Probate Solicitors

When someone close to you dies, we understand how difficult it can be to handle all their legal and financial affairs whilst still coming to terms with your loss. It might be the first time you have needed to take care of these arrangements, otherwise known as probate, and the process may be unfamiliar to you.

Our solicitors are approachable and sympathetic and can guide you through the process so you have one less worry on your mind.

To administer the assets of the deceased you will need to establish if a valid will has been made, identify all the assets and possessions owned by the deceased, as well as debts owed, and calculate any inheritance tax due. Then tax must be paid, debts settled, assets collected, accounts prepared and the estate must then be distributed correctly so you avoid any personal liabilities. Contact the team for advice.

Contesting Probate

Put quite simply contentious probate is a dispute which arises following the death of a person who has left assets to be inherited by beneficiaries to his/her estate. Assets may have been left to be distributed in accordance with a Will or the deceased person may not have left a Will at all, in which case the rules of ‘intestacy’ will apply.

When someone close to you passes away, you will want to see their assets distributed fairly. Losing a relative or friend can be hard to take and this can be all the more difficult when conflict arises over how their estate should be shared out.

We understand the sensitivities involved when disagreements surface over probate and inheritance claims.

Why Hodge Jones & Allen?

Our Tailored Offering

The service we offer will be tailored to your individual needs. We can assist you with the complete probate process from start to finish. Alternatively, we can just assist you with obtaining the legal authority to deal with probate yourself; this is known as the Grant of Representation and is essentially a court order. We can do as much or as little as you wish.

Specialist Team

Hodge Jones & Allen is regulated by the Solicitors Regulation Authority and our lawyers are members of the Law Society and the Society of Trust & Estate Practitioners. Should any disputes arise during probate we have a specialist team of dispute resolution solicitors who can assist you.

Rounded Advice

We can also help in circumstances where no Will can be found. The legal term for this is ‘intestacy’. Intestacy is governed by statutory rules. Our specialist team can advise you on those rules and assist in obtaining a Grant of Representation to deal with the estate in question.

Probate and inheritance disputes can be highly complex

We can help you challenge the terms of a will, if you feel you’ve been treated unfairly. You may find a claim has been brought against you in relation to a probate and inheritance dispute. Whatever your circumstances, we will defend your rights so you receive everything you’re entitled to.

Our solicitors are leaders in this field of expertise, and we have accreditation from Association of Contentious Trust and Probate Specialists.

Here are just some of the areas where we help clients contest wills and probate:

  • Lack of provision for beneficiaries or potential beneficiaries (Inheritance Act Claims)
  • Disputes between beneficiaries and the Personal Representative
  • Removal and/or replacement of the Personal Representative or Trustee
  • Promises given by the deceased
  • We also advise on disputes between trustees and beneficiaries involving the management of trust funds or we can pursue negligence claims if inaccurate legal/tax advice has been given.
  • Contesting a Will

Inheritance Act Claims

Under the Inheritance (Provision for Family and Dependants) Act 1975, a person can bring a claim against the estate (whether a Will has been made or not) if they have not been provided for at all, or not been reasonably provided for.

Provided the deceased was domiciled in England and Wales, the Inheritance Act 1975 allows the following class of people to make a potential claim:

  • Spouse or civil partner of the deceased
  • Claimants who cohabited continuously for at least 2 years immediately prior to the deceased’s death
  • The deceased’s child/ren (child can include an adopted, fostered and step-child); or
  • Claimants treated as the deceased’s child (including adult children)
  • Claimants being “maintained” by the deceased.

There are a number of factors that a court will take into consideration in balancing the potential needs of the claimant against the needs of the entitled beneficiaries under the Will or intestacy rules.

The team have successfully brought and defended such claims.

Disputes between the beneficiaries and the Personal Representative

Personal Representatives (Executors and Administrators) are held to specific legal standards and will owe a ‘fiduciary’ duty of care. Beneficiaries may wish to pursue a cause of action for a Personal Representatives action or inaction.

