Tony Crocker

Tony Crocker is Director of IWC Estate Planning & Management Ltd. With over 15 years’ experience, he is knowledgeable and proficient in all matters regarding Probate, Will writing, Estate Planning and Inheritance tax avoidance. In addition, he has a wealth of experience in dealing with estate settlements and issues with the capital taxes office in the event of bereavement. As a member of the Society of Will Writers & Estate Planning Practitioners, he is widely respected within the field, having helped many people at difficult points in their lives through complex probate and tax issues. Tony Crocker

Contentious probate – How long does a contentious probate case take?

 


 
Contentious probate can take months or even years to settle in complex cases.  However, the number of probate cases being contested continues to rise.
 
 
The media has highlighted the estate of the late Peter Ustinov, whose family is still locked in battle over his estate, nine years after he died.
 
 
Although the famous actor left a multi million pound estate and had even prepared a Will well in advance of his death, the mounting legal fees may mean that much of his estate will have been wasted in this way.
 
 
With the traditional family structure having been altered beyond recognition, probate is now a much more complicated process than it used to be, with step parents, step children and multiple parentage posing more challenges.
 
 
If you wish to challenge a Will therefore, it is vital that you approach an experienced contentious probate professional, who will guide you and keep you informed throughout the entire process.

Being left out of a Will can come as a shock

 


 
It’s never pleasant to find out that you’ve been either inadvertently or deliberately left out of a Will.
 
Whether you’ve been relying on the much-needed money to boost your family finances or whether you’re financially secure but just shocked at the deceased’s decision, the discovery can leave behind a great deal of disappointment, frustration and confusion.
 
Most recently, it was revealed that veteran war correspondent Marie Colvin, who was killed on assignment in Syria for the Sunday Times last year, had not only left her ex-husband out of her Will, but had specifically inserted a clause to ensure that he would not inherit her £1.1 million estate.
 
If the two had been acrimoniously divorced, it might have been understandable.  However, there was nothing in the couple’s relationship to suggest such resentment against Ms Colvin’s husband.
 
The couple had in fact divorced almost 20 years ago and Mr Bishop states that having remarried, he did not expect to inherit the estate, anyway.  Nevertheless, the pair remained on good terms and they were even described as being great friends, with Mr Bishop contributing towards saving his ex-wife’s life, when she fell into difficulties in Russia, in 2000.
 
The painful clause in the Will stated that:  “I wish to make it known that Patrick Bishop, my former spouse, is deliberately not named in my last will and testament.  I do not wish him to inherit from it, and I make this clause expressly known, should he attempt to contest it”.
 
One potential explanation that has been put forward is that Ms Colvin may have been upset with Mr Bishop at the time of writing the Will, and have subsequently forgotten about what she’d instructed.
 
The truth of course, will now never be known.

Applying for probate in Scotland

 


 
After a person dies, as an executor you will be expected to obtain a Grant of Confirmation, which will be required by banks, insurance companies and creditors in order to freeze bank accounts and any balance on debts.
 
It is your job as executor to ensure that all payments are made, debts settled and taxes paid before beginning to distribute any of the assets.
 
Should the deceased only have left a small estate – usually under £30,000 including property and valuables, a Grant of Confirmation may not be required.
 
Inheritance Tax laws also apply in Scotland, where the Sheriff Court will require a valuation of all assets, in order to calculate how much Inheritance Tax should be paid.
 
Only after all tax has been paid and outstanding debts settled, can the remainder of the estate begin to be distributed according to the contents of the will.
 
If you’re unsure of how the Scottish probate process works and you’d like more information on applying for probate in Scotland, contact a professional probate practitioner with experience in this area

Dealing with Scottish Probate


 After a person dies, as an executor you will be expected to obtain a Grant of Confirmation, which will be required by banks, insurance companies and creditors in order to freeze bank accounts and any balance on debts.  It is your job as executor to ensure that all payments are made, debts settled and taxes paid before beginning to distribute any of the assets.

Should the deceased only have left a small estate – usually under £30,000 including property and valuables, a Grant of Confirmation may not be required.

Inheritance Tax laws also apply in Scotland, where the Sheriff Court will require a valuation of all assets, in order to calculate how much Inheritance Tax should be paid.

Only after all tax has been paid and outstanding debts settled, can the remainder of the estate begin to be distributed according to the contents of the will.

If you’re unsure of how the Scottish probate process works and you’d like more information, contact a professional probate practitioner with experience in this area.  A Grant of Probate issued in the Uk is very different to a Grant of Confirmation

Managing your inheritance

 

An unexpected windfall, even if it comes as an inheritance, can sometimes provide a little happiness and relief amidst the sadness of death.

 

So what would you do if you woke up one morning to be told that Aunt Jean had left you £400,000 in her will?

 

You’d only be human if you’d immediately consider paying off your mortgage, settling your bills and planning a holiday to some far off island.

