When you have suffered a bereavement, it can be hard to navigate what you need to do to sort out a loved one’s estate and their financial affairs. In this article we look at what a grant of probate is and whether you will need to obtain one. What is probate? Probate is the legal process of administering the estate of a deceased person so that assets are gathered in, any debts paid and the estate distributed. If the deceased left a valid Will their estate will be distributed in accordance with the terms of the Will. If the deceased didn’t make a Will their estate will be distributed in accordance with intestacy rules. If there is an intestacy, the legal process of administering the estate is called ‘letters of administration’. Who deals with probate? The task of an executor named in a Will is to deal with probate. Most executors don’t deal with the probate personally but instead ask a probate solicitor to deal with the legal work for them. As an executor they retain overall control of the administration of the estate and give instructions to the solicitor. If the deceased died without making a Will, they died ‘intestate’ and the intestacy rules say who can apply to administer the estate and who will receive the estate. An administrator can ask a probate solicitor to administer the estate on their behalf. What is a grant of probate? A grant of probate is the legal document that gives the executor of a Will the legal authority to act. Without a grant of probate most third parties won't act on the instructions of an executor as they need evidence that the deceased has died and that the person contacting them is the authorised executor or administrator of the estate. How do you apply for a grant of probate? In most situations the grant of probate follows a set path, namely: The executor, or the probate solicitor instructed by them, gets information about the estate, including the assets and any debts The grant of representation is applied for An inheritance tax form is completed and, if necessary, any IHT can be paid The grant of probate is received The assets of the estate are gathered in (for example, shares or property may be sold depending on the terms of the Will) Any debts payable by the estate are discharged (for example, outstanding care home fees or utility bills on a property) The estate is then distributed in accordance with the Will or intestacy rules. Estate accounts are prepared to show the monies and assets received, debts and taxes paid and how the estate was distributed. Some grants of probate are straightforward but others can be complicated. For example: If the named executors in the Will do not get on If the beneficiaries of the Will are potentially going to challenge the speed or work of the executors in securing the grant of probate and distributing the estate If the validity of the Will is challenged If there is a dispute over the Will and questions over whether it made fair financial provision for a dependant of the deceased If there are likely to be complicated inheritance tax, CGT, trust or sale issues because of the size of the estate or the nature of the assets. For example, if the deceased died within a short time of making lifetime gifts or where the estate consists of a large buy to let property portfolio or some assets are overseas, such as a holiday home The family want to change the Will provisions through a deed of variation. [related_posts] Who pays for probate? Some people think that if they are named as an executor in a Will that they have to undertake the obtaining of the grant of probate personally. That isn’t normally the case as Wills enable an executor to instruct a probate solicitor. The costs of the grant of probate and the probate solicitor come out of the estate before it is distributed to the beneficiaries. The probate solicitors’ cost will depend on the size and complexity of the estate. Fixed fee or hourly cost quotes should be made available. At Evolve Family Law we believe it is very important that fees are transparent and publish a price guide on our website. For a bespoke quote please call us and we can look at the work you would like us to do. Is a grant of probate necessary? In some family situations, an executor or a loved one or beneficiary will question if a grant of probate is necessary. Probate solicitors say this question is totally understandable as no one wants to go through unnecessary processes. In situations where the estate is very small a grant of probate may not be needed. Whether you need a grant of probate or not doesn’t depend on whether there is a Will or not or whether a husband or wife is inheriting the entire estate, but rather depends on the size and nature of the assets in the estate. If there is a property to sell, a grant of probate will always be required. If you aren’t sure whether a grant of probate will be needed or not our Manchester and Cheshire probate solicitors are always happy to advise you on if a grant of probate is needed and, if so, the likely probate solicitors’ fees for securing probate for the estate. We are Manchester and Cheshire probate and Will solicitors Evolve Family Law specialise in private client law advice. For advice about a grant of probate or your responsibilities as an executor or whether you can challenge a Will call us or complete our online enquiry form. Evolve Family Law have offices located in Whitefield, North Manchester and Holmes Chapel, Cheshire but our private client and Will solicitors are experienced in working remotely and offer meetings by telephone appointment or video call.

