What happens to my digital assets when I die?

Leaving traditional assets to family in a will is clear enough, but what about the music, photos, social media and apps you own online?

It’s normal for somebody to consider the more traditional aspects of assets when creating a will, but what about the latest generation of assets – your digital assets, such as purchased music, games, apps and money making social media accounts or website?

When you sign up for an online account of any kind, post a photo on a social media account or download a music album you probably don’t give any consideration to the fact that you are creating digital assets. And, understandably it’s likely that you don’t give any thought to how they will be dealt with after your death.

The world is becoming increasingly digital. There are around 4.66 billion active internet users worldwide. That’s 59.5% of the global population. 4.2 billion of us are active social media users. We’ve signed up for an account on Facebook, Instagram, Twitter or another platform agreeing to the terms and conditions as we did so. You may even have read the user agreement in full and requested that it be emailed to you. Likely the last thing on your mind as you requested access to the software is what would happen to the content you created when you are no longer here.

What is a digital asset?

In the last few decades, physical items such as photo albums, bank statements, record collections and letters have been increasingly replaced by their digital counterparts. So instead of tangible items, we have emails, online banking, audio streaming and cloud photo storage.

digital music assetsThese can be considered your digital assets although the examples above are only a small representation of the different types. Now you might expect that you would be able to pass these digital assets on to your loved ones in your Will. After all, you’d be able to do this with the physical versions. However, this is where things differ when it comes to digital assets.

From a legal viewpoint, things are a bit interesting! English law agrees that the copyright relating to emails, photographs and other content belongs to the creator. So the individual, deceased or otherwise, who took the photo or typed the words is the owner. However, it has no specific definition of digital assets.

The difficulties of digital assets in relation to English Law is something the Law Commission are well aware of. They are currently looking at issues around crypto and digital assets and how current legislation can be reformed to accommodate possession of ‘intangible’ assets. But it’s a slow process. Their recommendations are not due until 2022 and will still require implementation by the government.

Furthermore, accommodation in English law would only be a starting point. Digital assets are likely to be a multi-jurisdiction issue.  For example, the platform may be owned by a company registered in one country with servers and data in another while the actual user resides in a third location. Each location is subject to the laws of its own country. Additionally, local laws may apply as they do in individual states in the USA.

Even public opinion itself is divided on what should happen to online accounts and devices after death. Some favour wholesale deletion while others see their online activity as a legacy that can be passed on or used as a memorial.

The value of a digital legacy

The Executor of a Will is responsible for dividing up the possessions of an individual according to their final wishes. When it comes to looking at a digital legacy their starting point is clear. Firstly, they need to identify the assets associated with the individual’s digital footprint. Then they need to consider which assets have a monetary value and which, while of sentimental and emotional value, do not.

what is a digital legacy?This will be easier in some cases than in others. Investment accounts, bank accounts and cryptocurrencies are clearly among those which have a monetary value. But the content of websites, online profiles and social media accounts shouldn’t be dismissed as being necessarily worthless.

The key lies in who these belong to and how they have been used. Within the realm of the online, the use of platforms are many and varied. This means that the value of social media profiles, newsletters, e-courses, e-books, websites, blogs and online content can vary considerably. This may prove to be a challenge for valuation in order for Probate to be granted.

The most obvious digital activity with a monetary value might be the various accounts associated with a business. So, for example, a shop might have a website and various social media accounts. The website could include an online shop, a blog telling customers about new products and various videos demonstrating how to make best use of their wares. These things make up part of the value of the business. In order for the business to remain viable they will need to continue to be updated. Without the relevant passwords, user names and access codes business continuity will be interrupted and this may damage the value of the business. This raises questions of transferability to either business partners or a new owner. It’s a good reason for companies to ensure that access to systems is not dependent on a single individual!

Another area where online profiles have a value is for social media influencers. This group make income by sharing content about their daily lives with their followers. Their posts are usually sponsored or have affiliate links.

How much value their accounts would retain is questionable. It may depend on how much they have been able to diversify their content. Likely those who had created online courses, books or products as part of their offering would be in the best position to continue to provide an income stream to their heirs. In many ways they would not be in a dissimilar position to the sale business referred to above.

Another variation of the new opportunities for an online career are gamers streaming their play to subscribers. Income is made from membership, sponsorship or adverts.

Licensing and ownership

The next complication for the executor is whether the deceased had ownership of their online assets or was simply licensing them. Leaving a book or music collection to a friend who shares your interests would not be an unusual request in a Will. Assuming that the items in questions existed in physical form. If they are digital then some investigation will be required.

The key issue is around what the contract, user agreement or terms and conditions stated and what provisions they made for such contingencies.  For many popular services what you are paying for is a right to access rather than ownership which means you won’t be able to pass it on.

There is also the matter of access to the content. One can see the reluctance of a platform or service providers to release personal information and also the frustration of relatives who simply want to keep family photographs and emails. Generally, data protection legislation, which is intended to keep these details safe, only applies to living individuals. If you have the passwords or access codes, the idea of logging in to access the content would be tempting. But even if you are authorised as Executor, it would not be advisable to do. This action may cause you to fall foul of the Computer Misuse Act 1990.

Deleting online accounts

Closure of accounts can also be troublesome. There are good reasons for removing accounts. It can be upsetting to receive reminders from the platform about the deceased for something like a birthday. But fraud is also an issue.

social media account ownership probateClosing down an eBay or Amazon account may seem an irrelevancy but left open the account could potentially be used without permission. Many people have card or other payment details stored on their account.

Privacy is also a concern. You may have digital content such as personal emails that you would prefer to be destroyed in event of your death rather than floating around cyberspace indefinitely and causing potential embarrassment for family.

However, social media platforms are often difficult to contact and information about closing accounts, while available, is likely to be buried within their site. There are some exceptions. Facebook allows for the appointment of a ‘legacy contact’ and for you to choose whether you want your account to be deleted or memorialised after death. Twitter does not offer memorialisation but will allow for an account to be deleted if authorised by the Executor or an immediate family member.   Google has introduced an Inactive account manager tool.

Planning your digital legacy

Digital assets may be held in varying parts of the world and therefore subject to individual platform agreements and local data protection laws. The asset value may vary considerably.  Content may not actually be the property of the deceased and where it is, there could be access problems. Consequently, estate planning for your digital assets is something you should be thinking about today. Action now will make things much easier for your loved ones, and your Executor in the future. Here are a few steps you can take now.

Make an appointment with your solicitor

There’s no doubt that the best person to discuss your digital legacy with is a legal professional. At Foys Solicitors we’ve supported many people through the process of will preparation and estate planning and each outcome has been as unique as the person themselves. While banks and insurance companies are beginning to offer tools to support digital estate planning, these are no replacement for experience. An experienced professional can tailor the right approach for you and your dependents.

List your digital assets

Start your planning by making a list. Your assets can’t be acted on if your Executor doesn’t know they exist. While they can make an inventory of a property for valuation purposes, what you hold online is less obvious than physical possessions. You might be surprised by the number of accounts that your email address is linked to.

