Double jeopardy of digital asset inheritance planning amid probate delays

Hidden digital assets and mounting interest on inheritance tax bills are creating a costly double risk for families dealing with estates following the death of a loved one, as probate delays continue to impact thousands across England and Wales, adding further stress and financial pressure.

Recent figures from the Ministry of Justice (MoJ) show that more than 2,000 probate applications in England and Wales took over a year to be granted by the Ministry in the 12 months to April 2025. While the MoJ says many applications are now being processed by them more quickly, a significant backlog remains, and complex estates can still face lengthy delays.

Government guidance says the application should take up to 16 weeks, but data shows 203 cases had taken the MoJ between 21 and 23 months to complete in 2024-25, up from 88 in 2020-2021, and 9,480 cases took more than six months to clear the Ministry in 2024-25.

A grant of probate is required before executors can finalise a deceased person’s estate, including accessing bank accounts or selling property held in their sole name. Until this is issued, assets are effectively frozen.

Delays can have serious financial consequences. Inheritance tax is usually due within six months of death, after which interest begins to accrue, currently at 7.75 per cent. This means that even where delays are outside the control of executors, estates can face mounting costs.

“There are some ways that executors can take the initiative if they face delays on their application for probate to be granted,” said Chris Shaw, a specialist in later life planning with Rotherham-based solicitors Oxley & Coward Solicitors LLP. “Banks will release funds for tax payments directly to HMRC, so an estimate of inheritance tax could be paid on account.  Unfortunately, that won’t help if the estate is largely tied up in non-cash assets such as property.”

Alongside, legal experts warn that the growing complexity of modern estates – particularly the rise in digital assets – may further complicate the process if not properly planned for.

Digital assets can include anything from online bank accounts and investment platforms to cryptocurrency, email accounts, cloud storage, photographs, subscriptions and social media profiles. While some may hold financial value, others carry significant sentimental importance.

However, unlike physical assets, digital accounts can be difficult to identify and access if no record exists.

“Many people simply don’t think about their digital footprint when writing a will,” explained Chris Shaw. “But if executors don’t know an account exists, it may never be dealt with. That means money, or memories, could be lost.

“Equally, if they know it exists but can’t access it, this can cause delays at a time when the estate needs to be administered efficiently to avoid potential penalties. When you consider that late payment of a £250,000 tax liability could cost almost £20,000 in penalty interest over a 12-month period, it’s really worth keeping track of assets so executors are well informed.”

A key issue is that access to many digital assets depends on login details or security keys. This is particularly relevant for cryptocurrency, where losing access credentials can mean the asset is permanently inaccessible.

Experts recommend keeping an up-to-date inventory of digital assets, alongside clear instructions on how they should be handled. This information should be stored securely, with executors made aware of where to find it.

Chris Shaw added: “Even the most mundane matters can cause complications. Utility accounts, online shopping profiles and subscription services may continue to incur charges until they are identified and closed.  Equally, care may be needed before closing all accounts, as devices such as phones and laptops may hold important documents or information needed to administer the estate.”

Social media accounts can also present challenges, with families needing to decide whether to close or memorialise profiles in line with the deceased’s wishes.  Establishing legacy contacts with platforms in advance, as part of estate planning, can help families overcome some problems in dealing with service providers to access a loved ones’ digital assets.

More broadly, simplifying financial affairs during your lifetime – for example by consolidating accounts and keeping clear records – can help reduce the administrative burden on those dealing with your estate.

“With further changes on the horizon, including personal pension pots being brought into the scope of inheritance tax, estates are set to become even more complex in future,” explained Chris Shaw.

“Taking steps now to ensure your will fully reflects both your physical and digital assets could help executors navigate the probate process more efficiently, minimise delays and reduce the risk of unnecessary costs at an already difficult time.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

Inheritance Act Claims and Letters of Wishes: Managing Risk in Estate Planning

Even a carefully drafted will does not always bring matters to an end. The Inheritance (Provision for Family and Dependants) Act 1975 allows certain people to apply to the court for financial provision if a will or the intestacy rules fail to make reasonable provision for them. One practical way to reduce the risk of disputes is to use a well-thought-out Letter of Wishes. This article explains how the 1975 Act works, who can bring a claim, and how Letters of Wishes can help provide clarity and context after death.

