Avoiding contentious probate for business owners

09 Sep 2020

Everyone has heard of the perils of contentious probate; a disgruntled family member, perhaps even someone you have not had any contact with for several years, makes a claim against your estate following your death and effectively takes money from those you wanted to benefit.  

What we think about less is the circumstance where your wish to divide your estate unequally has nothing to do with a family fall out but instead is necessary due to the type of assets forming your estate.  The fact is that any unequal distribution of your estate on your death, regardless of the circumstances, is likely to be considered unfair by the beneficiary receiving less.  Putting in place a Will such as this can be the catalyst for a family dispute after you have died.

Following recent case law it is now even more important that a person making their Will sets out very clearly their reasons for either omitting to include someone from their Will or distributing their estate unequally between their children. 

The most straightforward way to protect your estate from claims of this type is to make your Will with a qualified solicitor.  A solicitor will not only listen to your plans for the distribution of your estate but will advise you about the obligations you have towards others, taking into account the type and value of the assets in your estate. This could take into consideration your business assets and your wish to leave your business to one child over and above your other children or ensuring you have in place a Will that enables your business and the income generated to be effectively divided equally between all of your children without having a damaging impact on that business.

Depending on your circumstances there are several options available when considering whether or not to omit someone from your Will.  This could include a carefully considered statement in the will itself making it clear to all who read it the reasons behind your decision.  You could leave a small gift to the person you wish to exclude dissuading them from making a claim, calculated with regard to the value of your estate and their likelihood of succeeding in a claim against your estate.  Finally it is also possible to place a clause in your Will stating that if a beneficiary receiving a gift under your Will makes a claim against your estate for additional funds, they will be forced to forfeit their original gift.

If you have estranged family members or high value complex assets which are difficult to divide equally, please get in touch and one of our experienced team members can assist you in protecting your estate and preparing a suitable Will. 

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