The Digital Legacy Association has some useful resources to assist with this inventory. You should ensure that you include the following:

  • Email accounts
  • Social media accounts
  • Online media  – both storage and streaming or download services
  • Websites and blogs
  • Online shopping accounts
  • Financial sites including bank and investment accounts
  • Accounts related to your business

If accounts are shared, such as email address or bank account note this.

Review your list

Consider the assets on the list and how you would like them to be dealt with. If you have particular actions that you would like taken for an asset then check the terms and conditions for the platform or service to see if it will be possible.

Decide whether you want social media accounts to deleted and consider removing any online accounts that you no longer use or need. For local authority services or others like HMRC, the ‘Tell Us Once’ service allows most government organisations to be informed of a death without the need to contact them individually.

Keep the information up to date

Review your digital assets list regularly.  Add new accounts or assets to the list as you open them and ensure that the actions you wish to be taken for each remain current.

Speak to Foys about planning your digital legacy

Our team of legal experts are here to help you ensure that wishes are carried out when you are no longer here. We’re able to work with you on all aspects of estate planning from Will to Trust to Lasting Power of Attorney.

We offer a free initial consultation so that we can assess your needs and proceed in a way that will support your needs and provide the best solution for you and your family.

For a free initial consultation or more information on planning your digital legacy, give us a call on 01909 500511. You can also email us at enquiries@foys.co.uk or complete our Contact Form.

Will & estates during lockdown

Will writing during lockdown – what you should know

Will writing during lockdown – what you should know

During times of fear, worry and existential crises, it’s not surprising to see a rise in people enquiring about wills. However, the COVID-19 pandemic isn’t just something that affects a small group of people; it affects everyone.

Because of this, the number of people enquiring about wills has increased quite dramatically over the past year. It’s not just people in vulnerable categories or who have taken an ill turn that have been enquiring; frontline workers who are not in vulnerable categories have found themselves considering their mortality due to being in proximity to so many different people. Healthcare professionals have been particularly keen to sort out wills as a precaution due to being in proximity to high viral loads as a result of tending to COVID-19 sufferers.

importance of will during lockdown One poll found that there was a whopping 70% increase in demand for will execution in March 2020 compared to the fourth quarter of 2019. As well as dealing with the increased interest, providers of will-writing services have faced unforeseen challenges – especially in regards to legality.

In this article, we’re going to talk you through what you need to know about wills during the pandemic and how the current restrictions are likely to affect the execution of your will.

The legality of wills during lockdown

To understand why will-writing is such a problem during a time of social distancing, we need to look at the law surrounding wills. In order to be legal, wills in England and Wales must meet the criteria first set out under the Wills Act 1837, section 9. This sets out that a will must be submitted in writing (handwritten or print/typed) and the testatrix/testator (the person who has made a will/legacy), or a directed legal representative of the testatrix/testator’s choosing, must sign it.

However, things get more complicated when you consider the legal need for there to be at least two independent witnesses present to witness this signature. The will must then either be attested and signed by the witnesses or, at the very least, acknowledged while the testatrix/testator is in the same room or within sight of the will being signed. This means that the signatory and the witnesses can, technically, be in a separate rooms or can observe through a window.

As you can see, this poses quite the challenge during social distancing restrictions and even more so if the person is in hospital where there are heavy restrictions on the visitors who can be present. Even if it isn’t in the hospital, arrangements must be made to ensure that there are at least 2 meters distance between every person present.

Other further considerations to keep in mind is that these witnesses must be independent. By that we mean that they will not benefit from the will. With restrictions on the mixing of households, this creates a difficult situation. The 2 metre rule also poses problems if one of the intended witnesses is partially sighted as they may not be able to legally claim that they witnessed the signature.

Adjustments to the law under lockdown

In September 2020, the UK Government made a historic move to put in place legislation in England and Wales that allows for a will to be witnessed via video link. This was the first time in almost 200 years that the law surrounding wills had been adjusted. However, the preference is still for a witness to be in-person and such a set-up should only be used in the event that there is no other alternative.

This change was also backdated to 31 January 2020 to ensure that any will that was witnessed via video link under the duration of the pandemic will be acknowledged as legal. It should be noted that this is a temporary step that will last until the end of January 2022 or beyond, if necessary.

It’s important to note that the witness must still physically see the will – ideally on the same day – and then both witnesses must sign the will while on video link. For the sake of any possible future legal headaches, it may be a good idea to record this whole process.

From July 2020, HM Land Registry started accepting electronic signatures so as to allow for the speedier transfer of property (including mortgages, leases, etc.). However, there are also provisions in that the deed must still be written, there has to be a witness present to observe the deed being signed, and it must go through an approved electronic signature provider/platform (e.g. InfoTrack’s SignIT).

Can you create a DIY will?

It is understandable that with the lockdown in place that many are looking to circumvent any unnecessary human contact and putting together your own will is one way to do this. There is nothing in the law that says you can’t create your own will as the process is not regulated; however, be aware that this route can be fraught with problems should the document be found to have errors.

It is not uncommon to hear stories of people ending up in limbo over an estate due to the will not being properly drafted and, in a number of cases, these wills are found to be invalid. One survey found that approximately 40,000 families per year are left waiting for an estate to be processed due to DIY wills that have not been drafted correctly.

The most common mistakes tend to be related to signatures, failing to get the witness process correct and incorrect names. Witnesses are a common problem as the word ‘independent’ can be misconstrued. Not only can the witness not be a beneficiary of the will, they also cannot be a member of your family, they cannot be an immediate relation to a beneficiary (e.g. spouse, civil partner), they cannot be partially sighted or blind and they must possesses the mental capacity to have understood what they witnessed.

There are also other stipulations that need to be taken into account when it comes to a DIY will. For example, if you get married after writing your will, this will void your DIY will unless you included provisions for marriage.

This additional paperwork resulting from a poorly crafted will can end up just swallowing more money and sorting out these problems can end up costing far more money than paying the relatively small fee for even just a basic, professionally drafted will. These fees can tally up to 10% (and even beyond) of your estate’s total worth. This could lead to tens of thousands of pounds being unnecessarily wasted; as well as precious time. The worst case scenario is that your family might end up in a court case which will swallow up even more funds. As such, DIY wills have the potential to severely hinder – not help – your family.

If you’re thinking of writing a DIY will to minimise your interactions with people, it is important to weigh the above scenarios before you make your choice on how you want your will to be constructed.

Foys takes your will and COVID-19 seriously

At Foys, we know that there is a real worry amongst people seeking will services during the lockdown due to concerns surrounding the safety of such a process. We take the situation very seriously and we pledge to do everything we can to ensure that the process is as safe and secure as it can be.

We offer contactless appointments via Skype. If that isn’t possible, we can attend your property to take instructions without even entering the property. Due to adjustments put in place, we can even offer detailed instructions on how to properly gather your independent witnesses and perform this process correctly without our presence. If it’s not possible for you to have two witnesses, we are happy to attend and act as your witnesses at a safe distance. We also specialise in probates, trusts, lasting power of attorney, letters of administration and other related services.

When we say that you’re safe in our hands, we truly mean it.