When a will is not the end of the story

Many people assume that once a valid will is in place, their estate will be distributed exactly as they intended. In reality, that is not always the case. UK law recognises that strict adherence to a will can sometimes produce unfair outcomes, particularly where someone was financially dependent on the deceased or where family circumstances are complex.

The Inheritance (Provision for Family and Dependants) Act 1975 addresses this. It allows the court to step in and adjust how an estate is distributed in certain circumstances. Understanding how the Act operates and how tools such as Letters of Wishes fit into estate planning can help reduce uncertainty and the risk of disputes.

What is the Inheritance (Provision for Family and Dependants) Act 1975?

The 1975 Act applies in England and Wales. It allows eligible individuals to apply to the court for financial provision from an estate if the will, or the intestacy rules, fail to make “reasonable financial provision” for them.

Importantly, the Act can apply whether or not the deceased left a will. This means that even a professionally prepared Will can still be challenged if someone falls within a qualifying category and can demonstrate that reasonable provision has not been made.

Who can make a claim and on what basis?

Not everyone can challenge a will under the 1975 Act. The right to apply is limited to specific categories of people, including spouses, civil partners, former spouses or civil partners who have not remarried, long-term cohabitants, children, those treated as children of the family, and people who were being financially maintained by the deceased.

The court also distinguishes between different types of claimants. A surviving spouse or civil partner can ask for provision that is reasonable in all the circumstances, whereas other applicants are limited to what is reasonable for their maintenance.

Time limits and practical risks for estates

One of the most critical practical points under the 1975 Act is timing. Claims must usually be issued within six months of the Grant of Probate or Letters of Administration being issued. While the court does have discretion to allow late claims, this should never be relied upon.

This time limit creates risk for executors and beneficiaries alike. Executors who distribute an estate too quickly may expose themselves to personal liability, while beneficiaries may face uncertainty if a claim is intimated late in the process.

What is a Letter of Wishes?

A Letter of Wishes is a separate, informal document that sits alongside a will. Unlike a will, it is not legally binding. Instead, it explains the rationale for certain decisions and provides guidance to executors or trustees on how to exercise discretion.

Because a Letter of Wishes does not have to meet the strict formalities of a will, it can be updated more easily. It can include personal or sensitive explanations that a testator may not wish to include in the will itself.

How Letters of Wishes can help in Inheritance Act claims

Although a Letter of Wishes cannot prevent someone from bringing a claim under the 1975 Act, it can still be highly influential. Courts often seek to understand why a testator made particular choices, especially when a close family member has been excluded or left a smaller share.

A well-drafted Letter of Wishes can demonstrate that potential claimants were considered, explain the background to family relationships, and show that decisions were deliberate rather than accidental or unfair. This context can be critical in blended families or where financial provision has already been made during the testator’s lifetime.

What a Letter of Wishes should, and should not, include

For a Letter of Wishes to be effective, it needs to be clear, specific and kept up to date. It should explain decisions calmly and rationally, address any foreseeable disputes, and reflect the testator’s circumstances at the time it was written.

What it should not do is attempt to rewrite the will, make unrealistic demands, or include inflammatory language. An outdated or poorly drafted Letter of Wishes can sometimes do more harm than good.

Limitations and common misunderstandings

It is important to be clear about what Letters of Wishes can and cannot achieve. They do not override a will, they do not bind the court, and they cannot block a claim under the 1975 Act. They are a supporting tool, not a substitute for proper estate planning.

Relying on informal documents alone, without considering the legal risks created by family circumstances or financial dependency, can leave estates exposed to challenge.

Final thoughts: planning for people, not just assets

Estate planning is about more than deciding who gets what. It is about recognising relationships, managing expectations, and reducing the risk of conflict after death. Understanding how the Inheritance (Provision for Family and Dependants) Act 1975 works, and using tools such as Letters of Wishes thoughtfully, can help bring clarity and reassurance for everyone involved.

Regularly reviewing wills and supporting documents as circumstances change remains one of the most effective ways to avoid disputes and protect those you care about.

