Family Law Articles & Advice

With rental properties hard to find and expensive to rent, our family law solicitors receive numerous enquiries about whether a couple can legally separate and live in the family home.   If you need family law advice, contact Evolve Family Law.   What is a legal separation? A legal separation is where a husband and wife obtain a judicial separation from the family court. Applications for judicial separation are rare because: If you obtain a judicial separation, you will still need to divorce at a later stage. For example, if you want to remarry or if you need a financial court order to prevent further financial claims by your former spouse. You do not need a legal separation for official purposes. You can just tell agencies, such as the Inland Revenue or the Local Authority, that you are separated.   Do I need a legal separation? People often assume that they need a legal separation or a judicial separation order, but they do not unless they have a religious or cultural objection to a divorce and want to formalise their separation. If you plan to get divorced later, you don’t need a judicial separation first, as you can sort out your financial affairs by signing a separation agreement.   Can spouses live separately in the same house? You can separate or even divorce and still live in the same house. Some couples think that if they continue to live together, they cannot get divorced, but that isn’t correct. Under current English divorce law, you can get divorced if your marriage has irretrievably broken down by starting no-fault divorce proceedings.   Separating when your spouse will not leave the family home. If you have decided to separate and your husband or wife will not leave the family home, you have the option to: Apply for an injunction order – an occupation order can give you the right to occupy the family home to the exclusion of your partner until the long-term ownership or sale of the property is determined by agreement between you or by the court in divorce and financial settlement proceedings. Apply for a spousal maintenance order and child support so that you can afford to leave the family home and rent somewhere until the long-term ownership or sale of the family home is decided. It is best to take specialist legal advice from a divorce solicitor before leaving the family home and moving into rented accommodation. It may be best to stay in the family home if leaving will disrupt the children or if your spouse will delay sorting out a financial settlement or the sale of the property. Alternatively, you may need a child arrangement order if there is a dispute over the living arrangements for the children when you or your spouse moves out of the family home.   You might also be interested in [related_posts]   Separating and cannot sell the family home. Most people would agree that it is a tricky housing market, so whilst you may have decided to separate or divorce, you may not be able to sell the family home quickly. You can be separated or divorced and still live at the family home, although for some, it won’t be a very comfortable experience. Even in the best situations where you are splitting up amicably, it can still feel as if you are in limbo with your life suspended until you can achieve the sale of the family home. One way to reduce the stress of waiting for the sale of the family home is to have a financial agreement in place. A separation agreement means you know who will receive what when the property is sold. Although you may have concerns about having to drop the property sale price, a fair financial settlement can still be reached if you agree to receive a percentage share of the net proceeds of sale rather than a fixed amount. That way, you are both protected, whether house values move up or down. In divorce proceedings, a financial settlement can be reached by agreement or after financial settlement proceedings, but in either scenario, you should obtain a financial court order that records how all your assets will be divided, including the equity in the family home, savings, and pension provision. If you are separated but don’t want to start divorce proceedings, it is still best to record the financial settlement that you have agreed to avoid one of you changing your mind about how much you should get from the sale proceeds when you have found a buyer for the house. A document, called a separation agreement, should be prepared to formalise the agreement reached.   Manchester and Cheshire divorce solicitors The team of specialist divorce solicitors at Evolve Family Law can help you with your separation and no-fault divorce proceedings, as well as child custody and contact, and reaching a financial settlement.   If you need family law advice, contact Evolve Family Law.   The Evolve Family Law offices are in Whitefield, North Manchester and Holmes Chapel, Cheshire.

