CONTENTIOUS PROBATE

Separating fact from fiction: common myths in Contentious Probate

There are many myths surrounding the administration of an estate following the death of a loved one. Our expert Contentious Probate team aim to bust those myths and ensure you know all the facts to avoid unnecessary conflict.

 

  1. My ‘next of kin’ will deal with my estate when I die

When someone dies, their “next of kin” has no real legal standing in relation to probate. The term does not grant any legal authority to manage someone’s estate; that responsibility lies with the appointed Executor or Administrator only.

 

  1. “Common law man and wife”

In English law, cohabitation does not establish marital-like status, regardless of the duration you’ve lived together. Consequently, if one of you dies without a Will, intestacy laws will apply, and you may not inherit anything from the deceased’s estate. Although, you may qualify to make a claim against the estate.

 

  1. I wrote a letter of wishes, so I don’t need a Will

A letter of wishes is a document created to supplement your Will. Unlike your Will, a letter of wishes is not legally binding; rather, it offers guidance to those handling your estate. A Will sets out the binding terms of how your estate should be administered.

 

  1. If someone dies without a Will, everything goes to the Crown

In the UK, when someone dies without a Will, their estate is distributed according to the intestacy rules. Under these rules, their estate would be divided among surviving relatives, such as a spouse or children. If no relatives exist, then the estate passes to the Crown.

 

  1. When someone dies, their debts die with them

When someone dies, their debts become the responsibility of their estate. The designated Executor or Administrator must settle any outstanding debts using assets of the estate before distributing to the beneficiaries.

 

  1. Nothing can revoke a Will once it has been made

  1. marriage or civil partnership, automatically revokes a Will;
  2. making a new Will or Codicil, a clause should be inserted revoking any previous Wills; or
  3. by destruction (tear, burn, deface, obliterate, or destroy).

 

  1. A Lasting Power of Attorney (“LPA”) is not necessary until someone has lost capacity

A registered LPA can be used while the donor still has capacity, unless it specifies that it cannot. A donor must be 18 or over and have capacity to make an LPA.

 

  1. Executors cannot also be beneficiaries

It is very common for an executor to also be a beneficiary. The only people who cannot be beneficiaries are those who witnessed the signing of the Will by the testator.

About the authors


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Jenny Ray

Partner

Specialist in assisting clients in resolving disputes about wills, estates and trusts.
about the author img

Cathryn Culverhouse

Partner

Expert in a wide range of complex contentious probate disputes including 1975 Act claims, validity disputes and undue influence claims.
about the author img

Izzy Fitzgerald

Paralegal

Assists with a range of matters, focusing on contentious probate, including 1975 Act claims, executor and trustee disputes and validity claims.

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