Our private client solicitors will tell you that enquiries are rising about whether Wills can be challenged by family members and loved ones. In this blog we look at the grounds for contesting a Will.​ ​Can I contest a Will? When a family member passes away it is a difficult time. Your grief and distress can be increased if you don’t think that your loved one’s Will is correct. If that is the case, then it is best to take legal advice on the Will and whether you have the grounds to contest it. Our contesting a Will solicitors 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’ve been left out of a Will or you haven’t been left as much as you need and you were dependant on the deceased, you may be able to bring a claim against the estate. This is different to challenging a Will on the above grounds.   Contesting a Will because of lack of testamentary capacity 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 solicitors) then their Will isn’t valid. That’s because you must have testamentary capacity in order to make or change your 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 executing the Will doesn’t have mental capacity at the time that their Will is executed then, if the Will is successfully challenged, the estate will pass and be administered in accordance with their most recent valid Will instead. If the deceased hadn’t made an earlier Will then their estate will be divided under the rules of intestacy. 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. As a result of the Covid-19 pandemic the government has introduced temporary remote witnessing of Wills if certain criteria are met. That has raised additional concerns if the Will maker is vulnerable. If the Will wasn’t executed properly then the Will is invalid and 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 then 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 only met shortly prior to their death and the deceased had always said that they would leave their estate to family members or friends. Any challenge to a Will on the basis of undue influence has to carefully look at what evidence there is of undue influence, other than suspicion on the family member’s part, because to contest a Will on the basis of undue influence you need to be able to say 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 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 on one of the above grounds because you have concerns about a Will then it is best to take legal advice. That is because challenging a Will can create tensions between family members or bad feeling. A contesting a Will solicitor can assess the grounds for challenging the Will, the evidence and your options. [related_posts] How do you contest a Will? If you want to contest a Will it is important to take action and obtain legal advice as soon as you are able to do so. 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 that 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 are not able to 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 and that’s why it is best to take specialist legal advice before starting the 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 or not to challenge a Will isn’t an easy decision to make. For sensitive, pragmatic help contesting a Will call Chris Strogen at Evolve Family Law or complete our online enquiry form. Our offices in Holmes Chapel, Cheshire and Whitefield, Manchester are open for face to face meetings, however an appointment is required. We also offer remote meetings by appointment by video call or telephone for those who prefer not to travel.

Nowadays we like to think that every type of relationship is valued and that whatever the nature or status of our relationship we are all treated fairly and without any form of discrimination. If you are in an unmarried relationship the world has changed from a generation ago where there was still a social stigma if you were unmarried or had children ‘out of wedlock’. Although the attitude of society has changed to unmarried relationships when it comes to the law on Wills and estate planning the law hasn’t caught up. That’s why it is essential that if you are in an unmarried relationship you understand why you and your partner each need a Will. Wills and married and unmarried relationships When it comes to Wills and married and unmarried relationships unless you are a private client solicitor, or have had advice from one, you probably won’t appreciate just what a difference a piece of paper makes, namely your marriage certificate or civil partnership certificate.   If your relationship has the legal status of marriage or civil partnership then as a spouse or civil partner you have: Intestacy law rights if your husband, wife or civil partner dies without leaving a Will The right to bring a claim against your husband, wife or civil partner’s estate if they leave a Will but the Will doesn’t make reasonable financial provision for you Inheritance tax concessions as a spouse or civil partner Capital gains tax exemptions on transfers between spouses and civil partners.   If you are in an unmarried relationship then on your partner’s death: If your partner dies without a Will and intestacy rules apply then an unmarried partner will not get an automatic share of the estate. That means you could be left with nothing unless you are able to make a court claim against the estate An unmarried partner can only bring a claim against the estate of their partner if the partner died intestate without leaving a Will or they left a Will but reasonable financial provision wasn’t made for them in the Will and they fall within one of two categories, namely, a person who for two years prior to the death of their partner was living with the deceased as spouse or civil partner although not married or if the unmarried partner was being maintained by the deceased prior to the deceased’s death. That means an unmarried partner has to either prove a two-year relationship or dependency on the deceased If an unmarried partner receives an inheritance or lifetime gifts there are no specific inheritance tax or capital gains tax exemptions or allowances.   