If you’d like to learn more about our will-drafting services, simply get in touch using our online Contact Form or by giving your local Foys office a call today:

Retford: 01777 703 100
Worksop: 01909 500 511
Doncaster: 01302 327 136
Clowne: 01777 703 100 (Temporary Number)
Rotherham: 01709 375 561
Sheffield (Waterthorpe): 0114 251 1702
Sheffield (Chapeltown): 0114 246 7609

Key and torn paper with text probate on wooden background

What does it mean to have a house in probate?

What does it mean to have a house in probate?

Start talking about Wills and you’re into the stuff of murder mysteries and legal thrillers. However, the truth is not nearly as glamorous and has far more paperwork.

When someone dies then their estate needs to be deal with. This means that their possessions from larger things like houses to smaller, more personal items will go to others. The legal process that allows this to happen is called probate.

Can probate be granted without a will?

Probate has to be applied for in the vast majority of cases, even if there is no will. Where the will does make a difference is around who will be responsible for valuing the estate and then carrying out the work of probate including selling property and dispersing the estate.

If there is a Will in place then the executors, the person or persons named to carry out the wishes of the deceased, will apply for probate or ask a solicitor to do so on their behalf.

However if the deceased had not made a will then probate regulations still apply. In this situation, their spouse, civil partner or children can become administrators of their estate and apply for probate.

There may be some incidences where probate is not required. For example, if the estate consists entirely of assets the deceased owned jointly with a spouse or civil partner, such as a house. Or if the estate is extremely small, less then £10,000, then probate may not be necessary. But bear in mind that banks and financial institutions will not release assets without proof that probate has been granted, and an estate of this size is unlikely to include property.

Do you have to pay taxes if you inherit a house?

No one is going to think that an inheritance sounds like a bad thing. You’re more likely to think kindly towards the deceased and make plans to enjoy what they have left you. But this might be less than you expect. Part of applying for probate includes assessing if the estate is at the threshold for inheritance tax. And if it is paying at least part of it to HMRC before probate is granted. As an executor or administrator, you can use any money the deceased held in a bank account to pay this or pay it yourself and claim it back at a later point.

Pay Inheritance Tax

The threshold Inheritance Tax is currently set at £325,000 with 40% paid on anything over this figure. This might sound like a huge amount until you take into account any property included in the estate. The average selling price for a detached house in Yorkshire is £272,754, according to Land Registry data, which is good way towards the threshold.

Recent reports also show that Yorkshire has the highest percentage rise in house asking prices in the country. At 8.1%, it even beats London who has seen more conservative rises. While a rise in price sounds good it’s worrying news for beneficiaries of Wills on two levels. There’s the Inheritance Tax issues raised above. But there’s also Capital Gains Tax to consider. A house that increases in price is subject to this upon sale. And if a house increases in value between the owner passing on and the property being sold then Capital Gains Tax will be applied. This will further reduce the amount of inheritance available.

And, of course, any income you acquire from the house after inheriting it, such as rental money, will have to be declared and Income Tax paid as appropriate.

And while it’s not a tax if you inherit a jointly owned property with a mortgage you’ll be liable for the mortgage payments.

What would happen if I died without a Will?

A popular idea is that the contents of a Will are top secret and will only be revealed at a reading thus causing maximum shock amongst those gathered. It’s actually a good idea to talk to your loved ones about your Will and the provisions you are making. This allows your executors to be clear about your wishes and how you want them to be carried out. It also allows them to understand the responsibility they are taking on and how the various processes work.

If you haven’t made a Will it might be because you think that you don’t need to. For example, you believe that your partner or children will automatically inherit your house. Or because you made one ages ago and didn’t see any need to update it. However, be aware that getting married or remarried invalidates a Will. And that partners do not stand to inherit unless the relationship has been formalised. It’s things like this that make it clear that getting advice from an expert like a solicitor does make a difference when it comes to legal matters. Estate planning is something everyone needs to consider whether you’re making a simple Will or looking at creating a trust. It will make life easier for your loved ones at a difficult time and is straight forward to do with our expert help.

Do you need to use a solicitor for probate?

Even if you decide to apply for probate on an estate by yourself you might want to get a solicitor involved once this has been granted. A solicitor will be able to help you navigate any tricky issues that might arise. Would you know how to deal with descendants who were left out of the Will and want to claim against the estate? Or what to do if the estate contained foreign assets? Or was insolvent?

A solicitor is well placed to help with these issues by applying their expertise in probate and particular issues in their geographic location. In rural areas, a business like a farm might still be generating taxable income while also being subject to Inheritance Tax. Similarly, rural properties may not be recorded at Land Registry requiring deeds to be located before the property can be sold. There’s no need to deal with a complicated or trying issue at a time of grief when you can rely on a professional.

In an ideal world, the solicitor who drew up the Will would be the one who also worked with the executors. But if this isn’t possible then choose another probate solicitor or accountant to support you.

Arrange a meeting to discuss your particular needs and talk about any concerns you have regarding the estate and how it is dealt with. It will also be an opportunity to consider how communication will take place and estimated time frames.

Pricing may also be a factor in who you choose to support you. Options are usually an hourly rate, fixed fee or percentage of the estate. Depending on how complex the estate is and what the value is may influence your choice. Foys offer fixed fee packages which you may want to investigate.

Inheriting property should be an exciting opportunity and the chance to remember the deceased with affection. It may not be a quick and easy process but the right support an awareness of the law there can be a satisfying outcome.

If you need legal advice regarding any aspects of probate, use our Online Form to contact our probate specialists.
Alternatively, contact your local Foys Solicitors office:

  • Doncaster – 01302 327 136
  • Retford – 01777 703 100
  • Worksop – 01909 500 511
  • Clowne – 01246 810 050
  • Rotherham – 01709 375 561
  • Sheffield (Waterthorpe) – 0114 251 1702
  • Sheffield (Chapeltown) – 0114 246 7609

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probate inheritance and wills

The responsibilities of an executor

The responsibilities of an executor

If a deceased person leaves a Will, they will name someone as an executor – a person who will oversee and deliver portions of the estate to the relevant parties.

The executor is generally a person that the deceased person knew and someone who they felt could be trusted to ensure that their estate would be properly distributed. As most (but not all) have knowledge that they will be the deceased person’s executor, it is likely that they already have a general idea of the Will’s contents or even have a copy of it.

The executor will perform a lot of roles following the person’s death. Officially, an executor’s primary role is to deliver portions of the estate to the relevant parties (known as ‘beneficiaries’) after any debts or taxes that the deceased person owed have been paid off. Unofficially, however, they will do far more than this. This can include everything from being the person who registers the death to even arranging the person’s funeral.

As there is often a lot to manage as an executor, it is often helpful to secure the services of a probate solicitor. The term ‘probate’ is the legal term to describe the action of confirming and administrating the Will according to the deceased’s wishes.

As such, a probate specialist will be able to work with you to ensure that you fulfil all of your legal duties as the executor, help you understand the intricacies of probate law and complete the relevant legal documents. They will also ensure that you cannot be found to have performed your duties incorrectly and will minimise the threat of any legal action from the deceased person’s family members or creditors.