There are no absolute right or wrong answers to what you should or should not do during a separation because your personal and financial circumstances are individual to you. However, our family law solicitors can offer general guidance about what it’s best not to do during a separation.   Contact Evolve Family Law Today for Expert Family Law Advice.   Why are you separating? The basis of your separation is relevant to what you should or should not do during your separation. That’s because if your separation is a trial separation, it’s important not to take any steps that mean it is less likely that you will get back together, such as: Not attending Relate or counselling sessions or telling your partner that they are a waste of time before you give the sessions a chance. Saying that you won’t go to individual counselling sessions. For example, to address anger management issues. Taking all the money out of a joint account without your partner’s agreement or advance knowledge. Refusing to pay towards household bills or child support (despite being in a financial position to do so) because you think that if your husband or wife finds it hard to manage financially without you, then the family are more likely to get back together Imposing an unrealistic timetable on the trial separation, for example, saying that your partner must decide if you are going to get back together or not within two weeks. Refusing to agree to contact arrangements with the children or not attending the family home for agreed contact with the children. Following your partner or sending numerous texts or social media messages so they end up feeling overwhelmed by you. Contacting your partner’s family or friends to try to get them to influence your husband, wife or partner to reconcile with you.   If your partner wants a trial separation, it is easy to feel angry about their decision if the news that the relationship is in trouble comes as a complete surprise to you, and to let your feelings sabotage the trial separation. Counselling and family law legal advice can help you resolve marital issues during a trial separation.   Family law advice during a trial separation Many couples going through a trial separation think that they should not seek specialist legal advice to explore their options. However, taking legal advice can be a sensible thing to do because it will help you determine if you or your spouse has grounds to initiate divorce proceedings and what the likely financial settlement and child care arrangements may be. That information may influence your thought process. Your consultation with a divorce solicitor is completely confidential to you. You do not need to tell your husband or wife that you have taken legal advice if you do not want to do so. They may have also taken family law advice and decided to say nothing about talking to a family law solicitor until you decide on whether you are going to be able to reconcile or not.   Warning signs during a separation If you are desperate to make a trial separation work and to reconcile with your spouse, it can be tempting to ignore warning bells. You should not do that; instead, you should seek legal advice. Warning signs include your husband or wife: Transferring large amounts out of savings or investment accounts. Taking out loans against the family home – this is especially concerning if the family home is registered in your spouse’s sole name. This can be prevented by registering a notice with the land registry. Asking you to leave the family home partway through the trial separation, or if it becomes apparent that they are planning to sell the family home. If the family home is owned in their sole name, there are steps that you can take to protect yourself. Selling assets or transferring property, such as shares in a family business, to a family member. Asking you to sign a postnuptial agreement. Starting to make plans to relocate overseas with the children. Any of these warning bells, or anything else of concern to you, means you should quickly talk to a family law solicitor rather than trust that the trial separation is a genuine attempt to repair your relationship whilst you both give one another space.   You might also be interested in [related_posts]   What should you not do if a separation is permanent?  If you know that your separation is permanent, or if a trial separation has not worked out, then it is often assumed that it is ‘no holds barred’ with divorce lawyers. However, divorce solicitors say that approach can be counterproductive and result in it being harder for you to reach an agreement over childcare arrangements or a financial settlement. If your separation is permanent, then generally you should not: Leave the family home before taking legal advice – it may be preferable for your partner to leave instead of you, or you may be able to get an injunction order requiring them to leave. Reach an agreement on childcare arrangements or a financial settlement without first taking divorce legal advice – that’s because if you agree to something that isn’t in your best interests during direct discussions with your husband or wife, it is then far harder to get them to accept a fairer childcare or financial arrangement. Stop contact between the children and the other parent because you are angry about your husband or wife’s behaviour. Contact should only be stopped after legal advice and if there are child care safety or other child-related issues. Feel rushed into starting divorce proceedings because of pressure from family or friends to do so. Start divorce proceedings without either you or your divorce solicitor first informing your husband or wife of your intention to do so. Unless the situation is urgent, it is usually better to inform your partner about the planned divorce proceedings, as this can help reduce animosity. It also makes it easier for you to reach a financial settlement or agree on child custody and contact arrangements. Every separation is different, and individuals react differently to a separation. That’s why there are no hard and fast rules on what you should or should not do if you separate from a partner or spouse. One of the best things that you can do is ensure that you are not rushed into making decisions and have the information you need to make informed decisions. A divorce solicitor can help you with that, whether your separation is a trial separation or a permanent separation.   How can Evolve Family Law help you?    The friendly and approachable divorce solicitors at Evolve Family Law talk to people who don’t know whether they want to separate or not, as well as to husbands or wives who are very clear that divorce proceedings are the right path for them. We can assist with: Preliminary consultations for those contemplating a separation. Initial advice on staying in the family home and injunction orders. Advice on short and long-term living arrangements for the children. Help with short-term negotiations on child support and spousal maintenance, and with a long-term financial settlement.   Contact Evolve Family Law Today for Expert Family Law Advice.   The Evolve Family Law offices are in Whitefield, North Manchester and Holmes Chapel, Cheshire. We also offer remote meetings by appointment via video call or telephone.

