The death of a loved one is an emotional and traumatic experience, so thinking ahead about how to avoid possible probate disputes between your own beneficiaries is an important consideration when you come to draft your will.
Sadly, it is not uncommon for the administration of a loved-one’s estate to bring to light long-standing and deep-seated negative issues such as resentment, perceptions of unfairness, greed or a sense of entitlement. Such emotions can easily cause friction between your beneficiaries resulting in a full-blown probate dispute.
Probate disputes are costly and emotionally charged. To help you reduce the risks, we have put together a brief guide on how to avoid them.
Have a well-drafted will.
A well-drafted will is key. Firstly, it prevents any possibility of dying intestate. If you die without a will (ie ‘intestate,’) your entire estate passes according to set rules, including as to who inherits, what they get and how much they receive. Time and time again, these outcomes are not what the deceased wished for.
Secondly a proper will defines your property and assets. It gives clear direction to your executors and can prevent certain kinds of challenges altogether. For example, a precise description of a property you want to give away will rule out future challenges about what you intended, whereas a vague description (for example “I give my daughter my property known as Badger’s Mount”) might be taken to mean the house of that name or it might be taken to include an adjoining two-acre paddock. Poor drafting like this often results in fiercely contested proceedings to resolve what you actually intended at the time you made your will.
Observe the formalities.
It is essential to observe the formalities of will-making. They are surprisingly old-fashioned and include precise rules on who can be a witness, the number of witnesses required, the sequence of witnessing signatures and how the will is signed. Failing to comply with these formalities can invalidate your will altogether.
Keep your will under review.
Keep your will under review as you go through life. Key events such as marriage, children and divorce should prompt an immediate review, not only to make sure that things are still as you want them, but also because they can have a fundamental impact on your will. For example, marriage automatically revokes any existing will.
Other material changes in life such as the death of an intended beneficiary or executor, buying a house, land, property, business or other major assets should also trigger review of your will.
Choose your executors carefully
Think carefully about your executors. They need to be capable of handling the responsibilities of managing your estate efficiently and impartially. Good (or professional) executors may also be able to nip potential probate disputes in the bud without overstepping their obligations and duty of impartiality.
Keep records of your financial assets (ISAs, bank accounts, shares, pensions etc) and other important documents. Ideally, your executors should be able to lay their hands on this information as soon as possible after your death. That will help them distribute your estate more efficiently and reduce scope for complaints about delay. It will also enable them to take immediate steps to protect your assets from ‘disappearing.’ Sadly, appalling as it may sound, it is not uncommon for a carer or family member to ‘help themselves’ to your credit and debit cards before the bank is notified of your death.
Keep your will safe.
Again, it is not unknown for one executor to take control of your will and use it as a bartering chip, or even try to take out a grant of probate without reference to others.
In other cases, a dishonest beneficiary might ‘loose’ or destroy your final will, especially if they can lay their hands on an earlier version or would ‘do better’ by you dying supposedly intestate.
It is highly advisable to lodge your will in a solicitors’ strong room or some other equally safe location to which your executors can have access. Many reputable private client solicitors’ firms make no charge for storing wills which they have drafted, and Hibberts are no exception.
It is not advisable to list too many gifts of items such as china, jewellery, pieces of furniture and so on. With time they can be lost, broken or sold. If you do intend to leave specific items, be sure to define them precisely so there can be no subsequent probate disputes about precisely which ring or watch, you meant to bequeath – especially where you have a number of similar items.
Burial or cremation.
Disputes frequently occur between family members about the burial or cremation of remains. Strictly, it is the executors who have the last word on this matter, but it is very sensible to state clearly in your will how and where you wish your remains to be disposed of. This makes it much easier for your executors to give effect to your wishes even if family members object.
Inheritance Act claims
The Inheritance (Provision for Family and Dependents) Act 1975 gives certain people the right to make a claim against your estate. These include spouses, children, adult children, civil partners, people you were financially maintaining before death and couples living together as husband and wife for two years before death.
Claims brought by such claimants are for ‘reasonable provision’ from your estate and are ultimately determined by the Court, but if you are concerned (for example if in your will you favour one child substantially over another) it is sensible to leave a letter explaining why you made little or no provision for them in your will. It might be that you were estranged, or that one child had particular financial need compared to the other. An experienced probate solicitor would be happy to talk this through with you and advise you as part of the will making process.
Wills are amongst the cheapest legal services you can buy, and for many good solicitors firms, are a financial loss leader. Indeed, an experienced probate solicitor will take time to advise you, accurately record your intentions and identify possible issues. They will draft your will in clear and concise terms. Taken as a whole, engaging a reputable firm of solicitors to draft your will is both reassuring and in virtually every case, money well spent.