These are just some of the roles an executor is expected to fulfil as part of their duties:

  • Death registration,
  • Organising funeral arrangements,
  • Tracing the deceased’s property,
  • Valuation of the estate,
  • Settling taxes and debts,
  • Application for legal right to distribute the estate (probate),
  • Distributing notice of the deceased’s estate,
  • The sale of assets,
  • Allotting the estate in accordance with the Will,
  • Making a record of transactions

As there is a lot to manage, this is why it is best to consult with a solicitor who specialises in probate law – such as the Wills, Trusts and Probate team at Foys. As estates worth under £5,000 do not need you to apply for probate, we are going to focus on some of the above things that you need to do as an executor when dealing with an estate in England that has a value in excess of £5,000.

Death registration

As soon as a person dies, their death should be registered as soon as possible at the nearest registry office. In England, this is required within five days. To do this, the executor and/or next of kin must secure a certificate from the hospital doctor or, alternatively, permission to register the death (which is given by the coroner). From here, you should make an appointment at the closest registrar’s office to complete the registration process.

As well as this medical certificate, you will also need documents that prove the person’s identity and address (such as a birth certificate, certificate of marriage, a driving licence and/or a council tax bill). The registrar will tell you what exactly they need. Once this is done, they’ll provide you with two documents: one known as the ‘green form’, which is a Certificate for Burial or Cremation, and a BD8 form which is a Registration of Death. The former permits a burial or cremation to take place for the deceased person; the latter is a form you should fill in and return in the pre-paid envelope if the deceased was receiving state benefits or a State Pension.

In order to execute the estate, you will likely need extra death certificates to pass onto various utility companies (such as energy and water providers), banks, insurance companies, government bodies and other organisations that would need to know about the person having passed away.

The government’s service for doing this is known as the ‘Tell Us Once‘ service. This service will notify nearly all government organisations of the person’s death. As well as a death certificate, you’ll need to also provide the following to use this service:

  • The deceased’s date of birth,
  • Their National Insurance number,
  • Their driving licence number,
  • Their Vehicle registration number (if applicable),
  • Their passport number

As well as these details, you’ll also be required to give the following:

  • Any details regarding the deceased person’s benefits or entitlements (e.g. State Pension),
  • Any details regarding the provision of local council services that the deceased was in receipt of (e.g. Blue Badge for disabled people),
  • Details regarding a surviving spouse or civil partner (i.e. their name, address, telephone number and their National Insurance number or date of birth),
  • Should there be no surviving nor mentally capable spouse or civil partner to handle affairs, details regarding the deceased’s next of kin (i.e. their name and address),
  • The name, address and contact details of the executor,
  • Any details regarding any other pension schemes the deceased was involved with (e.g. public sector or armed forces’ pension schemes)

Organising funeral arrangements

As soon as you have the ‘green form’ – the Certificate for Burial or Cremation – you, the executor, will be able to make arrangements with a funeral director. Often a Will contains instructions regarding this process, such as: who should be consulted; how the ceremony should be conducted (if at all); and, if applicable, what should be done with the ashes after a cremation (e.g. scattered across a particular area or given to a specific person for safekeeping) or where the deceased should be buried.

The costs associated with a funeral or ceremony should come from the deceased’s estate; however, as money to cover the costs of a funeral or ceremony cannot be made available before the probate, the costs will have to be temporarily covered by the executor. There are services that can help cover the costs for you who will then recover the costs from the estate at a later date.

Tracing the deceased’s property

At this point, you should also be moving to track down any assets that were owned by the deceased at the time of their death. While the most valuable and important of these assets are generally stated on the Will, some may not be. These assets will include bank accounts, property and possessions. However, this should also include debts such as loans, bills and mortgages too.

There are tools to help you – such as the Land Registry. You can use this to find any additional properties that the deceased may own. Should you find any property, note that any house that is unoccupied following the death of the owner needs to be secured and the relevant insurance company must be notified of the occupant’s death.

Valuation of the estate

In order to determine the value of the estate, the executor must work with a number of different professional valuers and organisations to work out the true worth of the estate. This can become rather complicated. While houses and property are relatively easy to accurately value with the use of a Chartered Surveyor, it’s often contents that can prove problematic to value. Valuable paintings, porcelain collections and expensive jewellery can prove (if not trickier then) time-consuming. It is best to use professional valuers with specialisation in the field that the possession belongs to as this will ensure accurate valuations.

As for other items that are not valuable, you may want to see about using a company that does house clearances. This will ensure easy, safe and legal removal of household items while enabling the house to be viable for sale as soon as possible. We still have more to discuss but, as you can see, being an executor can be very difficult work – particularly as this may be a time of mourning. At Foys, our probate solicitors will help guide you through the process and can seriously lighten the load.

Settling taxes and debts

If an estate is valued above £325,000, there will likely be Inheritance Tax to pay. This is because anything above that threshold figure will be subject to tax. This tax will not be paid by the individual beneficiaries but by the estate. It is the executor’s responsibility to obtain the value of the estate, complete forms and pay the relevant tax due. Significant gifts made by the deceased in the seven years before their death should also be factored into Inheritance Tax too.

However, tax may not be due if everything above the £325,000 threshold was either left to the deceased’s spouse/civil partner or was given to a charity/community amateur sports club. This is because there is no Inheritance Tax due on any asset transfers between spouses/civil partners. The threshold can also be significantly increased if everything is given away to the deceased’s children or grandchildren. This is inclusive of stepchildren, adopted children and foster children. How much it increases by is dependent on the tax year.

Another consideration is if the deceased has left at least 10% of the estate’s net value to charitable causes, then the amount of Inheritance Tax charged on assets over the threshold will decrease from 40% to 36%. As the executor will be personally responsible for any mistakes made in the calculation and payment of Inheritance Tax, it is important to get in touch with one of our probate solicitors at Foys to ensure you are doing everything correctly.

Application for probate

The need for a solicitor who specialises in Wills and probate can be an important step – especially in cases where there is some level of complexity involving the estate. While the executor can apply for a grant of probate themselves, it is definitely worth considering using a solicitor to do this for you. At Foys, our Wills, Trusts and Probate team will be able to do this.

Distributing notice of the deceased’s estate

As it is not always clear that a deceased person has debts, the executor may want to consider placing a notice in both the local newspapers and public record publication The Gazette. This will afford any local or national creditors an opportunity to make a claim as they are not likely to be aware of the person’s death otherwise.

This is important because, as aforementioned, the executor is personally responsible for the distribution of the estate. If you did not make the necessary efforts to find any hidden creditors, then you (the executor) will be held personally responsible for the debt. This is another matter that our solicitors at Foys will be able to help you with to ensure compliance and eliminate this risk.

The sale of assets

As long as there aren’t any surviving joint owners of a house that the deceased owned, and there were no instructions in the Will to indicate what should be done with the property, the executor will be responsible for what should be done with the property. Often the executor will decide to sell the estate in order to pay off any debts (like the mortgage) and deliver the remaining funds according to what is specified by the Will.

