Private Client Newsletter – August 2016

Welcome to our latest departmental newsletter.  The focus this month is on our Private Client team.

 

DeBrieF Q&A

Holly Rogalski – trainee solicitor in our Private Client department – answers some of the most commonly asked questions when someone dies without making a Will.

 

How can you be sure that the deceased did not make a Will?

As there is no requirement for a Will to be registered or stored at a central registry, a person can choose to store their Will in a number of different places before they die.  Sometimes it can be difficult to locate the Will but there is a responsibility on executors and administrators of an estate to carry out a reasonable search.

The first thing to do is to undertake a thorough search of the deceased’s home. If a Will cannot be located at their home, it is possible that the deceased chose to store their Will with a firm of solicitors or with their bank. You can contact the deceased’s solicitor or firms of solicitors which are near to the deceased’s home and ask if they are holding the deceased’s Will. You could also contact the District Probate Registry nearest to the deceased’s home and the Principal Probate Registry in London to check whether they hold the Will. It is also possible to make an application to search the registries’ national register of wills.

What happens if there is no Will?

When a person dies without leaving a valid Will they are described as dying intestate and their estate will be administered in accordance with the intestacy rules.

 

What are the intestacy rules?

These are a fixed set of rules that dictate who will inherit your estate if you die without a Will. Application of the rules could lead to a division of your estate that would not be in accordance with your wishes.

One example of this is that, whilst the rules make provision for spouses or civil partners, no provision is made for unmarried partners, therefore, if you would like your boyfriend or girlfriend to inherit your estate you need to make a Will.

Please be aware that the rules only apply to assets that you could have left by Will. The rules do not apply to any joint assets such as a joint bank account or a house where ownership is held in a certain way as these will pass by survivorship to the surviving owner or account holder.

 

The following examples demonstrate how the intestacy rules would apply in various situations. The rules were amended in October 2014 and the updated rules are applied in each of the following examples:

 

– A person dies without a valid Will leaving a spouse or civil partner and no children

The surviving spouse or civil partner will inherit everything.

 

– A person dies without a valid Will leaving a spouse or civil partner and children

The surviving spouse or civil partner will receive all of the deceased’s personal possessions, the first £250,000 of the deceased’s estate and half of the rest of their estate. The other half will be held on trust for the deceased’s children until they reach the age of 18 or before 18 if they marry or enter into a civil partnership.

The law on intestacy treats all children equally, so children from all relationships and adopted children can inherit under the intestacy rules. Step children cannot inherit under the intestacy rules unless formally adopted.

– A person dies without a valid Will leaving no surviving spouse, civil partner and no children

In this case, the estate will be distributed to the deceased’s surviving relatives in accordance with the order prescribed by the intestacy rules. The order is as follows:

  1. Grandchildren would inherit in the place of their parent who had died.
  2. Parents (equally if both alive).
  3. Brothers and sisters (their children will inherit in their place if they have already died).
  4. Half-brothers and half-sisters (their children will inherit in their place if they have already died).
  5. Grandparents (equally if both alive).
  6. Aunties and uncles (their children will inherit in their place if they have already died).
  7. Half-aunties and half-uncles (their children will inherit in their place if they have already died).
  8. If the deceased had no surviving blood relatives their estate would pass to the Crown, the Duchy of Lancaster or the Duke of Cornwall.

Members of a lower category will only inherit if there are no surviving members in the preceding category. If there are several people in a category then they will share the estate equally between them.

In this example, where there is no surviving spouse or children, if the deceased did not have any grandchildren, then their estate would pass to their parents equally. If neither of their parents are alive then their estate would pass to their brothers and sisters equally. The deceased’s nieces and nephews will inherit in the place of any brothers and sisters that have already died.

 

Who would make all of the arrangements?

When an individual dies without a Will, an administrator or administrators will be appointed to deal with the deceased’s estate. The people who are entitled to act as administrators mirror the categories of relatives that are entitled to inherit under the intestacy rules. In order to apply to be an administrator you must be entitled to inherit under the intestacy rules.

If you would like advice about making a Will, please contact our Private Client department on 0161 832 3304. More details about our Wills, Trusts & Probate services can be found here.

 

DeBrieF TEAM SPOTLIGHT: Holly Rogalski, trainee solicitor…

 

What does your role at Davis Blank Furniss involve?

I have recently joined the Private Client department as a trainee solicitor. I work with the other members of the team to prepare Wills, Lasting Powers of Attorney and assisting with the administration of estates.

 

What is the best thing about your job?

I enjoy the variety of work that I do and meeting new clients. I also enjoy working with the other members of the Private Client team and learning from them.

 

In this department, we often deal with clients who are in a difficult situation due to a bereavement or because a loved one is ill.  For example, someone might contact us because one of their loved ones is no longer able to manage their own affairs due to illness. In difficult situations such as this, it is gratifying to know that we can ensure that our clients have one less thing to worry about.

 

Name the person who has had the biggest influence in your career?

My parents have been the biggest influence in my career. They have encouraged me to work hard to achieve my goals.

 

If you were not a lawyer, what would you be doing?

Having previously worked for the leading children’s legal charity, I would probably be working in a policy or project management role; however, my experience in that sector has firmly anchored my passion for putting legal principle and policy into practice.

 

DeBrieF RECENT CASE

 

Charlotte Lowe – solicitor in our Commercial Litigation department – discusses a recent case about a challenge to a Will.

 

Creating a Will enables you to look to leave your assets to whoever you choose and provides a level of comfort and certainty for after you are gone. This is why most of us write a Will. However, it is important to recognise that sometimes Wills can be challenged and overturned.

Not everyone can challenge a Will, as in order to do so, you must prove yourself an ‘interested person’. Not surprisingly, you see Wills challenged by the likes of spouses, children and heirs.  Recently, in the case of Randall -v- Randall, the Court of Appeal was asked to consider whether Mr Randall could challenge the Will of his ex-wife’s mother.

The basic facts of the case are simple. In the divorce settlement between Mr Randall and his ex-wife, it was agreed that if his ex-wife should inherit more than £100,000 from her mother then she would keep £100,000 and the balance would be split equally between them. The mother died and a Will was produced that provided that the ex-wife was to receive exactly £100,000 and that the balance of the estate (of around £150,000) was left to Mrs Randall’s children.  Mr Randall issued legal proceedings seeking to challenge the validity of the Will on the basis that his ex-wife’s mother had not “…intended her signature to give effect to the alleged will”.  His ex-wife claimed he was not entitled to make such a claim, on the basis that he would not be considered an ‘interested person’.  If Mr Randall succeeds then he will be entitled to an estimated £75,000.

The Court decided to consider as a preliminary issue if Mr Randall was an ‘interested person’ who could make such a claim. In the High Court, he lost. On appeal, the Court of Appeal held that he did have an interest in the estate for the purposes of contesting the validity of the Will. Indeed, it found that ‘justice’ required Mr Randall to be able to make a claim. The Court will now need to decide if the Will was valid or not.

The case shows that the Court may be prepared to consider claims as to the validity of Wills from a wide range of potentially interested persons.

If you would like to discuss the possibility of challenging a Will, then please get in touch with Charlotte Lowe on 0161 832 3304.

Contact Us

If you have any queries or require any further information, please do not hesitate to contact our team of specialist solicitors on 0161 832 3304.

 

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