Estate, Planning and Administration Lawyers

We have a large estate administration practice and our team can look after your estate. When somebody dies, the paperwork involved in proving their will and in sorting out their property can be daunting to the family. Webb Ross has always taken pride in its efficient administration of estates.

What steps have to be taken?
When someone dies the following steps have to be taken:
1 The last will has to be found.
2 The people named in the will as trustees or executors apply to the High Court for a Probate order confirming the will and giving them authority to deal with assets.
3 If there is no will then someone has to apply to the High Court for a grant of Letters of Administration giving them authority to deal with the deceased’s assets.
4 The executors (if there is a will) or the administrators (if there is no will) then, using the probate document or the letters of administration document, have to transfer the assets in accordance with the will.

What is the difference between executors and trustees?
Wills usually appoint one or more people as “executors and trustees”. This involves two responsibilities. First as executors those people must locate the will, arrange the funeral and ensure the instructions in the will for the distribution of the estate are carried out. If the will requires any estate assets to be held in trust, then the second responsibility is as trustees. This situation could arise where a person has died leaving assets to young children or leaving a life interest to someone. The assets must be looked after until the children reach 20 years of age, (in some cases for longer) and in the case of life interests, sometimes for many years.

What if a will is challenged or is inappropriate?
Sometimes a will is challenged. When this happens, the person challenging the will cannot take legal advice from anyone at Webb Ross. If we are administering the estate we continue to act for the executors and trustees who must remain neutral. Each of the beneficiaries must get separate legal advice. Sometimes, the terms of the will may not be appropriate because of changes in circumstances after it was made or because of something the testator may have overlooked. The beneficiaries may just believe that the terms of the will are not appropriate. In these situations the beneficiaries can agree to alter the terms of the will. Their agreement is recorded in writing. Anyone who is a possible beneficiary under the will must sign the agreement after taking independent legal advice. When a will is challenged or when it is being changed by agreement, any beneficiaries who are under twenty are represented by their legal guardian.

What about mediation?
Webb Ross offers a mediation service. If all parties agree, Stuart Spicer, a partner in the firm may be able to act as mediator if there is a dispute about a will. Mediation is less expensive and quicker than Court action. A successful mediation will result in agreement which is recorded in writing.

Who is entitled to make a claim against an estate?
The Family Protection Act 1955 provides that a deceased person’s spouse and/or children are entitled to make a claim if they believe they have not been provided for adequately. If any of the deceased’s children have died leaving children of their own then those grandchildren are also entitled to make a claim. An executor or trustee must make reasonable enquiries to make sure all potential claimants are known. Those enquiries may involve making a search of records at Births Deaths and Marriages to check the deceased’s marital status and/or to check for children of the deceased. In addition, some persons can make claims under various other statutes and laws.

Timing of payment to beneficiaries
Claims can be made against an estate up to one year (and in some cases even longer) after the date of grant of probate or letters of administration. If trustees distribute assets in the six month period after that date, they may be personally liable for those assets if a successful claim is made. It is a good idea to wait for the six month period to expire (and where a claim is a real possibility we will suggest waiting twelve months), before the estate is distributed. Early distributions are possible but in those cases, if the trustees and beneficiaries indemnify the firm against later claims, and in turn the beneficiaries indemnify the trustees. The beneficiaries will need to take their own legal advice about the indemnities.