It can be very important to have a probate solicitor on your side when selling property as, again, the executor is personally responsible for the estate. It may be beneficial to sell the house off quickly in order to get access to more immediate funds. However, if the property is sold off quickly and for less than the market value, then the executor may face legal action from beneficiaries of the Will. Conversely, the beneficiaries may want to wait for higher offers to come in which can extend the amount of time, effort and energy required to sell the house. At Foys, we can help you with this process to ensure any decision is taken on sound legal advice that offers you the best protection against any legal action.

Allotting the estate in accordance with the Will

After all of the above has been completed, it’s time to distribute what is left to the beneficiaries in accordance with the Will. This is not a quick process and you should only do this after at least half a year has passed to ensure that there are not any late creditors or others who may challenge the Will or the way it has been executed – as set out by the Inheritance (Provision for Family and Dependents) Act 1975.

A complicated part of this process is the question of pensions and life insurance claims. You need to check and see with any pension or insurance providers to see if there are certain rules around how the money that was paid into these schemes should be distributed. This money may be due to a particular person or it may be able to be rolled into the estate.

One thing to watch out for is whether or not one or more of the beneficiaries have been declared bankruptcy. If you make a payment directly to a beneficiary who is bankrupt (either wittingly or unwittingly), then you (the executor) may be hit with a debt. This is because any inheritance to a bankrupt beneficiary must be shared to their Trustee in Bankruptcy (or Official Receiver) and not directly to the beneficiary. This enables the Trustee to use the money to pay off any debts accrued by the bankrupt beneficiary.

While any bankrupt beneficiaries are required by the Insolvency Act of 1986 to disclose to their Trustee in Bankruptcy that they are to be in receipt of inheritance, they may not always do this. As such, the executor must perform their own due diligence and find out whether or not beneficiaries are bankrupt before making any payments.

If this is not done, the bankrupt beneficiary may face prosecution in the Magistrates Court, and the executor can be held personally liable to pay the amount to the Trustee in Bankruptcy. As checking to see if beneficiaries are bankrupt can be a time-consuming process, particularly if the estate has a lot of beneficiaries, then it’s another reason why our probate solicitors can seriously reduce the load. They will be able to make searches to ensure that you know whether or not beneficiaries are bankrupt or not.

Making a record of transactions

Finally, an executor is responsible for keeping a note of every transaction that has been carried out in their role as executor of the estate. This is not only a legal requirement, as set out within the Administration of Estates Act 1925, but a very important step in covering you against any legal action. What you should detail as part of the estate’s accounts include the following:

  • The estate’s assets and value at the time of the person’s death,
  • The estate’s liabilities and value at the time of the person’s death,
  • Any money to HMRC as part of Inheritance tax (the Inheritance Tax account),
  • Any value that assets gained or lost (the capital account),
  • Any money gained after the person’s death to when the assets are transferred or otherwise realised (the income account),
  • Any fees paid to the court, conveyancing services, surveyors, legal advisors, estate agents, bankruptcy search services and other relevant expenses (the administration expenses account),
  • The total money paid to each beneficiary (the distribution account)

What else can a probate solicitor help with?

We have described a route that is followed by many executors; however, there are also many instances where this path can be deviated from due to other circumstances. Take, for example, if there is disagreement over who should be the executor or if two executors were appointed and cannot reach agreement on decisions taken on behalf of the estate. Additionally, if the deceased person did not leave a Will, this can cause serious complications for any potential executor.

A probate solicitor can be essential in these scenarios and in others, including:

  • If the estate is bankrupt, thought to be bankrupt or there are questions surrounding the estate’s bankruptcy,
  • There are complex and unconventional circumstances (e.g. when the deceased person’s assets are within possession of a trust),
  • The estate continues to earn a regular income that pushes it over the Inheritance Tax threshold,
  • If the deceased lived outside the UK and/or had foreign assets or properties,
  • If a potential beneficiary was intentionally left out of the Will but tries to make a claim as if they were a beneficiary (e.g. an estranged child, an ex-partner, etc.)

There are many more instances that can complicate matters for an executor. As well as the previously mentioned benefits, these are further reasons why an experienced probate solicitor can be so important as it is likely that they have seen most, if not all, scenarios play out before and, consequently, know the correct response.

Contact the wills and probate specialists at Foys

Being an executor may seem like a thankless task but there is likely a good reason as to why you were chosen for the role and the likelihood that the deceased person put their trust in you to distribute their estate. This sense of responsibility to this friend, loved one or valued acquaintance often motivates executors to do their best. But, in order to ensure that happens, it is advisable to have legal counsel in place.

An executor can face many challenges so having a probate solicitor help can be hugely beneficial to not only their ability to carry out their responsibilities, but also ensures that there is an expert offering practical and sound legal advice who is never more than a phone call away – should a sudden problem arise.

Our qualified and dedicated Wills, Trusts and Probate team at Foys are considered amongst the best in England in dealing with all matters relating to executing Wills and managing probate. For over 40 years, we’ve helped executors settle estates all across the north of England and Midlands. Our service helps executors understand the process, what it entails, the responsibilities of an executor – all in a way that is digestible and easy to follow. For many, this advice and guidance from Foys is invaluable in settling the estate with minimal stress.

We’re happy to offer you a FREE initial consultation so that we can understand your case and explain to you how we can help – all without any financial commitment. To talk to a member of our Wills, Trust and Probate team, and get your free initial consultation, simply call 01302 327 136 or get in touch using our Online Form today. 

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The danger of DIY Wills

The danger of DIY Wills

Errors in Wills are common and can lead to disputes which result in considerable legal costs taken from the estate. Find out why a DIY Will may not be a good option for you.

DIY Wills have been blamed for the sharp increase in the number of contested estates across the UK. Indeed, attempting to write your own Will may lead to devastating consequences. For instance, unclear clauses may see your relatives turn against one another or a loved one may choose to contest the validity of your Will. Sorting out arguments may result in costly legal action which will reduce the money in the estate.

To highlight the dangers of DIY Wills, our Wills, Trust and Probate team at Foys Solicitors shares the pitfalls to avoid and advises you to think twice before opting to do it yourself.

What is a Will, and why should a solicitor help me write one?

A Will is an important legal document, encompassing how you want your estate (property, possessions and finances) to be distributed among your family members and/or charitable organisations that are close to your heart after you have died. This legal document includes every asset you have, your beneficiaries and most importantly, the name of your executor(s) who will manage the distribution of everything that you have left behind.

Getting a solicitor to help you write one means your Will is well-considered and error-free. Here are a few scenarios where a solicitor can help and make sure your Will is watertight.

Beware that witnesses cannot benefit from your Will

The witnesses of your Will (and their spouses) cannot benefit from your Will. If a witness (or the spouse) is a beneficiary, the Will is valid but the beneficiary will not be able to inherit.

You suspect some family members will want to make a claim

Divorce and remarry are now common occurrences and many of us have blended families with multiple step-siblings and stepchildren. It is not easy to please all and if you suspect a family member may challenge the validity of your Will when the time comes, make sure you get a solicitor to help you create an error-free Will and minimise the stress your loved ones have to endure later.