The short answer is yes; you can do probate without a solicitor. However, if you are an executor, you need to know what administering an estate involves to decide if you want to instruct a probate solicitor to administer the estate under your instructions. If you have questions about probate or about appointing a probate lawyer, our team of specialist private client solicitors are here to help. For probate advice call our specialist probate lawyers or complete our online enquiry form.   Applying for probate without a solicitor Any executor can apply for probate without instructing a solicitor. Sometimes, when the executor and beneficiary are the same person and the estate is small, the risks of acting as executor without a probate lawyer are low. In other situations, the risks and personal liability could be significant. If you are named as a joint executor in a Will, you can decide jointly with the other executors if you want to appoint a probate solicitor.  The fact that a solicitor was not appointed as an executor in the Will does not prevent you from instructing a lawyer. If you decide to apply for probate without a solicitor, you need to consider: If you have the time to act as an executor. Whether acting as executor will cause family friction. If you are prepared to accept the personal liabilities that come with an executor appointment. If you can cope with the additional stress at a time of bereavement. If you are applying for probate without a solicitor, there is a potential for an increase in time to administer the estate and distribute it to the beneficiaries. Time, worry and liability may all be non-issues for you if you are the sole executor and beneficiary of a small estate. We recommend that you speak to probate lawyers to get a quote so you understand what a solicitor is likely to charge, so that you can make an informed decision. At Evolve Family Law, we provide transparent information about our costs. Some information can be found here on the typical costs of probate services. For more information on costs, give us a call.   Who pays for a probate solicitor? The estate pays for the costs of instructing a probate solicitor. The costs are not the liability of the executor/s. The lawyer’s fees are discharged along with other debts, such as utility bills on the deceased’s home and funeral expenses. The estate pays the costs of the probate lawyer even though an executor, rather than a lawyer, was named in the Will. Most Will makers understand that their executors may elect to instruct a lawyer because their Will solicitor will run through the options with them.   The role of an executor An executor’s job is to administer the estate of the deceased. That involves: Ascertaining the deceased’s assets and the value of the estate. Checking to see if tax will be payable. Working out if there are any debts. Applying for probate. Completing a tax return and paying any tax. Selling or transferring assets so the terms of the Will can be implemented. Paying the debts. Dealing with any challenges to the Will, such as on the grounds of validity or because the Will did not make reasonable financial provision for a dependant partner, second spouse or other claimant. Sorting out any specific bequests, such as jewellery. Paying any legacies to beneficiaries. Creating estate accounts. Finalising the estate accounts by paying the remaining estate monies to the residual beneficiaries.   The 12-point list is long and can be daunting to some lay executors, especially as the law says that an executor is personally liable for any mistakes made, even if they are genuine errors. For example: Undervaluing the estate for tax purposes. Paying the wrong amount to a beneficiary. Not paying a debt that was due before distributing the money from the estate. Paying a residuary beneficiary too much from the estate. Not realising that some assets fall within the estate, such as jointly owned property owned by the deceased as a tenant in common with the co-owner. Facing complaints by a residuary beneficiary, such as a charity, that the money raised should have been more, as the sale of property or other assets was not handled correctly. Not understanding what to do when faced with someone challenging the deceased’s Will because they say the Will was not drawn up correctly, was signed under duress, was signed when the deceased did not have the capacity to sign a Will, or because the Will did not make adequate provision for them. Not paying HMRC the correct amount of tax. Some mistakes are easy to make. For example, not realising that inheritance tax will be payable or assuming that a beneficiary is liable to pay the tax. The issue for executors is that they can be held liable for the error. This can be a significant problem, especially where the executor is not the sole beneficiary of the estate.   The role of a probate lawyer If an executor instructs a probate solicitor, the lawyer sorts all the estate administration out for them or can agree to do the more limited task of obtaining the grant of probate and then leaving the executor/s to finalise the estate distribution. Although the executor appoints a lawyer, the executor remains in post. The executor’s job is to instruct the lawyer and authorise the actions they take. For example, the executor will formally approve the estate accounts prepared by the solicitor.  In the unlikely event that an experienced probate firm makes a mistake during the probate process, the executor has redress, as all qualified and regulated probate solicitors must adhere to standards set by their professional regulatory bodies and have professional indemnity insurance.   You might also be interested in [related_posts]   Taking probate legal advice The best advice for anyone thinking about dealing with probate without legal help from a specialist probate solicitor is to get advice on whether it is sensible to try. A good probate solicitor will tell you if probate is required and, if it is, whether there are warning signs to suggest that you will need legal assistance. Some key flags for taking probate legal advice include: The estate is likely to be liable to pay inheritance tax. The deceased owned their own business, either as a sole trader, partner in a firm or as a company director. The deceased has left all or part of their estate to charity. The estate has complicated assets in it, such as a buy-to-let property portfolio or overseas property. The deceased has left their estate to minor children, and there are trusts involved. The deceased had a complicated personal life, so there is an increased risk of an inheritance dispute or estate challenge. For example, the deceased left a separated or former spouse, unmarried partner, or children from different relationships, and there is a risk that the Will may be challenged on the basis that it does not contain adequate financial provision. The deceased had a complicated financial life with lots of investments and debts that will need to be sorted out before the estate is distributed. You will find the process of acting as an executor and handling the probate yourself too distressing during a time of bereavement. There is a risk that you will fall out with sibling executors or fall out with members of the family who are beneficiaries because they have unrealistic expectations of timescales and what a lay executor can do.   Talk to Evolve Family Law If you need help in deciding whether to handle a probate, give us a call to discuss the estate and your options. If you choose to ask us to handle the estate, we can take care of it entirely, relieving you of the stress whilst keeping you informed.   For probate advice call our specialist probate lawyers or complete our online enquiry form.