Below are a few causes of action which our Dispute Resolution solicitors may be able to assist with:

  • Failure to reserve funds in order to pay the deceased’s debts prior to distribution of the estate to the beneficiaries.
  • Misusing assets (e.g. using estate funds for the Personal Representative’s own personal gain).
  • Negligence for failing to act in a manner required to protect the estate (e.g. failure to collect rental income on estate property, failure to pay estate debts within reasonable time, or failure to seek investment advice prior to investing estate funds).
  • Breach of fiduciary duty. This could include but is not limited to self-dealing of estate assets without permission from the court.
  • Conflict of Interest, especially if they are also a beneficiary

The scope of breach of fiduciary duty is wide and would require further advice from our specialist solicitors.

Removal and/or replacement of Personal Representatives or Trustees

Personal representative is the term used to collectively refer to Executors and Administrators. Executors are most often appointed by Will. Administrators are often appointed where the deceased did not leave a will.

A Trustee can be an individual, company or other corporation (such as a trust corporation) who manages property held in trust for the beneficial interest of another; a beneficiary.

Removal of a Personal Representative or Trustee will depend on the facts of each case, but primarily this would be based on serious allegations of the breach of fiduciary duty that they owe to such an extent that it is no longer feasible for them to remain acting in their role. You may also need to consider at the same time, the potential replacement Personal Representative or Trustee that you would like to appoint in their stead.

Usually this may be agreed between the relevant parties, or provision may be contained in the Will or Trust Deed to deal with removing and appointing new Personal Representatives or Trustee. But in absence of agreement, then you may need to apply to court to have them removed (and replaced).

Promises made by the deceased

This is known as ‘Proprietary Estoppel’, which relates to “broken promises” made in relation to land and other property and its ownership and inheritance.

The elements which must be present in order to bring a claim in proprietary estoppel are:

  • There must have been an assurance (i.e. promise) of sufficient clarity made to the claimant;
  • And the claimant must have relied on this;
  • Which was to their detriment

These very typically arise in farming cases where the deceased promises the claimant that they will inherit the farm/business and as a result the claimant works for free /very little pay on the farm/business but is then left out of the Will or there is no Will.

Some examples of our probate work

Contesting a Will

The client was the co-beneficiary of his mother’s estate with his sister. Sister was the executor of the estate. However, when there were lengthily delays and the property in the estate had fallen into dilapidation, the client instructed us to issue a claim to remove the sister. The claim was successful and we were awarded our costs from the sister’s share of the estate.

Probate Dispute

The client was the executor of her late mother’s estate which consisted of the property. The 5 siblings were due to inherit in equal shares under the intestacy rule. One brother who was living in the property with their mother refused to vacate and alleged that he had an interest in the property by virtue of his contributions to the property and or a promise by their mother. Proceedings were issued but we managed to negotiate a favour settlement.

Specialist Probate Solicitors

Specialist Experts

Whatever your needs, our team of highly experienced Wills & Probate lawyers can provide you with the help and advice you need. Contact one of our experienced team, either by telephone or email.

Arrange a meeting

We will arrange a time to meet to discuss your needs and particular situation in greater detail.

Call FREE 24 hours a day

We’ll ensure that the solicitor you deal with is the right match for your specific situation, helping you find the best possible resolution during a stressful and often sensitive time.

Frequently asked questions

Registering a Death: When can the death be registered?

Once a doctor has issued a medical certificate giving the cause of death or the coroner has provided the necessary paperwork.

  • When can the death be registered?Once a doctor has issued a medical certificate giving the cause of death or the coroner has provided the necessary paperwork.
  • When should the death be registered?Generally, within five days of the death, unless the death is reported to the coroner and there has to be a post mortem or an inquest, which may delay registration.
  • Where must the death be registered?At the register office for births, deaths, marriages and civil partnerships for the district where the person died. You can register in a different district and the details will be passed on to the correct district.
  • Who can register the death?Preferably a relative, but it may also be someone who was present at the death, the person who is arranging the funeral or someone from the hospital or nursing home.