You share a property with someone who is not your spouse

This is actually more common than one would expect – you may have purchased an investment property with a friend, helped a relative to buy a house and pay for the mortgages – as long as you share a property with someone who is not your spouse, get in touch to create a Will that protects your interest and your loved ones.

Other scenarios

When there is a business involved, when you want to set-up a trust, when you have property in another country, when you retire in another country but have property in the UK, when you wish to make provision for a dependent who is unable to care for themselves – these are some scenarios when a solicitor can help you create a watertight Will.

The dangers of DIY Wills

Without the guidance of an experienced solicitor, a DIY Will is likely to contain mistakes or omissions, leaving your family to argue over your possessions and property.

Remember, when disputes happen, the legal costs are likely to be paid for by your estate, meaning the values of your estate will reduce. Do not let a disgruntled relative keep your heirs and loved ones from the inheritance – you can minimise this risk by not using a DIY Will and making mistakes.

To write a Will, you must be over 18 and have mental capacity to understand the outcome of the document you are writing and signing. If you have been diagnosed with a neurodegenerative disease, it is wise to contact us as soon as possible. Doing so will allow us to get medical evidence to say you understand what you are doing and we can help you create a Will that avoids future complications or doubts.

Also, a DIY Will is unlikely to accommodate the changing of your circumstances. For instance, you have children from your previous marriage and you are about to remarry – in this instance, it is wise to provide for them in a new Will to minimise the chance of them being disinherited in the future.

Common mistakes on a DIY Will

1. Incorrectly signed and witnessed

Your Will needs to be witnessed by two people who are present at the time of your signing for it to be legally binding. These witnesses must be UK citizens, 18 years or older and not be named as beneficiaries in your Will or married to someone who is.

2. Omitted assets or debts

Forgetting to mention assets in your Will means your heirs are not likely to get the amount specified. Also, it is important to consider debts like mortgages and how they may reduce the values of your estate.

Pecuniary and residuary legacies

If you have £100,000 in the bank, you may say your sister will get £20,000 (a specific sum of money which is considered a pecuniary legacy) and your child will get the remaining £80,000 (a residuary legacy). But by the time you die, the money in the bank may be just £20,000. This means your sister gets £20,000 and your child is left with nothing because residuary legacies are paid after pecuniary legacies.

Out of date

A new marriage will invalid any existing Will in England and Wales. Also, your named executor(s) or beneficiaries may have died before you.

Hand-written amendments

You cannot amend your Will after it has been signed and witnessed. The only way you can change a Will is by making an official alteration called a codicil which must be signed and witnessed.

Inappropriate executors

An executor will be considered inappropriate if they are under 18, do not feel capable of accepting the responsibility or live overseas.

What happens if your DIY Will is considered invalid?

If a Will is considered invalid, then the Rules of Intestacy apply. In this case, only a set of individuals will be entitled to inherit your estate and the order is as follows:

  • Your spouse or civil partner
  • Children, grandchildren, great grandchildren
  • Parents
  • Brothers and sisters (or their children)
  • Half-blood step brothers and sisters (or their children)
  • Grandparents
  • Uncles and aunts (or their children)
  • Half-blood step uncles and aunts (or their children)
  • The Crown

These may not be the people you have in mind as your heirs. Also, as the rules of intestacy do not acknowledge your unmarried partner, stepchildren, in-laws, friends and organisations you care about, they will not be able to cherish your legacy as a result.

By employing a dedicated and experienced solicitor to assist you with writing your Will, you can ensure that this will not happen. At Foys, our solicitors have decades of experience with Will writing, and you can rest assured that your wishes after death will be respected.

What does writing a Will entail?

The legal and correct process of writing a Will does not need to be complex or lengthy. With Foys, we will guide you every step of the way and make sure that your Will is well-considered and error-free, thereby preventing any misunderstandings and disputes among your relatives.

A valid Will needs to:

  • Be in writing, signed by you and witnessed by two people.
  • Have been written by you while you had the mental capacity to make and understand the effect of it.
  • Be made by you voluntarily, and without any pressure or coercion from another person.
  • Be completely free of errors and transparent as to what your wishes are.

Foys Solicitors is trusted with Will writing

With the assistance of our dedicated Will and Probate solicitors, the experience of creating your Will is made significantly straightforward and affordable. We offer competitive fixed standard fees for our services, safeguarding your wishes and putting you and your family at ease.

We do not want legal fees to deter you from protecting your interests in the future, so we offer a FREE initial consultation. This allows us to determine the best course of action and understand how we can help you.

To get in touch simply fill out our Online Form or call your local Foys Solicitors office:

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Please note that although we may use the word solicitor, your case could be carried out by a legal advisor, legal executive or paralegal depending on the nature of the case.

This post is not legal advice and should not replace professional advice tailored to your specific circumstances. It is intended to provide information of general interest about current legal issues.

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The importance of writing a will

The importance of writing a will

Wills are crucial to protect our loved one’s financial future and if you haven’t made one, contact the Wills, Trust and Probate team at Foys Solicitors.

Understandably, as many of us tackle life on a week to week basis, we spare little time for any future planning. This may be the reason why research carried out in 2018 by Royal London found that 54% of adults in the UK didn’t have a Will.

The truth is many of us work hard to protect and provide for our loved ones, and writing a Will can ensure this continues after we are gone. In this article, our Wills, Trust and Probate team at Foys Solicitors aims to discuss the importance of a Will and essential things to consider when writing a Will.

Why is a Will important?

Here are some of the key reasons why making a Will can be one of the most important things you ever do:

1. It makes sure your assets are distributed the way you want

By creating a Will, you ensure that your estate is distributed in line with your wishes to the people you love the most when you die. This is a vital part of estate planning. Estate planning refers to how you would like your estate – your property, money, financial and personal assets that you’ve worked all your life for – distributed after your death. In turn, this can make it easier for your loved ones to inherit and treasure your legacy during this challenging period. A Will can also allow you to voice any wishes you would like fulfilled after you’re gone.

2. Without a Will everything you own will be shared out in a way defined by law

At Foys, our solicitors have seen the devastating effects of what happens when somebody dies without a Will and relatives in mourning have no say on how the deceased’s assets are distributed. During this tough period, the Rules of Intestacy apply, meaning that people you may not have wanted to receive any part of your estate could end up with potentially all of it. According to these rules, only the deceased’s married or civil partner, children (whether they were within the individual’s care or not) and other close relatives can inherit from the estate. Partners who were not married cannot inherit through this process. Furthermore, all personal belongings, along with the first £250,000 of the estate and half the remaining estate, are inherited by the closest living married or civil partner. The remaining estate would be distributed among other living relatives including children.

The risk of not drafting a Will could disinherit the people your love dearly or discontinue the support you have been giving to charitable causes that are close to your heart. Having a Will drafted by our team of professional solicitors at Foys can make sure that you avoid this outcome and help you to provide suitably for those you cherish the most.