If you have inherited a legacy, whether it is a part share in a house or a cash gift, you are reliant on the executors of the estate to sort out probate, gather in the assets, and then distribute the assets in accordance with the deceased’s Will.   For expert Will writing and probate advice, call our team of specialist Will and probate lawyers or complete our online enquiry form.   The executors of a Will The executors of a Will are people chosen by the deceased to handle their Will. The executors could be family members, friends, or professionals, such as a solicitor, accountant, or the bank.   Appointing a probate solicitor   If the executors are friends or family of the deceased, then the executors can hand over a lot of the responsibility for sorting out the deceased’s estate by instructing a probate solicitor to administer the probate, the sale of assets, and the distribution of legacies to beneficiaries. Most lay people take this option as they are honouring the appointment made in the deceased’s Will, but not leaving themselves open to criticisms about delays in payment of legacies or problems with securing probate.   Problems with executors Here are some examples of problems that beneficiaries can experience with the probate process: A friend or family member appointed as an executor may not get on with the other executors or with the beneficiaries. This can lead to a lack of trust and frustration due to delays. The executor may say that they want to sort out the probate themselves without instructing a probate solicitor, leaving the beneficiaries fearing there will be a delay in sorting out the estate and the payment of legacies. The deceased may have appointed a bank as his or her executor not appreciating that the bank’s charges for handling the estate may be a lot more than a local Cheshire probate solicitor. The additional administrative charges might be an issue for the beneficiaries, as the costs of sorting out probate and administering the estate will be deducted from the estate before the remaining estate, after payment of any legacies, is divided between the residuary beneficiaries.   How do you remove an executor from a Will? If you think that an executor is not up to the job, or think that they are too slow, or maybe acting improperly, then a court application can be made. The court can make a wide range of orders, including an order to remove an executor. Cheshire probate solicitors usually recommend that you try to resolve the difficulties with an executor first before starting court proceedings. Sadly, that isn’t always possible. As a last resort, court proceedings can be started to secure an order to remove an executor.   You might also be interested in [related_posts]   Avoiding executor problems A specialist Will solicitor will discuss the choice of executors when preparing a Will because it is important that the executors are not too elderly or frail to be up to the task and will be able to work with one another. It is sometimes thought that it does not really matter who the executor is if the executors are going to appoint a solicitor to sort out the estate for them. However, it is still essential to choose your executors with care and to make sure that they are willing to undertake the task for you.   For expert Will writing and probate advice, call our team of specialist Will and probate lawyers or complete our online enquiry form.