As cohabitation is an increasingly popular form of relationship and because many adults in the UK don’t have a Will there are many people in unmarried relationships who will be left in a financially vulnerable position on their partner’s death.   Some people assume that they won’t have this problem as they are a ‘common law’ husband or wife or because they have been in a relationship with their partner for over three or five years. These are all myths. There is no legal concept of a common law husband or wife as, in the law, you are either treated as married or unmarried. [related_posts] What happens if my unmarried partner dies without leaving a Will? If your unmarried partner dies without making a Will then their estate will pass under intestacy provisions. These are set out in statute and the intestacy rules say that the deceased’s estate will pass to: The deceased’s child or if there is more than one child the estate will be shared equally between the children (or their descendants). The child or children (or grandchildren) can get their inheritance when they reach the age of eighteen or If the deceased doesn’t have any children or grandchildren then their estate will pass to their parents or if the parents have already passed away to any siblings or, if none, to more distant relatives.   The intestacy rules can be challenged if you were in a cohabiting relationship for at least two years or you were financially dependent on your partner but that means court litigation against your children or your partner’s relatives.   What happens if an unmarried partner makes a Will? A Will sets out who should receive an estate or be left a gift out of the estate. If your partner leaves his or her estate to you as you are in an unmarried relationship then the Will makes things a lot less complicated and far less stressful. Instead of having to make a court claim you are entitled to the estate or gift. The legacy can only be challenged if another person successfully brings a claim against the estate, for example, saying that your partner did not have capacity to make the Will at the time that the Will was executed by them because of a dementia diagnosis.   Will solicitors say that if you are in an unmarried relationship it is best to have a conversation with your partner so that you both know where you stand and to make Wills so that you and your family are protected in case your unmarried relationship is brought to an end by the death of your partner. Our Manchester and Cheshire Will solicitors Evolve Family Law specialise in family law and private client law advice. For advice about a new Will or changing your existing Will call us or complete our online enquiry form. Evolve Family Law have offices located in Whitefield, North Manchester and Holmes Chapel, Cheshire but our private client and Will solicitors are experienced in working remotely and are offer meetings by telephone appointment or video call.

If you aren’t a Cheshire Will solicitor you may not know where to start with making your Will. In this blog we look at how to make a Will, something that we should all do to protect our loved ones.   It is easy to keep putting off making a Will because you have too much to do or you aren’t sure what to put in your Will but a Will is something that we should all have. Covid-19 has emphasised the need to make a Will although some people believe it isn’t possible to make a Will if you can't see a solicitor because of lockdown or the Covid-19 tier system. Most private client solicitors are working remotely so if you do want a Will writing for you then coronavirus shouldn’t put you off as your Will instructions can be taken over the phone or by skype to ensure that you have an up to date Will that reflects your wishes.   Covid-19 - can I still make a Will? Nowadays Covid-19 comes into most conversations and it is no different when private client Will solicitors are asked questions about making a Will. Many people assume that if they are shielding or social distancing that they’ll have to wait to make or change their Will but that certainly isn’t the case. If you are not comfortable with an office appointment then the Will solicitors at Evolve Family Law can arrange either a telephone or video appointment, whatever suits you best.   During any remote appointment our Will solicitors take the same care and pay the same attention to detail to make sure that you understand your Will options and ensure that your Will leaves your estate to your loved ones.   You may also be concerned about how your Will can be completed if you are trying to maintain social distancing or comply with government regulations. We can talk you through how your Will can be executed, including the option of having your Will witnessed remotely. That’s because the government has authorised the remote witnessing of Wills on a temporary basis and provided safeguards are met.   What do I need to make a Will? You don’t need anything to take the first step of making a Will as a Will solicitor can either talk you through the information they need to prepare the Will for you or alternatively, if you prefer, they can send you a Will questionnaire for you to complete.   