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December 2020

what does probate involve

What does probate involve?

By | Probate | No Comments

Probate is the process of dealing with the estate of someone who has passed away. It generally involves getting permission to carry out the wishes within someone’s Will, organising and settling their estate, and possibly clearing any taxes and debts left behind.

There are specific rules that set out how you go about notifying the authorities and distributing the estate, so if you are responsible for executing someone’s Will, you need to be aware of how it all works.

Who is responsible for arranging probate?

If the deceased has left a Will, it will name someone that they have chosen to administer their estate. This person is known as the ‘executor’ of the Will. In most cases, this will be a family member or close friend of the deceased. The executor is the only person who can apply for probate to administer the estate.

what does probate involve

If you have been appointed as an executor and you don’t want to administer probate yourself, you can appoint a professional executor. You may also want to do this if you’re faced with a particularly complex case. In fact, in complex cases, a professional executor may be essential. A professional executor will expect to be paid from the proceeds of the estate for carrying out this duty, and they will usually carry out the entire probate process and receive a fee for this also.

What does the probate process involve?

Every estate and every Will is different, and the exact probate process will depend on the instructions left in the Will and the assets and beneficiaries that the estate has. Here is the basic process for an executor:

  • Gather the full details of the estate’s assets and debts
  • Apply for a Grant of Probate, the legal document that gives you the authority to deal with the deceased’s property
  • Notify banks, building societies, and relevant government departments such as the council and HMRC of the deceased person’s death (most government departments can be notified in a single move via the Tell Us Once service)
  • Complete an inheritance tax return and pay any tax due
  • You receive a Grant of Probate
  • Repay any of the deceased’s outstanding debts
  • Distribute the rest of the estate according to the instructions left in the Will.

what does probate involve

Once all taxes and debts have been paid and all the inheritance has been passed on, probate ends. The process will take around a year for most estates, however, this will depend on the size and complexity of the estate. International probate can be more complicated and usually takes between six months and two years.

Can probate be contested?

Sometimes, disputes can arise during probate between the executor, beneficiaries, creditors, or tax authorities. These disputes can cause delays and if you aren’t already using a professional executor, you may need to list the help of a solicitor to advise on how to progress.

There are several ways in which probate could be contested. This could prevent you from even being given a Grant of Probate. In some cases, a beneficiary or relative of the deceased may enter a caveat, which can prevent or delay probate being granted. This might happen if two people are entitled to apply for probate, or if questions arise about the legitimacy of the Will. An individual can challenge or contest a Will if they believe:

  • The Will has been forged
  • The deceased had reduced mental capacity when writing their Will
  • The deceased was under undue influence when writing their Will
  • The person contesting the Will was financially dependent on the deceased and the Will doesn’t provide for them.

what does probate involve

When a caveat is placed on the estate, the person who placed it will need to state their reasons within eight days, or it will be removed. Otherwise, it goes to the courts to resolve and probate will be granted to the most appropriate person.

What if there isn’t a Will?

In many cases, someone may pass away without having written a Will. If this is the case, you cannot get a Grant of Probate. You can, however, administer the estate and distribute inheritance through a slightly different process. Instead of being distributed through the terms of the Will, the estate must instead be distributed according to the Rules of Intestacy. Only spouses, civil partners, children, and other close relatives can inherit under these rules and the law will decide this based on an order or priority, as follows:

  • Spouse or civil partner
  • Children
  • Grandchildren
  • Great-grandchildren
  • Parents
  • Siblings
  • Nieces and nephews
  • Other close relatives.

Do you need help and advice with obtaining probate, or are you looking to appoint a professional executor? At Bromfield Legal, we have qualified experts who are well placed to assist. Please contact us to find out more.

a male and a female sat opposite each other but the female is looking away from him upset

Can you get a divorce if the other person refuses?

By | Divorce and Separation | No Comments

Even when a divorce has been agreed on by both spouses, the situation can often get contentious. When one party refuses the divorce, it can make things all the more difficult. Divorce isn’t a nice thing to go through, and you probably want it over and done with. When your spouse refuses, the process may stretch out much longer than expected.

A resisting spouse may refuse to sign the necessary divorce papers, or may simply fail to respond to a request for divorce or hide away and bury their head in the sand. When this happens, it can seem impossible to progress the divorce, however, this is not the case. You do have options.

Can I get a divorce?

