceased (and their spouse) for the two years leading up to the death
- any person (not mentioned above) who immediately before the death was financially dependent on the deceased
We can complete a search the for a will directly through the government www.gov.uk website
to obtain a ‘Grant of Probate’ to check the position of the deceased person.
Who needs a Grant of Probate?
Is it compulsory to obtain a Grant of Probate? Whilst the Executor named in the deceased’s Will is responsible for obtaining probate, it is not always needed. A Grant of Probate may be required if the deceased owned assets or property in their sole name, as it may be needed to release funds or sell/transfer a property. But what happens if you don’t need probate? If assets were held jointly, they will automatically pass by survivorship to the spouse or civil partner. Citizens Advice suggests that probate may also not be required if:
- The estate is solely made up of cash – this includes banknotes and coins as well as other personal possessions, such as jewellery, furniture, or cars.
- The estate includes property that is owned as beneficial joint tenants – this is because the property automatically passes to the surviving owner.
- The estate equates to a small amount of money (typically less than £5,000).
- The estate is insolvent (meaning that there isn’t enough cash to pay any taxes, expenses, and debts accumulated by the deceased).
- The estate includes certain pension benefits and life insurance policies.
Is probate required when there is no Will?
Whether there’s a Will or not does not determine whether probate is required. The requirement for a Grant of Probate is determined by the financial situation of the deceased.
Find a probate record, also known as a ‘grant of representation’, for someone who died after 1857.
Probate gives someone the legal right to deal with a deceased person’s property, money and possessions (their ‘estate’).
A new probate record will be online approximately 14 days after probate has been issued.
There’s a different process in Scotland and Northern Ireland.
You can use this service to:
- search for a probate record in England and Wales
- check if probate has been issued
- check the type of probate issued
- order a copy of a probate record (including a will, if there is one)
When someone dies without a’ Will’
, known as dying intestate the process of applying for probate is referred to differently. The person responsible for dealing with the legal and tax affairs of the deceased is known as an Administrator, and they will need to apply for Letters of Administration. The role and responsibilities of an Administrator mirror that of an Executor, and a Letters of Administration has the same purpose as a Grant of Probate.
The collective term used for both Executors and Administrators of an estate is Personal Representatives. Additionally, the umbrella term for Grant of Probate and Letters of Administration is Grant of Representation,
We work our affiliated and renowned Solicitor practice who bring specialist industry knowledge Berry & Lamberts Solicitors www.berryandlamberts.co.uk
If you wish to make an enquiry please email Probate@GreenCrossSolutions.com
Business Partnership Probate Challenges
It isn’t just an individual’s money and property that is classed as their Estate when he or she dies. If they owned a business then this too becomes part of a potential inheritance. By this we mean the assets.
Of course, the addition of a business makes the probate situation much more complex than if it was just a straightforward property and money probate affair. Because of this it’s always a good idea to bring in a Probate Solicitor who deals in business assets and understands the legalities of such an inclusion.
Probate and the inclusion of business assets
It may be that the business is fully functioning – or at least continuing – despite the death of its owner (who may have died suddenly). In this instance it’s important to appoint someone to be in charge of the immediate ongoing running of the company. They should be able to deal with any employee and customer concerns, as well as daily ongoing operation.
How is the business structured?
The assets will then become part of the deceased’s estate during the ongoing probate concern. The assets won’t be dealt with in the same way personal assets are.
Sole trading business
Firstly, the Executor has to work out the structure of the company. For instance, if the deceased was a sole trader then it’s straightforward enough – especially is he or she worked alone and managed the business as an individual, such as a self-employed hairdresser, copywriter, plumber etc. In this case the business assets are the same as personal assets ie they are classed as belonging to the Estate. This means that any profits – as well as losses – become part of the Estate and are dealt with according to what is stipulated in the Will.
Limited company business
As the name suggests, a limited company limits the liability for the owner. This means that any debts accrued by the business has nothing to do with the individual’s personal financial situation. In other words, if the business goes under then the business owner/s won’t lose their house or car to pay off creditors of the company.
Limited companies aren’t just restricted to small companies. They can also be large public companies that have shares in the stock exchange.
A limited company can be set up in one of two ways; either as a private limited company or as a public limited company. A private limited company is likely to be a small, independent business while a public limited company might be a large, well-known company that trades on the stock-exchange. In this case it is likely to be the deceased’s shares in the company that will be included in the Estate (rather than any fixed assets). Or, it may be that the shares are sold and added to the financial inheritance from the Estate.
In the event of the deceased being in a partnership with at least one other person, then each partner is responsible for debts and profits amassed. That also means they pay their own tax and national insurance depending on the profit the business makes. The type of trade that has partnerships is often a firm of architects, accountants etc.
The Deed of Partnership outlines financial details such as the amount of contribution each partner has made. It also states who is liable for certain aspects of the business and how profits are to be shared amongst the partners. Most Deeds of Partnership will also have a clause stating what is to happen to the business and profits etc in the event of one partner dying or pulling out of the partnership. The best way to deal with assets in a partnership company is to get a solicitor experienced in such matters to act on behalf of the deceased’s family.
We work with our affiliated and renowned Solicitor practice who bring specialist industry knowledge Berry & Lamberts Solicitors www.berryandlamberts.co.uk
If you wish to make an enquiry please email Probate@GreenCrossSolutions.com