The main things that a Will solicitor needs to know in order to advise you on your Will and prepare it for you are: Roughly how much is your estate worth - you don’t need to get anything valued as all your Will solicitor needs is a very approximate ball park figure so they know if inheritance tax will be relevant to your estate Whether all of your assets are in the UK - if you own property overseas then you may need another Will to cover your overseas based property Whether any of your assets are jointly owned - if you own property jointly, for example, with a wife, husband or civil partner, then your share in the property may pass outside of your Will unless you sever the joint tenancy Whether you have any dependants - a dependant could be a former husband or wife who is receiving spousal maintenance from you, a child receiving child support, an adult child who is financially reliant on you or your cohabitee or partner. Whilst you can leave your estate to who you want as there is no legal requirement to leave all or a share of your estate to your dependants or family members, a Will solicitor can advise you on the prospects of a dependant trying to contest your Will and how to reduce the risk that your Will might be contested Whether you have any children or planned beneficiaries under the age of eighteen - if you do then you may want to consider the appointment of testamentary guardians in your Will for your children. You will also need to consider leaving money in trust for your children or minor beneficiaries The planned executors of your Will and beneficiaries- if you haven’t made any final decisions about your choice of executors (the people named in your Will as responsible for administering and distributing your estate) then don’t worry as your Will solicitor can discuss your options, including the appointment of family members, your solicitor or another professional as executor. When it comes to beneficiaries your Will solicitor can talk you through your options and make sure that your Will is as ‘future proofed’ as possible so that if ,for example, you want to leave all your estate to your husband or wife or a share of your estate to an older sibling there are ‘substitution gifts’ in your Will. That means that if your spouse predeceases you their legacy is shared, for example, between your children or in the case of your sibling between your nephews and nieces. Alternatively the gift can fall back into your estate and form part of the legacy to your residuary beneficiary or beneficiaries. [related_posts] When to make a Will Will solicitors say that it is never too early to make a Will or, if you have an existing Will, it is equally important to make sure that the Will is up to date and still reflects your wishes.   At any important life event you should consider making or changing your Will. Life events include: Buying your first house – whether on your own or jointly with a partner When you get engaged to marry or enter a civil partnership When you sign a prenuptial agreement When you have children or adopt If you separate or divorce from a husband, wife or partner If you form a new relationship or remarry If you suffer ill health On retirement If you receive a legacy or inheritance.   There are many other scenarios when you should consider making or changing your Will, such as the death of a beneficiary or an executor to your Will. Making a Will can be a very positive experience for you because: It makes you feel that you have taken steps to protect family members and loved ones You can say who you would like to administer your estate through the appointment of executors of your Will You can safeguard young children with the appointment of a testamentary guardian You can use your Will and estate planning to minimise your estate’s liability to inheritance tax.   How to make a Will The easiest way to make a Will or to change an existing Will is to speak to an experienced private client and Will solicitor. They can look at your goals and objectives and work out how best to achieve them. This may include: Lifetime gifting Inheritance tax planning Lifetime trusts Trusts created in your Will and the flexibility and guidance issued to your trustees with discretionary trusts The structure of legacies and the disposal of your residuary estate Contingency legacies so, for example, a grandchild or children, will receive a legacy instead of their parent if their parent sadly passes away before you do so. Carefully drafted contingency legacies means that your Will doesn’t have to keep being rewritten on the birth of a new grandchild How to try and ensure that the Will isn’t challenged or contested by a dependant leading to litigation against your estate. This can be achieved by carefully assessing what, if any, dependency claims can be brought against your estate and how to minimise the risk of a successful claim.   How long does it take to make a Will? The role of a private client and Will solicitor is to make the Will process as simple for you as possible. It is possible to make a Will in a matter of hours but you may, depending on your family circumstances, want to reflect on private client and Will advice before finalising your Will.   Your Will isn’t effective until it is executed. That involves your signing your Will witnessed by two witnesses. As a result of the Covid-19 pandemic the government has temporarily relaxed the rules on witnessing Wills and now allows for a Will to be remotely witnessed to ensure that you can still execute a Will whether or not you are in a Covid-19 related lockdown.   The best way to make a Will is to take the step of picking up the phone and speaking to a friendly and approachable private client and Will solicitor about your options so that you can achieve a well drafted Will that protects your family and gives you peace of mind. We are Cheshire private client and Will solicitors For assistance making or changing your Will or estate planning call Chris Strogen at Evolve Family Law or complete our online enquiry form. Evolve Family Law has offices in Holmes Chapel, Cheshire and Whitefield, Manchester but an appointment at the office isn’t needed to make a Will as Evolve Family Law offers remote meetings by either telephone or video call appointment.

