Author: Faye Harlow Smith. Solicitor, LLB (Hons)
Our private client department has a wealth of experience of making applications to the Probate Registry in unusual or tricky situations so if you are trying to deal with a complicated or difficult estate then you can be reassured that you are in safe hands with us.
In this blog, our new solicitor in the Private Client department, Faye Harlow Smith recalls some of the more unusual applications she has previously dealt with.
We can’t find the Will! How about a photo copy?
The Probate Registry requires the original Will to issue the Grant of Probate but I have dealt with multiple families where for one reason or another the original Will or a Codicil cannot be located. In many cases the family are able to find a photocopy of what they know to be their loved one’s last Will. An application can be made to prove a copy of the Will or Codicil.
The Probate Registry need to be sure that the Testator (the person who made the Will) did not deliberately destroy the previous Will in order to revoke it and that the Will has genuinely gone missing. We can assist with ensuring all reasonable searches have been made.
We also need to present to the Registry what would happen if the Will was not able to be used. In other words we need to explain what does the Testator’s previous Will provide or what would happen under the Intestacy rules.
This often involves some rather interesting detective work and on one previous estate led to me making an urgent application to the New Zealand family Court to see if a potential beneficiary had indeed been legally adopted or not.
Have you found the Will but there is a clause that doesn’t make sense or you think there is an error in the original Will?
When drafting Wills we strive to use language that is precise and clear so that the meaning of the terms of the Will cannot be disputed. This ensures that the Testator’s wishes are carried out.
However unfortunately we do come across Wills that have been prepared by unqualified draftsman where the wording does not always make sense. This can lead to cases where there is confusion over exactly who should inherit. In these cases we always try to seek agreement between the potential beneficiaries as the first course of action as this can save the estate costs and the family distress.
If an agreement cannot be reached then an application can be made to the Court to decide how the wording should be interpreted. In other cases, it can be clear that there was an error in the wording of the Will.
I have successfully applied to the Court to rectify a Will where the Will stated the estate should be split into 26 parts and then only allocated 13 of these parts to beneficiaries.
Do you need an urgent Grant of Probate as the deceased had sold their property before they died and now you are being pressured to complete the sale?
These cases can feel like a race against time but it can be done. It will all depend on the stage that the sale of the property has reached before the owner has died.
If the sale is still in the early stages then the application for the Grant of Probate can often run alongside the legal process of selling the property. Exchange of Contracts cannot take place until the Grant is received.
If the owner had exchanged contracts before their death then an urgent application can be made to the Probate Registry to allow the sale to go through.
I have previously dealt with these matters and am happy to confirm that I have not previously missed a completion date. I previously dealt with one where the deceased had granted an option to purchase the property to a large developer which was dependent on planning permission being granted. The planning permission was granted the day after the owner died so his Executors had to comply with the stringent time limits set by the developer to avoid any financial penalties for the estate.
Has the Executor appointed in the Will lost capacity?
If other Executors are appointed and are happy to act on the administration of the estate then the application for the Grant of Probate can be amended to show that one Executor is unable to act due to incapacity.
However, if they are the only Executor successfully appointed then we would need to look at other options for how the estate can be administered.
I have acted for attorneys who apply under a Lasting Power of Attorney to act on behalf of the Executor. I have also been instructed to apply to the Court of Protection for a deputy to be appointed so that they could administer the estate on behalf of the original Executor.
In some cases, family members will ask us to act as the attorney or deputy for the individual who has lost capacity and we are happy to do so as we can act quickly and independently. It is always worth considering if the Will also appoints the individual as a Trustee and whether they need to be removed as a Trustee in order for the Trust to be administered. We can help you navigate the Trust and the next steps that you need to take.
Was the deceased a court appointed deputy?
The appointment as deputy will of course end on their death but this can often mean that there is no one appointed to manage the vulnerable person’s affairs. I have experience of making new applications to the Court of Protection for a replacement deputy to appointed. We can also step in and act as the deputy if there is no one appropriate to deal with the role.
I have dealt with matters where the Court appointed deputy was the spouse of the vulnerable person and they owned their property jointly. On the death of the deputy the family needed a lot of support to ensure the vulnerable person was properly looked after and able to move into a suitable care home. In order to sell the property a new deputy appointment was needed quickly which included the right to sell the property.
Is there no Will and the children who should inherit are too young to deal with the application themselves?
In this case the law requires at least two adults to apply on behalf of the children to act as the Administrators of the Estate and then to hold the Estate on Trust for the children until they reach the age of 18.
I have worked on matters advising guardians applying on behalf of children, liaising with social services to ensure that the children’s interests are being protected. And in some instances, it is decided that the partners of this firm should act as Independent Administrators and Trustees.
It is very important that the Trustees keep full financial records and obtain good quality financial advice to ensure that the funds are managed correctly and in the best interests of the children. I have previously worked closely with Trustees assisting them in the initial application and then advising on the ongoing running of the trust up until the final distribution to the children.
Get in touch
If you need any assistance with an application to the Probate Registry or the administration of an estate then please do not hesitate to get in touch with our Private Client department on on 01323 727321 to arrange an appointment.
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Please note the above is for information purposes only and is intended to be a short summary. It should not be treated as a comprehensive guide and should not be acted on without qualified legal advice.