Will and inheritance dispute solicitors at Evolve Family Law have substantial experience in writing wills, estate planning, inheritance claims and advising on probate. Their expertise enables the team to provide the specialist advice that Will-makers need on how to prevent someone from contesting a Will.   For expert Will writing advice, call our team of specialist Will lawyers or complete our online enquiry form.     Can a Will be contested? Many of us hope we have protected our loved ones after our death by making a Will. However, making a Will does not stop someone from trying to contest its provisions after your death. Even if a Will-maker signs a Will setting out where they want their property and money (referred to as their estate) to go, their express instructions in their Will can be challenged by either: Alleging the Will isn’t valid. Claiming the Will doesn’t make reasonable financial provision for a person who has a right to make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975. The 1975 Act applies to estates in England and Wales.   Stopping your Will from being contested on grounds of validity If you get your Will prepared by a specialist Will solicitor, it is less likely to face a successful validity challenge because a private client lawyer is highly experienced in Will writing and execution. A Will challenger can claim that a Will is invalid for a variety of reasons: The Will was not witnessed properly in accordance with the law on witnessing requirements. The Will-maker was coerced or unduly influenced into making the Will. The Will-maker lacked testamentary capacity to make the Will. For example, because of their age, dementia or other health condition affected their ability to make decisions or because they were receiving hospital or hospice care and on strong medication when they signed their Will. It is part of the job of a Will solicitor to try to ensure that a Will is valid. They will therefore try to minimise the risk of a Will being contested on the grounds of validity by taking precautions. These include: Giving clear advice on how the Will needs to be signed and witnessed. Ensuring that the Will-maker’s instructions are taken, rather than relying purely on a family member or friend to pass on the Will-maker’s instructions as to what should be included in the Will. If the Will-maker wants to make a completely different Will to their previous Will or an unusual Will (for example, leaving their entire estate to someone they have just met when the Will-maker has a close and supportive family) the Will lawyer can explain the potential for the Will to be challenged and can advise the Will-maker to write a letter to accompany the Will to explain the decision behind the new Will. Alternatively, an explanation can be included in a Will. For example, that provision in the Will has not been made for a spouse because of a separation. It is essential in those circumstances that family law advice is also taken, as a spouse can still make a claim against the estate unless a clean break financial court order is obtained. Checking to see if there are any health or other issues that might enable someone to question whether the Will-maker lacked testamentary capacity when they signed their Will. If there are any question marks, it is sensible to be cautious and obtain a medical certificate to say that the Will-maker had the capacity to sign their Will. Although someone can challenge testamentary capacity even where there is a certificate, the claim is far less likely to be successful if the point was addressed when the Will was made.   You might also be interested in [related_posts]   Reducing the risk that your Will can be challenged because it doesn’t leave reasonable financial provision The best way that you can reduce the risk of your Will being challenged because it doesn’t leave reasonable financial provision to a potential claimant is to be honest with your Will solicitor. Sometimes people are embarrassed to be upfront about their personal or financial circumstances. For example: Not saying that they have a child from a previous relationship because of the child’s age and other family circumstances, or Not mentioning a new partner as they don’t want family members to know about their partner, or Not revealing that they have not obtained a divorce from a separated spouse, or Not explaining the vulnerability of family members or their financial dependence.   Whatever you tell your Will solicitor is confidential. The lawyer cannot give detailed advice without all the necessary information about your family and potential claimants. In addition, your Will is private. During your life, the contents of your Will do not have to be disclosed to your family. However, explaining your Will to your family may help them understand why it is fair. After a Will-maker has passed away and probate is granted, the Will is accessible as it becomes a public record. A Will solicitor can explain the options (such as the creation of a trust and writing a letter of wishes if the testator wants to keep things private after their death). A lawyer specialising in Wills can advise on the potential reasonable financial provision claims that could be made against the estate. For example, your estate may be left to your second spouse, but your child from your first marriage may have a potential claim. Alternatively, if you leave all your estate to your children, a claim against the estate could be made by your former husband or wife because they were receiving spousal maintenance at the date of your death.   Tips on how to reduce the risk of a Will dependency claim under the 1975 Act There are lots of things that a Will solicitor can advise on to reduce the risk of financial provision claims, including: Creation of a trust during your lifetime. Lifetime gifting. Creating a discretionary trust in your Will. Preparing a careful letter of wishes to accompany your Will so your trustees can exercise their discretion and hopefully avoid a dependency claim. Taking family law advice, for example, capitalising spousal maintenance or taking out life insurance to cover any potential spousal maintenance claim against the estate. In addition to advising you on potential claims against the estate, your Will solicitor can also advise on estate planning to make your Will as inheritance tax efficient as possible, after considering your family and personal circumstances.   For expert Will writing advice call our team of specialist Will lawyers or complete our online enquiry form. ​ Evolve Family Law offices are in Holmes Chapel, Cheshire and Whitefield, North Manchester.  