 

Unfortunately money tends not to stretch too far these days and many people are caught unawares, when they realise that the thousands they had in the bank only a couple of years ago, has dwindled to hundreds, and they’re back to square one, facing financial difficulty

 

Paying off debts

Firstly, financial experts recommend that one way of managing your inheritance is to immediately pay off any debts, which are likely to be costing you a considerable amount each month, in interest. Begin by identifying the largest and most costliest debts, and paying these off first.

 

Paying off the mortgage is also a good idea, if your monthly payments cripple your household budget.

 

It’s a cliché, but always remember to put some money aside for a rainy day.  That doesn’t mean spending it on a holiday in January, when you’re feeling depressed, however.  Ensure that you have the funds available, should your car break down and need new parts, if your pet falls ill and needs surgery or, if you’re self employed, that you have the money set aside for when you need time off or if you fall ill.

 

One way of managing your inheritance is to consider a high interest savings account, this will ensure that you’re making money from interest without actually doing any work at all.  You may have decades left, so consider how you’re going to fund any additional care you’ll need in your old age.

 

Dying intestate in Scotland


As with English law, if the deceased did not make out a Will prior to their passing, then it is up to the legal system to allocate someone to deal with any outstanding debts and assets, to ensure that they are paid and distributed according to Scottish probate law.

Firstly, the Sheriff Court will nominate an individual, who will then act as the deceased’s representative for the purposes of probate.  This person is most likely to be the surviving spouse/partner or next of kin.

The first task of the representative – known in Scotland as the executor-dative, must be to apply for a bond of caution from an insurance company, which will then be sent to the Sheriff Court.  This bond simply states that the executor-dative is bound to distribute the deceased’s estate, according to Scottish law.

Beneficiares Rights

Prior rights are given to any surviving spouse or partner and apply to any property worth up to £325,000, assets valued up to £24,000 and cash up to £75,000.

After this has been distributed, a third of any further remaining assets, known as “legal rights”, can also be claimed by the surviving spouse/civil partner, with the other two thirds given to any surviving children.  If there are no children, the spouse/civil partner can claim up to half of the assets.

Finally, any assets remaining after all bills and taxes have been paid, are shared out among the deceased’s next of kin.

Charity legacies are a bitter pill

Why are charity legacies such a bitter pill?  It has been well reported that three times as many contentious probate cases have hit the courts in recent years; as families, disappointed in not receiving as much inheritance as previously thought, fight for this much needed cash injection.  

The problem?  It’s not usually that cousins, friends or colleagues have benefited instead, but animal charities have received the legacies.

In some cases, estates valued up to £1 million have been left to charities including the RSPCA – a move which has staggered and even angered many family members.

Charities have long since identified bequests as a means of raising significant funds, with many focusing their marketing campaigns on securing a greater number of bequests.   It was inevitable therefore, that the number of challenges would also increase, with around nine cases taken to court last year.

One of the major problems lies when a Will has been changed suddenly and often just before a death, removing the original beneficiaries and leaving all assets instead to a charitable organisation.

Relatives are left confused by this action and often argue that the deceased was obviously not of sound mind when they made the alteration.

Probate – insuring assets

As an executor, you may not realise the importance of having the deceased’s valuable assets insured, until such time as they have been disposed of or distributed.

Should their uninsured home suffer flooding whilst the probate process is underway for example, you could be held personally liable.

Always check that any insurance policies remain in place for at least six months after the person’s death and should probate continue after this time, check periodically that everything is still current.

Don’t allow valuables to remain on full view of visitors or passers by, when public notification of the death has been given.  Similarly, ensure that their home continues to look occupied and strengthen security measures if necessary.

The legal side of executorship

Although you don’t need to have specific legal knowledge to be an executor, you nevertheless need to take care when taking on the role, as you can be found personally liable, should you not carry out the probate process properly.

Your first action should be to ensure that any valuables, including the deceased’s home, continues to be fully ensured during this time in case of accident or intentional damage. 

Secondly, it is always advisable to use the services of professional probate valuers to ensure that whatever is sold, is done so at a reasonable cost, ensuring that beneficiaries are left with as much of the estate as possible.

Remember that all debts must be identified and paid (including Inheritance Tax) before any remaining assets can be distributed.

Always advertise the person’s death, so that any potential claimants or creditors can get in contact and any disputes have a chance to be ironed out.

Finally, it goes without saying that you must be able to demonstrate at all times that your actions were carried out in the best interests of the deceased and the beneficiaries, not your own personal gain.

The role of several executors

 

We all know that it is the executor of a will who ensures that all outstanding debts and taxes are paid on a deceased’s estate, before distributing the remaining assets as instructed by the will.

However, what happens when, as is so often the case, several executors have been nominated by the deceased?

Legally, up to four executors can in fact be identified, although they are not obliged to take up the role.

The democratic route is of course to agree on all actions taken during the probate process, although this can slow the whole procedure down considerably and give rise to disagreements.

A more efficient route is for all executors to identify and nominate one trusted individual to take charge and see that the probate process is carried out correctly.

In either instance, it is always advised that open, prompt and honest communication is the key to settling the deceased’s estate most quickly, accurately and with the minimum of stress and fuss.

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