A power of attorney authorises nominated members of your family or trusted friends to act on your behalf if you are not capable of making your own decisions because you lack capacity to do so. Many people don’t think that they need a power of attorney but accidents or sudden ill-health can happen to us all so it is sensible to put a power of attorney in place so it is there if you need it. What Is a Health and Welfare Power of Attorney? There are two types of power of attorney and you can chose to have both or just one type, depending on your preferences. The health and welfare power of attorney gives authority to your nominated family or trusted friends (who are referred to as attorneys) to make decisions about your care needs and medical treatment.    Your attorneys are only able to act on the power of attorney if you are not able to express a view on your medical treatment or care needs because you lack capacity. Lacking capacity is something that is assessed by doctors and could occur, for example, if you are in a coma after an accident or have had a severe stroke or are on a ventilator.   What is a property and financial affairs power of attorney?  A property and financial affairs power of attorney authorises your nominated family, friends or professional advisors (who you appointed as your attorneys in the power of attorney document) to manage your property and financial affairs. For example, if you lack capacity to manage your own financial affairs it could be very helpful to have a trusted person ensure that all your household bills or care home fees are paid from your bank account or to arrange the sale of your family home if you need to downsize to a sheltered apartment or are moving to live with a family member.   A property and financial affairs power of attorney can either be set up so that it can only be used if you lose capacity or at any time, depending on your preferences. For example, if you have capacity to make your own decisions but spend a lot of time overseas it can be helpful to have an active property and financial power of attorney so your attorneys can sign paperwork on your behalf.   Who should you appoint as an attorney in a power of attorney? Your choice of attorney may depend on the type of power of attorney you are executing. If the power of attorney is a health and welfare power of attorney you may want to choose close family members or friends who know you well and would know what medical choices you would be likely to make if you had the capacity to make your own health and welfare decisions.   If you are planning to execute both powers of attorney then you can choose different attorneys for each document as you may think that different friends or family members would be better suited to manage your property and financial affairs.    If you decide, at a later date, that you want to change an attorney then you can do so provided that you have the capacity to change the document. That’s why it is important to review your powers of attorney when you are reviewing your Will or your insurance provision to make sure changes don’t need to be made.   How long does a power of attorney last for? A power of attorney is indefinite in length and will last until you cancel it. You can cancel a power of attorney at any stage provided that you have legal capacity to do so. That means that if you execute a power of attorney whilst in your twenties nominating your husband, wife or siblings to be your attorneys then the power of attorney document may never need changing. Obviously if you separate or divorce or one of your attorneys loses capacity or passes away then you can change the power of attorney at that stage. [related_posts] When is a power of attorney used? A power of attorney has to be registered with the Office of the Public Guardian but a health power of attorney won't be used unless you lack the capacity to make your own decisions. Any loss of capacity to make your own decisions could be temporary or permanent, depending on the nature of your condition. A property and financial affairs power of attorney could be set up so it is only used if you lose capacity or so that the power of attorney can be used by your attorneys, depending on your preferences.   Is a power of attorney necessary?  If you lack capacity then a power of attorney makes it a lot easier for your friends and family to help and support you. Sadly, loss of capacity can happen quickly (because of an accident) or slowly (without our realising that we are losing our capacity) and that’s why it is sensible to sign a power of attorney so that you have the power of attorney in place when or if you need it.   If you wait and lose capacity then you can't sign a power of attorney at that stage. In addition your relatives can't sign a power of attorney for you. If you become incapacitated without a power of attorney then your family or friends can make an application to the Court of Protection for a deputy to be appointed to look after your affairs.    The drawback of not executing a power of attorney is that a court application for the appointment of a deputy costs more in legal fees than signing a power of attorney. In addition if you lose capacity your attorneys can immediately help you through the authority given to them in the power of attorney document. If family or friends have to make an application to court for a deputy to be appointed there is likely to be a delay between the Court of Protection application and the appointment of the deputy.    How much does a power of attorney cost?    At Evolve Family Law we believe it is important to be upfront and transparent about legal fees so we publish a price guide on our website under "Our Prices". That way you have the confidence of knowing the price of a power of attorney document before calling our friendly power of attorney solicitors.   Although Evolve Family Law charge a fixed fee for your power of attorney you will get bespoke legal advice from a specialist private client and power of attorney solicitor that looks at your personal situation for a fee that is simple and understandable.  We are Manchester and Cheshire Private Client and Power of Attorney Solicitors For specialist private client advice on your power of attorney or making or changing your Will or estate planning call Chris Strogen at Evolve Family Law or complete our online enquiry form. Evolve Family Law has offices in Holmes Chapel, Cheshire and Whitefield, Manchester but we also offer remote meetings by appointment by video call or telephone.