Have you been asked to be the executor of the Will of a loved one or friend? In this article, our probate solicitors explain what an executor is and answer your questions on the role of an executor.   For expert probate advice call our team of specialist probate lawyers or complete our online enquiry form.   The appointment of an executor in a Will An executor is named in a Will as the person responsible for managing the deceased’s estate. The responsibilities of an executor involve: Working out what assets the deceased had. Gathering the assets in so that they can be distributed. Paying any outstanding debts. Paying any inheritance tax, capital gains tax or other tax liability. Applying for probate and obtaining the grant of probate. Sorting out any challenges to the validity of the Will or claims made alleging that the Will did not make reasonable financial provision for them. Finding any beneficiaries if they have moved address. Distributing the estate to the beneficiaries in accordance with the Will.   Appointment as an executor People often appoint a friend or family member as an executor in their Will. It may feel like an honour to be asked to fulfil the role of executor (assuming you are asked, as it is not that uncommon for people to only find out that they are one of the executors of a friend's or loved one’s estate after the deceased has passed away!). Unfortunately, executors can quickly realise how onerous the honour is. Sometimes, because executors have been personally appointed by the deceased to act as the executor, they feel that they must ‘’go it alone’’ not realising just how time-consuming a task acting as an executor can be or how difficult it is to resist pressure from friends and family to sort out the estate quickly. For executors who feel under pressure or all at sea with what to do with the paperwork, the administration and form filling and handling of queries and demands from beneficiaries, there is help at hand. An executor can instruct a specialist probate solicitor to deal with the estate. Acting with the executors, the solicitor will guide everyone through what can be a very upsetting and daunting process.   The benefit of an executor appointing a probate solicitor The benefits of an executor getting professional legal help in sorting out an estate are highlighted by the reported case of Glyne Harris. He hit the headlines as he was ordered to pay about £341,000 in inheritance tax because of his personal and legal obligations as the personal representative of Helena McDonald’s estate. How on earth could Mr Harris be liable for tax payable by the estate? A good question and one we are sure Mr Harris wishes he had asked when deciding to administer the estate without legal help. Mr Harris paid most of the deceased’s estate to a beneficiary on the understanding that the beneficiary would be responsible for payment of the inheritance tax from their legacy. This was a genuine mistake on the executor’s part. The beneficiary disappeared, leaving HMRC pursuing Mr Harris for the £341,000, because there was nothing left in the estate to pay the tax bill. The court ruled that Mr Harris was responsible for the inheritance tax bill because the executor of a Will is personally liable for paying any income, capital gains tax, or inheritance tax due, even if they have not received a legacy from the estate.   Key considerations if you are asked to be an executor of a friend’s or loved one’s Will Here are some key considerations if you are asked to be an executor of a friend’s or loved one’s Will: If you are asked to be an executor of a Will, it is a voluntary role. You can decline the honour. It is essential to ask who the other executor/s will be. If the other executor is a law firm, you may feel far more relaxed about your appointment. On the other hand, if the other proposed executor is a family member whom you know you will struggle to work with, it may be best to decline the appointment. If you are appointed as an executor without first being asked to act, or if your circumstances have changed after the Will was drawn up or for any other reason, you can decline to act as executor and renounce the role. If you want to act as an executor, you have the option of appointing a probate lawyer to handle everything and administer the estate. The solicitor’s fees are met out of the estate. The appointment of a solicitor not only reduces your executor's workload but also means that if a mistake is made (such as paying out the estate to the beneficiaries before the tax is paid), you can potentially pursue a claim against the solicitor under their insurance. If you agree to be the executor of a Will, the Will should ideally have been drawn up professionally. Why? If a specialist Will solicitor has not written the Will, the terms may be ambiguous. That in turn can lead to more complexities and time in sorting out the estate, and ultimately to more legal expenses in resolving the mistakes in the Will. As well as being personally liable for paying tax, the executor is also liable to make sure all debts are paid and that the correct beneficiaries are given the right legacy. This can be a minefield if the Will is ambiguous, leading to inheritance disputes or if there are many beneficiaries, or someone makes a claim against the estate alleging that the deceased didn’t make reasonable financial provision for them in the Will. If the executor appoints a solicitor to handle the estate, those worries are taken away from the executor. An executor cannot escape liability for errors or mistakes because they were doing their best or because they made an honest mistake. That’s why most executors decide to instruct a probate solicitor to give themselves protection.   You might also be interested in [related_posts]   What next if you are an executor of a Will? Well, firstly, don’t panic. The case of Mr Harris is rare. What isn’t so unusual is the stress that executors find themselves under when trying to do a good turn and handle an estate without the time or legal know-how. Probate solicitors can be very user-friendly, and appointing a private client solicitor to take the worry and stress out of sorting out the estate administration and paperwork following a friend or loved one’s death can be the best option. You are still the executor, but you have a professional to share the burden with you and guide and support you through the process.   For expert probate advice call our team of specialist probate lawyers or complete our online enquiry form.