3. A Will can help you reduce Inheritance Tax

Inheritance tax is a tax on the estate of the deceased. However, you don’t have to pay this if the estate is valued below £325,000. Any assets passed on to your spouse, civil partner or a charity are also exempt from this tax. If you give your home away to your children (including stepchildren adopted and fostered) or grandchildren, this threshold increases to £475,000. The standard rate of Inheritance Tax is 40% and is charged on everything above the threshold.

4. In some instances, time is of the essence

There’s no set time to write a will, with most people assuming they’re going to do it later in life. However, if you have a family, have a lot of assets or are in unstable health, it is best to do it sooner rather than later.

When writing a Will, it is imperative that you have mental capacity, meaning the ability to make rational decisions in your best interest. For those who have a form of dementia such as Alzheimer’s and haven’t written a Will, at some point, you may lose capacity and could therefore legally be unable to write one. Writing a Will as soon as possible is vital for people with neurodegenerative conditions to ensure their future wishes are carried out. For more information, check out this Protection of the elderly service page.

Before writing a Will

Before discussing with our solicitors about your Will, it is vital to make a list of the following items:

1. All the assets you have

List all the money, property, investments that you have. If you have property in a country where they do not recognise the freedom of testation, our solicitors will advise if you need to make a foreign Will to ensure that the property will go to your beneficiaries.

2. Decide who are your beneficiaries

Most people naturally think of the immediate family members including:

  • Your spouse
  • Your children whom you provide for
  • Anyone whom you have been a guardian for, such as a foster or stepchild
  • Anyone else you were providing for
  • Extended family or friends

Nowadays, divorce and re-marry are common occurrences so it is worth to consider all possibilities.

In addition, although you’re at liberty to include or exclude anyone in your Will, there are a few people whom you must provide for under the Provision for Family and Dependants Act 1975. If you wish to leave someone out, be aware that they may challenge your Will after you have gone. Therefore, it is best to contact our specialist team at Foys and make sure your Will is safe from any legal challenges.

3. Choose your executors

An executor is a person who is legally responsible for ensuring your Will is followed. The executor must be at least 18, trustworthy, and can be one of the beneficiaries (like your spouse or one of your children). It is wise to choose more than one executor just in case one of them is unable to perform their duties.

Sometimes relationships can break down between an executor and the beneficiaries to the extent that an estate cannot be properly administered. To avoid future complications, you can choose a solicitor to be an executor instead. By placing your executive trust in our Wills, Trusts and Probate Solicitors at Foys, you can rest easy in the knowledge your estate is in safe hands.

The contents of the Will

A Will should contain several key elements:

  • Who you are, describing enough personal information to certify it is your Will.
  • The names of your beneficiaries (these can be people, charities or institutions).
  • The name of a guardian for children whom you care for independently (if they are under 18).
  • Your assets and their values.
  • How you would like your assets distributed after you’re gone.

In addition, you may also wish to include your funeral preferences (whether you want to be buried or cremated for example), trusts that you might have put aside for your children or sentimental items such as letters or messages you wish to give to specific family members.

Requirements for a valid Will

For a Will to be valid, it must be:

  • Made by you (who is 18 years old or over)
  • Made by you voluntarily and without pressure from any other person
  • You are of sound mind, meaning you are fully aware of the nature of the document being written or signed, aware of the property and the identify of your beneficiaries
  • You create the Will in writing
  • The Will is signed by you in the presence of two witnesses who are over 18
  • The Will is signed by the two witnesses, in the presence of you after you have signed it

Be aware that a witness or the married partner of a witness cannot benefit from a Will. If a witness is a beneficiary (or the married partner or civil partner of a beneficiary), the Will is still valid but the beneficiary will not be able to inherit under the Will.

If our solicitors help you to create your Will, we can act as witnesses to the signing of the Will and make sure all the legality is covered.

Carrying out your Will after you pass away

After you pass away, your executor will locate the latest Will and calculate the total value of your assets – if the values exceed £15,000, then the executor will apply to the Probate Registry for a Grant of Probate – a legal document which confirms the executor has the authority to manage your assets or administer the estate in legal terms.

With the Grant of Probate, your executor can now access your bank accounts, sell property, submit tax returns and pay tax liabilities. After that, the executor can start to distribute your estate to the beneficiaries stated in your Will.

It must be noted that administering an estate involves a significant amount of work, so the executor is often busy. During this stressful time, it may be worth getting our solicitors to assist, making sure that the probate process is managed efficiently and correctly.

Expert advice from our Wills, Trusts and Probate Solicitors

Writing a Will can be one of the most important things you do to protect your family and loved one’s future. To help you through this process, we offer a FREE initial consultation so our Will, Probate and Trust team can help you create a well-considered and error-free Will that truly reflects your wishes.

Our services include:

  • Preparing your Will
  • Acting as witnesses to the signing of the Will
  • Preparing and Advising Trust Deeds
  • Obtaining Grant of Probate/ Letters of Administration
  • Distribution of a deceased’s estate

To find out more about how we can help with your needs, call your local Foys Solicitors office today or get in touch through our Online Form.

Please note that although we may use the word solicitor, your case could be carried out by a legal advisor, legal executive or paralegal depending on the nature of the case.

You may also be interested in:

This post is not legal advice and should not replace professional advice tailored to your specific circumstance. It is intended to provide information of general interest about current legal issues.

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Book an initial FREE consultation or to find out more about our personal and business law services

Call the office nearest to you and speak to one of our professional specialists or fill out the form below

Will writing

Continuing to help with your Wills during the COVID-19 lockdown

Continuing to help with your Wills during the COVID-19 lockdown

Here at Foys, we can still help you with your Will, despite the COVID-19 lockdown

We, at Foys understand that with the outbreak of the Coronavirus we are all going through unprecedented and worrying times.

This may put certain things such as making Wills to the forefront of people’s minds, but we also understand that with the guidelines issued by the Government, the “traditional” way of signing and witnessing Wills in a face-to-face setting would not be suitable.

We know most of our clients would feel safer completing Wills from the safety of their own homes. That is why our solicitors at Foys have devised new procedures to take Will instructions via Skype. For those who are unable to use Skype via “contactless appointments”, we attend at your property and take instructions at a safe distance without even entering your property.

When it comes to signing and witnessing the Wills, we can send the Wills to you with comprehensive instructions of how to get it signed and witnessed. If you are unable to gather two witnesses to witness your Wills, we can attend the property and witness the Wills with you, again at a safe distance without entering your property.

If you would like to hear more about our Will drafting services please do not hesitate to contact us on the relevant telephone number for your local office:

You can also send us a message online by filling out our Contact Form.

With our best wishes,


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The top 5 things you need to know about contesting a Will

The top 5 things you need to know about contesting a Will

When a loved one passes away, it can be disheartening to learn that the Will of the deceased does not truly reflect their final wishes.

After the loss of a loved one, contesting the deceased’s Will is not a scenario that most family members would like to contemplate. In reality, with many of us having blended family and seeing loved ones losing their mental ability due to neurodegenerative diseases like dementia and Alzheimer’s, it is common for people to question if a deceased’s Will truly reflects their final wishes.