If you’d asked a Will solicitor back in late 2019 if there would be changes made to the 1837 Will Act most experienced Will lawyers would have said no. However, Covid-19 is bringing about changes to how Wills are witnessed with some saying that it’s taken a global pandemic to change a law made in the 1800’s. With news of local Covid-19 lockdowns being imposed in Greater Manchester and parts of Lancashire and fears that the localised government Covid-19 related constraints will be extended into Cheshire the changes are broadly welcomed by Cheshire Will solicitors. Cheshire online Will solicitors If you need help making a Will or changing your current Will then the Holmes Chapel based Wills and estate planning team at Evolve Family Law can help you.  Call us or complete our online enquiry form and we can set up a telephone appointment, face to face appointment, video conference, or Skype call for you. ​ Witnessing a Will A Will has to be witnessed in accordance with the law. If the Will isn’t witnessed properly then the Will may be contested. If the Will is found by the court to be invalid as it wasn’t witnessed properly then your estate could pass under the provisions of an earlier valid Will or pass under intestacy rules. That means that your family, loved ones or nominated charity may not end up with a share of your estate. That’s why Will solicitors say it is essential that Wills are executed and witnessed properly.   Under the 1837 Wills Act a Will has to be witnessed by: Two witnesses The witnesses shouldn’t be beneficiaries of your Will The witnesses should be present when you sign the Will and see you sign the Will.   The Will witness requirement meant it was tricky during the height of the Covid-19 pandemic for people to arrange for their Wills to be witnessed especially when Will solicitors were forced to work online because of the government imposed lockdown and the difficulty of getting neighbours to witness Wills whilst practising safe distancing or shielding.   The remote witnessing of Wills To help people wanting to put their personal and financial affairs in order during the Covid-19 outbreak the government has said that it will change the law to allow Wills to be witnessed remotely for the next two years or longer if required.   The government recognises that there is a danger that the remote witnessing of Wills could result in fraud or abuse of the elderly or vulnerable and has therefore issued guidelines to Will solicitors and to the general public on the remote witnessing of Wills.   For those of you who have already executed your Will and are worried that the execution was carried out correctly and is valid then the best thing is to speak to a specialist Will lawyer. The good news is that the government has said that the Will witnessing reforms to allow remote witnessing of Wills is to be backdated to 31 January 2020 provided that: The Grant of Probate hasn’t already been issued The application is already in the process of being administered.   The new law will remain in place as long as necessary and will apply to Wills made up to two years from when the legislation comes into force (the 31 January 2022) but this period could be shortened or extended if deemed necessary by the government.   It should be noted that although the government intends to change the law to allow remote witnessing of Wills the government has said that the use of video technology should be a last resort and people making or changing their Will should continue to arrange physical witnessing of the execution of their Will where it is safe to do so. [related_posts] Government guidance on making Wills using video-conferencing The government guidance on the remote witnessing of Wills applies to both Wills and codicils (a supplementary document that is sometimes used to make minor changes to a Will rather than creating a totally new Will).   The guidance reminds Will solicitors that a Will or codicil isn’t valid unless: The Will or codicil is in writing and The document is signed by the testator or by some other person in the testator’s presence and at their direction and The testator has capacity to make the Will The testator intended by their signature to give effect to the Will and The testator’s signature was made or acknowledged by the testator in the presence of two or more witnesses who were present at the same time and The two witnesses attest and sign the Will The witnesses have a clear line of sight and can see the testator sign the Will (even if their line of sight is through a window or in light of the planned law change remotely through video conferencing).   Video-witnessing or remote witnessing of Wills If a Will is witnessed remotely then the same rules apply to the valid execution of a Will save that the witnesses witness the Will being signed remotely. This doesn’t have to be by video conferencing as it could, for example, take place over Zoom or Facetime.   The important point is that the person making the Will and their two witnesses each have a clear line of sight of the signature to the Will in real time. It is best that the remote signing and witnessing process should be recorded and the recording retained in case the Will is challenged.   The original Will should be in the possession of the testator when it is signed and the signature witnessed remotely. However, the two remote witnesses still need to sign the Will so the Will should then be taken to the two witnesses for them to sign, preferably within twenty four hours unless a longer time period is unavoidable. When the witnesses sign the Will the testator should ideally remotely see the two witnesses sign the Will and acknowledge that they have seen the two witnesses sign. As part of the remote witnessing process the Will should be held up so the Will can be seen.   The government is making the changes to the law on witnessing Wills as the government recognises the importance of writing a Will and the peace of mind that a Will can give to both the testator and their loved ones. Our Online Cheshire Will and Estate Planning Solicitors For help writing a Will or with estate planning call the Will and estate planning solicitors at Evolve Family Law or complete our online enquiry form. We can arrange a telephone appointment, video conference or Skype call to discuss how we can help you with writing a Will or changing your existing Will.