Enquiries are rising about whether family members and loved ones can challenge Wills. In this blog, our Contesting a Will solicitors look at the grounds for contesting a Will.​   Call Evolve Family Law for advice on challenging a Will or complete our online enquiry form.   ​Can I contest a Will? The grief and distress experienced at a time of bereavement is increased if you don’t think that your loved one’s Will is correct or fair. It is best to take legal advice on the Will and whether you have the grounds to contest the Will. Our team of specialist lawyers provide discreet, sensitive advice about your options. What are the grounds for contesting a Will? You may be able to contest a Will if: The Will maker lacked testamentary capacity, or The Will was not executed properly, or The Will maker was unduly influenced to make the Will, or The Will was fraudulent or forged. In addition, if you have not been named as a beneficiary in a Will or if you haven’t been left as much as you need and you were dependent on the deceased, you may be able to bring a claim against the estate. This is different to challenging a Will on one of the four grounds.   Contesting a Will because of a lack of testamentary capacity A Will is not valid if the Will maker signed their Will at a time when they had lost their mental capacity to manage their own affairs (referred to as a lack of testamentary capacity by contesting a Will lawyers). That’s because a Will maker must have testamentary capacity to make or change a Will. Loss of mental or testamentary capacity means that the Will maker didn’t have the mental ability to understand what they were doing when they signed their Will and the impact that their actions would have on their estate. If the person signing the Will did not have mental capacity at the time it was executed, and if the Will is successfully challenged, the estate will pass and be administered in accordance with either: The deceased’s most recent valid Will, or If the deceased did not make an earlier Will, their estate will be distributed under the intestacy rules. It is therefore important to understand what would happen to the deceased’s estate if a Will is challenged, as intestacy rules can produce unexpected results.   Contesting a Will because the Will wasn’t executed properly A Will may not have been executed properly as it wasn’t signed by the Will maker or their signature wasn’t properly witnessed by two witnesses. If the Will wasn’t executed properly, then the Will is invalid. This means the deceased’s estate will pass in accordance with any earlier validly executed Will or, if there is no earlier valid Will, under intestacy rules.   Contesting the Will because the Will maker was unduly influenced to make the Will If the Will maker was under undue influence or was pressured or coerced into making a Will, the Will may be invalid. There may be a red flag over whether there was undue influence if the deceased was elderly or vulnerable and left their estate to someone they had only met shortly before their death, and the deceased had always stated that they would leave their estate to family members or friends. Any challenge to a Will based on undue influence has to carefully look at what evidence there is of undue influence, other than suspicion on the family member’s part. This is because to contest a Will based on undue influence, the applicant must be able to show that the deceased would not have made the legacy in the Will without being subject to coercion or undue influence.   Contesting a Will because the Will was fraudulent or forged If a Will is fraudulent or forged, then it is invalid. Examples of forged Wills include: Forging the Will maker’s signature to make sure the Will is executed, or Destroying a Will so that an earlier Will is thought to be the valid Will, or because, under intestacy rules, the fraudulent person will get the lion’s share of the estate.   Should I contest a Will? If you want to contest a Will because you have concerns about its validity, then it is best to take legal advice. A contesting a Will solicitor can assess: The grounds for challenging the Will The evidence The size of the estate Your prospects of reaching a compromise or securing a court order   You might also be interested in [related_posts]   How do you contest a Will? If you want to contest a Will, it is essential to act and obtain legal advice as soon as you can. That’s because there are time limits to contest a Will. For example, if you are bringing a claim as a dependant of the deceased, the time limit is six months from the issue of the grant of probate.   If you decide to contest a Will, then you can make a claim, referred to as a ‘caveat’, to the Probate Registry office. The claim means the probate won’t be completed, and therefore the estate won’t be distributed without your being notified and able to pursue the claim. The caveat lasts for six months but can be renewed if an extension is justifiable.   If, during the period of the caveat, you cannot resolve the Will dispute by agreement, then you have the option of starting court proceedings to contest the Will. When determining the application, the court will weigh up all the evidence. That’s why it is best to seek specialist legal advice before commencing court litigation. That way, you can make informed choices on whether pursuing the court case is in your best interests. Our Private Client and Contesting a Will Solicitors Deciding whether to challenge a Will isn’t an easy decision to make. For sensitive, pragmatic help, call Chris Strogen at Evolve Family Law or complete our online enquiry form.

