Trust and probate

PROBATE AND TRUSTS

ADMINISTRATION OF ESTATES

There are a number of legal formalities which must be complied with in administering the estate of a loved one. The term “estate” essentially means the deceased’s property, including assets such as houses, bank accounts, shares, cash, furniture and personal belongings.

The legal process of dealing with someone’s estate is commonly known as “probate”.

The estate is usually administered by the deceased’s personal representatives; who may be appointed either by Will, or (where a person dies without a Will) in accordance with an order of priority of entitlement determined by what are known as the intestacy rules.

In order to deal with the administration of the deceased’s estate, in most cases a Grant of Representation must be obtained. A Grant of Representation is a Court Order which proves the Personal Representative’s authority to administer a deceased’s person’s estate.

Dealing with a deceased’s estate can be extremely time consuming; details and documentary evidence of all the deceased’s assets and liabilities must be obtained, and notification of the deceased’s death will need to be given to all persons with whom the deceased had dealings.

The size of the estate will need to be determined, and consideration will need to given to various issues such as what fees and forms will need to be completed and whether or not inheritance tax will be payable.

In addition, the deceased’s Will may have established trusts which will require implementation, or (where minor beneficiaries are concerned) a trust may need to be established.

You may not always feel able to deal with such matters immediately especially in the case of a close bereavement or sudden death.

At Samuels we act as both professional Executors and on behalf of Executors appointed to act under a Will. This can take the stress and worry away from appointed executors/family members so that they can grieve in their own way.

We will make all necessary applications to the Probate Registry on your behalf, obtain values of all the assets and liabilities and complete the administration of the estate on your behalf, ultimately ensuring that the estate is administered promptly and efficiently and distributed to those entitled either under the Will, or (where the deceased did not leave a Will) under the rules of intestacy.

TRUSTS

There are many main types of trusts created for different purposes. Often trusts are created for the purpose of asset protection, or for tax planning purposes. Assets may be placed in trust to prevent young persons becoming entitled to wealth until they attain a certain age or to prevent assets being taken into account by a Local Authority when assessing entitlement to long-term means tested residential care.

We at Samuels can advise you as to the formation and administration of trusts and on any trust/tax law issues which may arise.

DISPUTING WILLS AND ESTATES (Contested Probate)

Disagreements can arise for a number of reasons.

Disputing a Will

A Will may be invalid for a number of reasons:-

■ Failure to comply with technical formalities

■ Will obtained through duress or undue influence

■ The deceased lacking testamentary capacity

INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

Where a Will fails to make satisfactory provision for a spouse (or cohabitees), former spouse, children or dependants, a claim can be made to the Court to “redraw” the Will so as to make reasonable financial provision.

At Samuels we have extensive experience in dealing with disputes over Wills and inheritance.

There are a number of legal formalities which need to be complied with in administering the estate of a friend or loved one.

We act both as professional Executors, and on behalf of Executors appointed to act under a Will. We also act on behalf of Personal Representatives who are appointed to deal with the administration of an estate where someone has died without making a Will.

We can advise you and/or act on your behalf in relation to the administration of an estate, guiding you through the application for a Grant of Representation, and completing, or assisting you to complete, the relevant Inland Revenue forms. We can also advise you in relation to any debts or liabilities of an estate, encashing or selling estate assets, and in relation to distribution.

Often trusts are created by Will, and we can advise you in relation to setting up a trust, and the ongoing administration of that trust. Should it transpire that it is possible to take steps to minimise the amount of Inheritance Tax payable on the deceased's estate we can also advise you in relation to the steps that can be taken to achieve this purpose.

FREQUENTLY ASKED QUESTIONS

My mother has recently passed away without making a Will. She had a property and various investments. What should I do now?

A Grant of Representation will be required if the value of your mother’s estate exceeds £5,000. The persons who are entitled to take out a Grant of Representation and act as your mother’s Personal Representatives are generally these persons who will inherit your mother’s Estate in law. We can advise you as to who is entitled to share in your mother’s estate, and as to how the estate should be administered.

My wife is disabled and I am concerned that if I were to die before my wife she will go into a nursing home and anything I leave her will go towards nursing fees. Is there anything I can do to prevent this?

Yes, Drawing up an appropriate Will during your lifetime will ensure assets held in your name, or your share in any marital assets, can still be enjoyed by your wife after your death, but will ultimately not be taken into account by a Local Authority when assessing your wife’s contribution towards nursing home fees. You will need to include in your will a form of trust. We can advise you as to how this trust will operate and draw up a Will for you that will achieve your wishes. It is however important that you take these steps during your lifetime so as to ensure that your assets are “ring fenced” for the purposes of contribution toward nursing home fees on your death.

FAQ's

• My Mother has recently passed away without making a Will. She had a property and various investments. What should I do now?
  1. A Grant of Representation needs to be obtained in order to administer your Mother's estate. If your Mother left no surviving husband, you (and any brothers or sisters you may have) will be entitled to apply for the Grant.
  2. So that we can advise you as to who will inherit your Mother's property, and the next steps which you should take to administer the estate please make an appointment with one of our Trusts and Probate Solicitors.
• My Wife is disabled and I am concerned that if I were to die before my Wife she will go into a nursing home and anything I leave her will go towards nursing home fees. Is there anything I can do to prevent this?
  1. It is possible to set up a trust within your Will that will be effective in the event that you should predecease your Wife. It is possible to word your Will so that the trust fund shall be applied for your Wife's benefit during her lifetime, and following her death any remaining property or money within the trust shall go to your children (or whoever you would like to benefit).
  2. If you make an appointment to see a Solicitor within our Wills and Probate department we will explain this to you in more detail and draw up a Will which will give effect to your wishes.