You can write your own Will but Cheshire private client and Will solicitors say that the better question to ask is ‘’should you write your own Will?’’ . That is because going it alone, without expert Will advice, can have serious unintended consequences for your friends and family. In this blog we look at some of the common problems encountered with do-it-yourself Wills. Do I need a Will? We all need a Will, whatever our personal or financial circumstances, although it is fair to say that some people need one more than others. For example: If you have a complicated family set up with children from different relationships or step-children You are getting married You are in a cohabiting or non-married relationship You are going through a separation or divorce You own a business Your estate will be subject to inheritance tax unless you carry out estate planning You have financial dependants, such as young children or a former husband or wife that you continue to pay spousal maintenance to You want to make specific bequests or the intestacy provisions (if you die without a Will) would create a result that would not be what you wanted to do with your estate You want to leave money to charitable causes.   Having acknowledged that they need a Will some people are then tempted to write one themselves. Their philosophy appears to be ‘’how hard can it be to put down on paper what will happen to your money when you die?’’ The answer is that it can be surprisingly easy for someone to prepare a Will that either isn’t legally valid or doesn’t actually say what they meant to say. [related_posts] Common problems with ‘’do-it-yourself Wills’’ include: A Will is witnessed by one person. Two people need to witness the Will being signed. If they don’t do so then the Will isn’t valid One or both of the witnesses to the signing of the Will didn’t actually see the Will maker sign his or her Will. If the Will is challenged then the failure to properly execute the Will could make it invalid The Will is witnessed by two people but one of the witnesses (or their husband, wife or civil partner) is left a share of the estate or a legacy in the Will. Whilst the Will is legally valid but the gift to the beneficiary (or their spouse or civil partner) is void The Will leaves the family home or business to a beneficiary but at the date of death the family home or business has already been sold. The beneficiary isn’t entitled under the terms of the Will to the sale proceeds of the family home or business. The beneficiary may therefore end up with nothing whilst the person writing the Will thought there were leaving their most valuable assets to a named beneficiary After making various specific gifts to beneficiaries the Will doesn’t say what will happen to the balance of the estate, referred to as the residue. That could result in a partial intestacy with some of the estate passing to unintended beneficiaries under intestacy rules The Will does not say who will receive a gift or the residue estate if the named beneficiary dies before the person writing the Will. The gift won't go to the nearest relative of the intended beneficiary but will fail. This will increase the size of the residuary estate. If the person who is gifted the residue of the estate passes away before the Will maker and there is no substitute beneficiary named in the Will then the residue of the estate will pass in accordance with the intestacy rules The Will maker does not carry out any inheritance tax planning as part of their Will preparation. This could mean the difference between the estate paying no inheritance tax or thousands of pounds in inheritance tax The Will writer assumes that their jointly owned family home or their pension fund will pass by their Will but that isn’t necessarily correct because, for example, the home is owned as joint tenants and the joint tenancy was never severed or the pension scheme rules says that the pension fund passes by nomination rather than through the provisions in a Will.   These are just a few of the things that can go wrong when you chose to write your own Will. Sadly, it is often not until it is too late and someone has passed away, that friends and family find out about the unintended consequences of a badly prepared do-it- yourself Will.   It is therefore best to take advice from our Cheshire Will solicitors when contemplating drawing up your own Will. If you are concerned about the cost of a Will then a solicitor can talk you through the cost. At Evolve Family Law we publish a price guide for the services we provide that includes the cost involved in preparing a Will for you. Many realise that getting an expert to write a Will not only isn’t that expensive but gives the security of knowing that your loved ones are properly protected.   Why use Evolve Family Law to write your Will? We think the question ‘’why use Evolve Family Law to write your Will?’’ is best answered by quoting the words of two recent clients of Will solicitor, Chris Strogen. The clients said:   ‘’Thank you so much for a great service, absolutely first class’’.   ‘’Very helpful and friendly, effective and efficient. Definitely recommend’’. Online Cheshire Will and Estate Planning Solicitors To make a Will or estate planning call the Will and estate planning solicitors at Evolve Family Law or complete our online enquiry form and we will arrange a face to face meeting, telephone appointment , video conferencing or Skype call to discuss how we can help you.