As specialist Will solicitors, the lawyers at Evolve Family Law are keen to ensure that families understand the legal complexities of Wills and the family home and have Wills that reflect their wishes and meet their family's needs. For expert estate planning advice and help with your Will call our team of specialist Will lawyers or complete our online enquiry form. In this article, Will solicitor Chris Strogen looks at: Joint property ownership and estate planning Wills and joint ownership of property The family home and your Will Severing a joint tenancy The family home and estate planning options Reviewing your Will Joint property ownership and estate planning When you make a Will, it is crucial to check if you own any jointly owned property as joint tenants or as tenants in common with your co-owner. The jointly owned property could be: The family home A holiday home A buy-to-let property Investment property Commercial property Whatever the purpose of the property, a quick check with the land registry can establish if you and your co-owner (or co-owners) own the property as joint tenants or as tenants in common. Wills and joint ownership of property The different types of joint ownership of property are important when buying a property and when estate planning because: Joint tenants - co-owners automatically inherit property owned as joint tenants even if the deceased co-owner made a Will. Tenants in common- if one co-owner passes away, then their share in the tenancy in common owned property passes by their Will. If they have not made a Will, then their share in the property passes under intestacy provisions. The family home and your Will Many people assume that they don’t need a Will because if they die first, the house will automatically pass to their partner. That is not correct if you own the property as tenants in common. Even if you own a house as joint tenants, you should still have a Will. This is because a Will records what happens to other assets, such as household contents, your car, any savings or other property. When discussing your financial and family circumstances with your Will solicitor, you may decide that the best option for you is to sever the joint tenancy so your share in the family home passes under your Will rather than automatically to your co-owner. An estate planning lawyer will advise you of your options and how to write a Will that potentially could: Minimise the risk of family members claiming a share of your estate because they think that reasonable financial provision was not made for them, and Reduce the amount of inheritance tax payable by your estate. Severing a joint tenancy If you jointly own a property with a co-owner, you may realise that you don’t want your co-owner to inherit your share in the property. For example: You may own a family home with your former husband or ex-wife, or If you have children, you may want your children to inherit your share in the property. This could be achieved by leaving your share in the property to them in your Will or creating a Will trust so your partner has the right to live in the property for the remainder of their life, but your share in the property then passes to your children, or You may own an investment property with a sibling or friend. To avoid your co-owner inheriting your share of the jointly owned property, you can sever the joint tenancy so you hold the property as tenants in common. If you sever the joint tenancy, there are three points to note: You don’t need your co-owner’s agreement or consent to sever the joint tenancy. You need to make a Will, as without a Will, your share in the property will pass under intestacy rules. If you have an existing Will, you should consider reviewing the Will to ensure that it is up to date, inheritance tax efficient, and that you have minimised the risks of your Will being challenged. If you sever the joint tenancy and your co-owner passes away, their share of the property will pass under their Will or under intestacy rules. If the joint tenancy had not been severed, the property would have passed automatically to the co-owners upon the death of the first owner.   You might also be interested in [related_posts]   The family home and estate planning options If your family circumstances are complicated, you may be concerned about deciding on whether to make a Will, review your Will, or decide on whether to own your property as joint tenants or as tenants in common. You may be concerned about leaving your share of the family home to a new partner, as you feel the need to balance the needs of your new partner with those of your children from a previous relationship. There is a range of estate planning options to help you achieve a balance you are comfortable with. For example, you could give your partner a life interest in your share of the family home, allowing them to continue living in the property. However, if they sell or pass away, your share of the property will then pass to the beneficiaries named in your Will. Reviewing your Will You may have made your Will many years before you bought your jointly owned property, or the value of your estate may have changed. That is why it is important to review your Will to ensure your share of your property passes to the person or people you want to leave it to. By reviewing your Will regularly, as family and financial circumstances change, you can minimise the risk of your Will being challenged and protect your loved ones. For expert estate planning and help with your Will call our team of specialist Will lawyers or complete our online enquiry form.