Probate Myth Busting

Martha Nickolls and Ralph Wheeler are Senior Associates in the Private Client team.  

Ralph specialises in contentious trust and probate matters, helping when arguments and disputes arise.  

Martha’s expertise lies in administering estates of all sizes and complexity, including those that are taxable, high net worth, with agricultural/business assets and international assets or interests.  

In this article, the Poundbury-based Probate team set out to bust some of the urban myths surrounding probate and estate administration and separate fact from fiction.  

The two certainties in life (death and taxes) are unavoidable. However, most people (except perhaps some incredibly unlucky individuals) do not often have to deal with administering an estate when someone dies. As a result, misinformation abounds about the process and what is involved.  

In this article, we hope to debunk five of the myths commonly seen in estate administration:  

1. A Will means there will be no arguments 

Having a well-drafted Will is a brilliant first step to reduce risk and arguments. However, nothing will ever eliminate every argument or potential claim.  

Claims can still arise where questions need to be asked about someone’s mental capacity, undue influence (for example, where significant changes have been made to a Will which benefits one person) or where family members have been left out and treated unfairly. Even the simplest Will cannot stop someone making a claim.  

However, a professionally drafted Will (along with records of the conversations the person had about it) can help provide evidence to assist with or mitigate arguments.  

2. Probate is always needed 

This is not the case. For example, where property is owned as “joint tenants”, it will pass to the surviving owner with no need for a Grant of Probate. If someone dies and only has jointly owned assets held this way, no Probate will be needed.  

A Grant of Probate (or “Grant of Letters of Administration” if there is no Will) confirms who is legally responsible for administering an estate. Where property does not pass automatically “by survivorship”, a Grant may be required to transfer the property to whoever is inheriting it. If you’re not sure how you hold your property, please ask us!  

3. Common-law Partners have automatic inheritance rights 

Under English and Welsh law, there is no such thing as a “common law” spouse. Similarly, where legal matters are concerned, there is no such thing as “next of kin”.  

Without a Will, unmarried partners will not automatically inherit a share of their partner’s estate. The best way to ensure your partner inherits your estate and is looked after, is to write a Will.  

4. If there is no Will, a spouse automatically inherits everything  

If everything is owned as joint tenants (see above), then this could be the case. If not, then the estate is distributed according to the rules of intestacy (ie what happens when someone dies without a Will).  

If there are no children, then everything will go to the surviving spouse.  

If there are children (adopted or natural children only – stepchildren are not included in the intestacy rules), the surviving spouse will inherit the estate (including property) up to the value of £322,000. Of the remaining estate, half will pass to any surviving children (at 18) and the other half to the surviving spouse.  

5. Executors can do what they like 

An Executor is legally responsible for ensuring the estate administration is carried out correctly. From a simplistic perspective, this includes establishing the value of the estate (all the assets and debts that the deceased person owned when they died), paying any inheritance tax due, gathering the assets in, selling what needs to be sold, paying any other relevant taxes (income tax and capital gains tax) and distributing the balance to the correct beneficiaries.  

However, the powers of an executor are not unlimited and so estate administration in reality is not so straightforward.   

An executor carries a personal legal responsibility. For example, if assets are sold at an undervalue or without proper authority, or distributed without properly discharging debts and liabilities, an executor may have to account for this out of their own finances.  

Courts take a very dim view of Executors not fulfilling their duties correctly. Fines, court orders and prison sentences have all been used to rectify situations where Executors have mismanaged an estate administration.   

How can we help

Whether you are an executor, a beneficiary or want to speak to us about an estate where you may want to make a claim, Porter Dodson can help guide you through the whole process and can answer any questions you have. Please get in touch with either Ralph or Martha to see how we can help you.