Lawyers refer to ‘the probate’ of a loved one and often make assumptions that everyone knows what probate is. That certainly isn’t the case but sometimes, after the death of a loved one or relative, you are too upset or embarrassed to ask questions about probate and what it involves. In this blog we look at what probate is, what it involves and answer your questions about probate. What is Probate? Probate is the name of the legal process that may have to be undertaken when a person passes away to legally enable the deceased person’s assets , property and belongings to be sold or transferred in accordance with the Will or, if the deceased left no Will, under intestacy rules.   The word ‘probate’ is a legal term, like conveyancing for the legal work connected with a house sale or purchase. It is just a historic word for sorting out the legal paperwork after the death of the deceased. Do you always need to get probate? Not every estate needs to go through probate. It is a blessing if an estate does not have to go through probate as it saves the relatives and beneficiaries time and money if the estate of the deceased does not have to go through probate.   If you are uncertain if an estate will need to go to probate it is best to ask a Cheshire Probate solicitor who will be able, with a bit of information about the size and contents of the estate, to be able to tell you if probate is needed and, if so, how long it is likely to take and cost in legal fees. Does an estate have to go through probate if there is a Will? An estate doesn’t necessarily have to go through probate if there is a Will. That is because probate doesn’t depend on whether the deceased left a Will or died without a Will (intestate) but on the size of the estate and the type of assets it contains. That is why it is best to get specialist help so the estate doesn’t spend unnecessary money on probate if it isn’t needed. What happens during probate? If you are told that your loved one or your relative’s estate needs to go through probate then it is difficult to understand what takes the time unless you know what probate involves.   Probate is the technical term for the legal process of sorting out the property, money, possessions (called the estate) and the financial affairs of the person who has died. If the deceased died without leaving a Will then ‘letters of administration’ are needed before the estate can be disposed of in accordance with intestacy rules.   If the deceased died leaving a valid Will then a ‘ grant of probate ‘ is needed before the estate can be distributed to the beneficiaries in accordance with the terms of the Will.   Once the letters of administration or grant of probate is obtained then the next of kin or the executors of the Will have the legal authority to sell or transfer the assets in the estate, either according to intestacy rules or the provisions in the Will. Step by step guide to probate If you are the next of kin or the executor of a Will it can be frustrating to think that ‘nothing is happening’ but probate takes time because it involves: Identifying the deceased’s assets and liabilities. How difficult this is depends on the paperwork left by the deceased and the nature of their estate and any liabilities. This is the first step to see if probate is needed and to determine the value of their Estate Checking if the deceased died intestate or with a valid Will and identifying the relevant next of kin under the intestacy rules or beneficiaries under the Will Calculating the value of the estate and seeing whether any inheritance tax is payable to HMRC. A tax return has to be completed Applying to the probate registry for the letters of administration or grant of probate Once the documents are provided by the probate registry paying off any debts and liabilities from cash left by the deceased or selling assets to pay any debts that the deceased had at the time of his or her death and, where necessary, paying any inheritance tax payable on the estate to HMRC Preparing estate accounts to record the assets in the estate (including cash movements from the date of death of the deceased) to show what assets have been sold and what liabilities and debts paid. These accounts are approved by either the executors of the Will or, in the case of an intestacy, by the deceased’s next of kin Checking to make sure that there are no challenges to the Will or claims against the estate and , if not, arranging for the balance of the estate to be distributed to the next of kin entitled to the estate under intestacy rules or the beneficiaries under the Will. This can involve the sale or transfer of the family home or an investment portfolio. If the estate is large or complex then sometimes interim distributions are made until the estate can finally be sorted out and any final dispositions made to the next of kin or beneficiaries. [related_posts] Do you need a probate solicitor to get probate? You don’t have to use a probate solicitor to secure probate. The choice is yours. However, the size and the complexity of the estate might make it best to instruct a probate solicitor. For example, if there is likely to be inheritance tax payable or capital gains tax. Other scenarios that would justify using a probate solicitor to secure probate for the estate include: The next of kin in an intestacy or the executors of a Will don’t get on very well with one another or there are ‘trust issues’ One of the next of kin or the beneficiaries is very keen for the estate to be distributed very quickly and you don’t have the time to sort out the estate as quickly as they would wish There is the potential for the Will to be challenged, either by someone saying that the Will isn’t valid or that the deceased didn’t leave reasonable financial provision for a family member or dependant out of their estate. Claims can also be made against an estate if the deceased died without leaving a Will and a close family member or dependent says that the intestacy provision doesn’t make reasonable financial provision for them Protecting the executors from personal liabilities arising from acting as the executor of a Will. For example, protection from tax liabilities The complexity of the estate, for example does the estate include a family business or should a deed of variation be completed to minimise inheritance tax payable on the estate?   There are other reasons why you may want or need to use a probate solicitor and that is why it is best to talk to a probate solicitor about what getting probate involves and the costs and timescales before making a decision about whether to apply for probate without a solicitor. Cheshire probate solicitors If you have questions about probate or need advice on getting probate please call Chris Strogen at Evolve Family Law for a quote. Call or contact us online. Appointments are available in Holmes Chapel Cheshire or Manchester or by video conference, Skype or telephone appointment.