What information do I need to register the death?

  1. The medical certificate from the doctor;
    Full name (and any previous names) of the deceased
  2. The date and place of their death
  3. Their occupation and their last address
  4. Name, date of birth and occupation of their spouse/civil partner (whether still living or not)
  5. Any information you have relating to their state benefits
  6. Not essential – but it may be appropriate to take ID for yourself

What if the death is reported to the coroner?

The coroner may decide that:

  1. The cause of death is clear and that a post mortem isn’t needed – the death can then be registered
  2. That a post mortem is needed and they will release the body for the funeral once the post mortem has been completed and no more examinations are necessary
  3. An inquest is necessary. The death can’t be registered until that has been completed, but the coroner can issue an interim death certificate as proof of death and in some cases, may allow the funeral to take place.

Can I object to a post mortem if one is ordered by the coroner?

No, but you should tell them if you have strong religious or other objections.

Can I request an inquest?

No, only a coroner can insist on one, but relatives can attend and ask witnesses questions.

What happens when I register the death?

You will be given:

  1. A certificate for burial or cremation (green form) to be given to the funeral director
  2. A form for the DWP (BD8); and
  3. A death certificate (a copy of the entry made by the registrar in the death register), which costs £4 in England and Wales.

You can buy additional copies of the death certificate at the time and it is usually helpful to have several, for each asset holder.

I do not agree with the amount of inheritance left to me and think I deserve more. Can I make an application to the court?

Depending on your relationship to the deceased you may be able to make a “maintenance” application under the Inheritance (Provision for Family and Dependants) Act 1975 (“Act”). Section 1 of the Act lists the persons who may make an application to the Court for maintenance.

These persons vaguely fall into the following categories:

  • Spouse or civil partner of the deceased;
  • Claimants who cohabited continuously for at least 2 years immediately prior to the deceased’s death
  • The deceased’s child/ren (child can include an adopted, fostered and step-child); or
  • Claimants treated as the deceased’s child (including adult children)
  • Claimants being “maintained” by the deceased.

Should you consider yourself to have maintained by the deceased you may wish to speak to one of our team to assess the merits of your claim.

I am a beneficiary under a trust however I am unhappy with the trust management and would like my trustees removed.

Thankfully the law has created procedures for the removal and replacement of trustees in order to protect the interests of beneficiaries. We can assist you with the removal of a trustees however the mechanism to remove the same shall depend of the type of trust you have and what may be stated within the trust instrument itself.

Some trusts provide express provisions to remove and replace trustees. In cases where it is not possible to exercise a provision within a trust instrument, a court application may be necessary. Trustees may be removed or replaced due to i.e. powers within the trust instrument, lack of capacity, retirement or breach of fiduciary duty, some other legal enactment.

What happens when there is no Will?

If there is no Will, then the rules of ‘intestacy’ will apply to determine the order of inheritance as follows:

  1. Spouse or civil partner
  2. Children/grandchildren
  3. Parents
  4. Brothers and sisters
  5. Grandparents
  6. Uncles and aunts

A loved one left me out of their will, can they do this?

The laws of England and Wales allow those gifting their assets by Will (Testators) “testamentary freedom” to divulge their estate to whom they wish – there is unfortunately no presumption that certain people (such as children) should automatically be entitled to any inheritance. In the absence of a valid Will (see our section of contesting a will) the intestacy rules will apply.

The rules with England and Wales, however may not preclude a potential beneficiary from making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“Act”).

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Our offices are open from Monday to Friday from 9 am to 6 pm.

Phone:0808 231 6369
Fax:020 7388 2106
Address:Hodge Jones & Allen Solicitors
180 North Gower Street
London
NW1 2NB
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