If you find yourself in this challenging spot where you (and/or a relative) question the validity of the Will, read on to find out:

  • Common grounds for contesting a Will
  • When complicated scenarios arise
  • Who can challenge a Will
  • The process of challenging a Will
  • How long does contesting a Will take

Alternatively, you can also come and discuss your situations with one of our Wills, trust and probate team at Foys.

What is a Will?

A Will is a legally-binding document that dictates exactly how and to whom your estate (property, cash and possessions) should be distributed upon your death.

1. Common grounds for contesting a Will

Just because a Will seems unfair or unexpected does not mean you have grounds to challenge the Will. So in this section, we will discuss some of the common grounds to contest a Will.

Lack of testamentary capacity

Testamentary capacity is a legal term that is used to describe the mental capacity and comprehension needed of the person writing the Will (the testator). If the person making the Will did not seem to be fully aware of what they were doing, then you could challenge the Will under these circumstances.

Undue influence

If a person was unduly influenced at the time of signing, the Will could become invalid. An example is a carer who has taken control of a person’s day-to-day life and has become a major beneficiary.

How the Will was signed and witnessed

For a Will to be valid, it needs to be signed by the person making it (the testator) and witnessed by two individuals.


This could range from someone producing a Will with forgeries, a fake Will, to someone presenting the testator with a Will to sign but telling them that they were signing another document.

Lack of financial provision

Anyone who is financially dependent on the deceased should be given adequate provision in his or her Will. If you are a spouse, civil partner, child of the deceased or an individual who has been financially dependent on the deceased and you have been completely disinherited, you could challenge the Will.

Incorrect Will was used

For some people, updating their Will as circumstances change is a sensible option and the latest Will should cancel the previous Will by default. But if the executors are not aware of the new Will and they have acted on the old Will, then you could contest the (old) Will especially when the latest Will is found.

2. Complicated scenarios

Testamentary freedom, meaning you have the right to give your money to who you like, is upheld by the court time and again. Here are two scenarios under which your claim may not be successful unless you have strong evidence.

Someone has promised you something

It is fairly common to hear a loved one making a promise like your mom would give you her house when she passes, or your granddad would leave you £20k when he passes. When the Will is finally revealed, you are shocked to see that it doesn’t contain the promised made to you.

An unfair Will doesn’t automatically mean you can contest it. If you find yourself in this situation, you may be able to contest the Will if you have contributed financially to your mom’s house, or you have been financially dependent on your granddad. It will be up the judge to decide if you have a right to the estate that you are claiming against.

The complexity of a blended family

In this day and age, it is common for couples to separate and remarry. It is possible that one of your parents has remarried and died without a will or has left everything to your stepparent who then disinherits you.

If you are in this situation, you could contest the Will on the grounds of lack of financial provision, if you have been financially dependent on the deceased.

3. Who can challenge a Will?

In theory, anyone can challenge the validity of a Will. However, usually people who were closed to the deceased may choose to do so.

If you are contesting a Will because it does not give you reasonable financial provision, then you must fall into one of the following categories:

  • A spouse or civil partner
  • A former spouse or civil partner who has not remarried or entered into a new civil partnership
  • A child or a grandchildren
  • An individual who has been financially dependent on the deceased

4. The process of challenging a Will

Before you kick-start the process of contesting a Will, it is worth taking a minute to review the following points:

  • You have a valid reason like the signature was a forgery or the deceased was being bullied into changing the Will
  • You have evidence (medical records, witness statements) to support your claims
  • You have the legal right if you are contesting on the ground of financial provision
  • You do so within the time limit

Time limits

How much time you have to contest a Will depends upon the nature of the claim:

  • You have six months to make a claim from the issue of the grant of probate if you are contesting on the ground of Inheritance Act.
  • You have 12 years from the date of death if making a beneficiary claim against the estate.
  • You can make a claim at any time (no time limit) in the event of fraud, like when the executor has misappropriated assets.

We encourage you to call one of our local offices and discuss your situation with a qualified Will, Trust and Probate solicitor at Foys first. Once we have verified that you have a case, we can help you to submit a formal claim to the Probate Registry office. This claim will stop the probate process, meaning the deceased’s estate cannot be distributed unless the dispute is resolved.

5. How long does contesting a Will take

The process of contesting a Will in court could take years, which is why our Wills, Trust and Probate team at Foys works with you and together we aim to resolve the issues amicably with the estate of the deceased through mediation first. Mediation is less expensive than going to court, saving you time, effort and money.

While mediation is preferred, sometimes it does not work and the case will go to court. If this happens, you can be certain that our legal team at Foys will be with you every step of the way.

Before contesting a Will, call Foys Solicitors first

Contesting a Will is a potentially costly exercise and the estate you are claiming against might not have enough money to pay you by the time the process has gone through court. This is why our solicitors at Foys encourage you to come and discuss your case with us first. Let us give you an honest review so you know your options.

Aiming to reach an amicable agreement with the estate you are claiming against through mediation is also a sensible option. Mediation can save you time and money.

When it comes to cases with evidence to suggest that the deceased did not understand the document they were signing, they were unduly coerced at the time of signing, or fraud was present, you can count on us to protect your interests throughout the process.

To kick-start the discussions about contesting a Will, fill out our Online Form and we would be in touch soon.

Alternatively, you can call your local Foys Solicitors office:

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This post is not legal advice and should not replace professional advice tailored to your specific circumstance. It is intended to provide information of general interest about current legal issues.

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Will appointments and other private client services

Will appointments and other private client services

We, at Foys understand that we are all going through unprecedented and worrying times.

This may put certain things such as making Wills to the forefront of people’s minds along with Lasting Powers of Attorney and Probate advice. We, at Foys are continuing to offer an uninterrupted service to existing and new clients and in doing so we can still provide these services via Skype and in some circumstances contactless home appointments.

If you wish to discuss these services further, please do not hesitate to contact us on the relevant telephone number for your local office:

You can also contact us via the Contact Us page.

For information about our services, take a look at our Wills, Trusts and Probate page.

With our best wishes,


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Book an initial FREE consultation or to find out more about our personal and business law services

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Grandfather reading with grandson

Foys Solicitors is taking part in Will Month!

Foys Solicitors is taking part in Will Month!

Once again, our Chapeltown and Crystal Peaks offices are taking part in Will month.

Throughout April 2020, we will be offering our will-writing services for free, and in return, all we ask is for a donation to St Luke’s Hospice. Our two Sheffield offices (Chapeltown and Crystal Peaks) will be taking part in this year’s charity event.

The consequences of not having a Will can be devastating for the loved ones you leave behind. Our team will guide you through the process of writing your Will. You can find out more about our Wills service on our Wills, Trusts and Probate Law page.

We recommend you take this opportunity to give yourself and your family peace of mind while supporting a brilliant charity. To take part in Will Month, contact the Will solicitors at our Crystal Peaks office on 0114 251 1702 or Chapeltown office on 0114 246 7609.

If you have any questions for St Luke’s Hospice, give them a call on 0114 235 7551.

Enquire About Our Services Today

Book an initial FREE consultation or to find out more about our personal and business law services

Call the office nearest to you and speak to one of our professional specialists or fill out the form below