In England and Wales, you can get a divorce if:

  • You and your spouse have been married for over a year
  • Your marriage is legally recognised in the UK
  • The UK is your permanent home or at least the permanent home of your spouse
  • Your relationship has broken down irretrievably

can you get a divorce if the other person refuses

When it comes to proving that your relationship has broken down irretrievably and cannot be saved, you’ll have to give one of the following reasons to back up your claim:

  • Your spouse committed adultery (note that you cannot use this as your reason if you have then since lived together as a couple for over six months after you found out)
  • They behaved unreasonably, which could include being physically violent, using verbal abuse and/or taking drugs, but could be an accumulation of less serious behaviour
  • They deserted you for two years or more
  • You and your spouse have been separated for two years or more, and they agree to the divorce

You will need to cite your reason/s in your divorce application. Once submitted, if it is all correct and legal you will be given a notice that your application has been sent. You’ll also receive a copy of your application stamped by the UK divorce centre, and be given a specific case number.

What if my spouse refuses?

What you can do if your spouse refuses to get a divorce will depend on your circumstances. There are a few instances where you do not need your spouse’s cooperation in order to advance with the divorce – for instance if you have been separated and living apart for five years or more, as mentioned above. You also do not need their cooperation if you are basing the divorce on your spouse’s unreasonable behaviour. In other cases, it can be a little trickier.

can you get a divorce if the other person refuses

When you file for divorce, your spouse will be sent an Acknowledgement of Service form alongside the divorce papers. This form will give your spouse the opportunity to agree with the divorce, or detail their intent to try and prevent it from happening. The Acknowledgement of Service form must be completed in order to confirm that they have received the divorce papers, and they have eight days to respond.

If they do not respond to the form, this could be their way of refusing the divorce. This can be very frustrating, and not to mention expensive and time-consuming in the long-run. You can progress with the divorce, but you will need to satisfy the court that your spouse has received the divorce papers. You have a few options here.

What are my options?

You can pay an additional fee and instruct the Court Bailiff to re-serve the divorce papers to your spouse. This will serve as enough proof to the court that your spouse has received them and you can progress. Alternatively, you can use a Process Server. This is very similar to instructing a Court Bailiff, however, the Process Server will often go to greater lengths to effect service, and therefore your prospects of success will be better. Once the Process Server has delivered the papers, they provide you with a certificate service which you must present to the court. This is usually the quickest way of proceeding, if your spouse is being difficult.

Perhaps you have hard evidence such as a letter, text, or email from your spouse in which they confirm that they have received the divorce papers. In this case, you can make a separate application for what is referred to as Deemed Service. In this instance, you won’t need to arrange for your papers to be re-served through a Court Bailiff or Process Server. The decision to grant Deemed Service is made at the judge’s discretion, so if you apply for it, it does not necessarily mean that you’ll be granted it.

can you get a divorce if the other person refuses

Your last resort is usually Dispensed Service. You can only apply for this if you have tried all of the above three options without success and it is the only means to progress with the divorce without your spouse’s Acknowledgement of Service form. This is only allowed if the court is completely satisfied that you’ve done absolutely everything you can to find your spouse and serve them with the divorce papers.

Once you have utilised one of the above options (or all of them), you should be able to progress to the next stage – the Decree Nisi stage. The Decree Nisi is a document that says the court sees no reason for you not to divorce. At this stage, you will not need any further reference to your spouse. You will not need them to attend to any other documents in order to secure the Decree Absolute, which is what will complete your divorce.

What if my spouse tries to defend the divorce?

It is not always the refusal to acknowledge a divorce that can complicate proceedings. Your spouse may actively try to defend and prevent it. Perhaps they do not accept that the relationship has broken down, or they do not agree that the grounds stated in the divorce papers are correct. In the event of a spouse defending the divorce, they must file with the court an Answer to Divorce form that allows them to state why they disagree with it. They have 28 days to submit this.

can you get a divorce if the other person refuses

If they do not submit this form, then you can go ahead and apply for the Decree Nisi. If they do submit it in time, you may have to go to court to discuss the case and the ultimate decision will be left to a judge. Defended divorces are very rare. It’s a costly and often futile process, with the court usually being reluctant to force couples to remain married.

If you and your spouse really can’t come to an agreement, then always seek legal advice from a solicitor that specialises in family law, such as us here at Bromfield Legal. We can help you decide on the best route to take, and we’ll contact your spouse and their solicitor so that you don’t have to. We can also represent you in court if necessary, in order to get the issues dealt with as smoothly and professionally as possible. Contact us today and let us guide you through this difficult time.