Understanding Court of Protection Applications in England and Wales

When someone can no longer make decisions for themselves and has not put a Lasting Power of Attorney in place, the Court of Protection can step in. Applications to the Court of Protection allow decisions to be made about a person’s finances, property, health or welfare, either on an ongoing basis through a deputyship or for a specific, one-off issue. This article explains what the Court of Protection does, when an application may be needed, and what the application process entails.

What is the Court of Protection?

The Court of Protection is a specialist court in England and Wales. It makes decisions for adults aged 16 and over who lack the mental capacity to make certain decisions for themselves. Mental capacity is assessed in accordance with the Mental Capacity Act 2005, which sets out the legal framework for decision-making on behalf of vulnerable adults.

The Court’s role is not to take control unnecessarily, but to ensure that decisions are made lawfully, proportionately, and in the individual’s best interests. The person at the centre of proceedings is referred to as “P” in court documents.

When might an application be necessary?

An application to the Court of Protection is usually a last resort. In many cases, it can be avoided if the individual made a valid Lasting Power of Attorney while they still had capacity. Where no such arrangements exist, the Court can step in to provide authority and clarity.

Applications are commonly made where decisions are required about:

• Mental capacity, for example, where there is disagreement about whether P can make a particular decision.
• Property and financial affairs, such as managing bank accounts, paying bills, or selling a property.
• Health and welfare, although these deputyships are less common and usually limited to specific circumstances.
• One-off decisions, including statutory wills, large gifts, or authority to complete a particular transaction.
• Urgent or emergency situations, such as time-sensitive medical treatment or safeguarding concerns.
• Disputes, where family members or professionals cannot agree on what is in P’s best interests.

Who can apply to the Court of Protection?

Anyone aged 18 or older can apply to be a deputy, although most applicants are close family members or trusted friends. In some cases, particularly where finances are complex or there are disputes, a professional deputy, such as a solicitor, may be appointed.

Whoever applies must be suitable for the role and willing to take on the responsibilities that come with acting under the Court’s authority.

The application process explained

Applying to the Court of Protection involves several formal stages and can take several months from start to finish.

Preparing the application

The application begins with completing the relevant court forms. These usually include:

• COP1, the main application form.
• COP3, a capacity assessment completed by a medical professional or other suitably qualified person.
• COP4, the deputy’s declaration, confirming their understanding of the role and duties.

For property and financial affairs applications, additional financial information is required using COP1A, which details P’s assets, income, and liabilities.

Submitting the application and paying the fee

Once the forms are completed, they are submitted to the Court, along with the application fee. The fee is currently around £400, although fee reductions or exemptions may be available, depending on P’s financial circumstances.

Notifying P and others

After the Court issues the application, the applicant must formally notify P and at least three other people with an interest in P’s welfare. This is a key safeguard, allowing those notified to raise concerns or objections within a set period, usually 14 days.

Court consideration and possible hearings

Once the notification period has passed, the Court reviews the application. In straightforward cases, a decision may be made on the papers. If there are objections, complex issues, or disputes, the Court may request further information or schedule a hearing.

The court order and security bond

If the application is approved, the Court issues an order setting out what the deputy is authorised to do. Before the order becomes final, the deputy may be required to arrange a security bond. This serves as insurance to protect P’s finances against misuse or mismanagement.

Responsibilities after appointment

Once appointed, a deputy must always act in P’s best interests and within the limits of the Court order. The Office of the Public Guardian supervises deputies and must submit annual reports explaining their decisions and how P’s money or welfare has been managed.

The role carries significant legal responsibility, and deputies can be held accountable if they fail to fulfil their duties.

Why legal advice is often essential

Court of Protection applications are detailed, document-heavy, and tightly regulated. Errors or omissions can lead to delays, additional costs, or the application being refused. For that reason, many applicants choose to work with a solicitor experienced in Court of Protection matters.

A solicitor can advise on whether an application is necessary, help prepare the paperwork, manage the notification process, and guide deputies on their ongoing responsibilities. If you are considering an application, speaking to your solicitor at an early stage can clarify the process and make it more manageable.

Love in later life and the inheritance tax trap

January is traditionally a busy month for family lawyers, a time when couples often resolve to start the new year by breaking up, but it’s a pattern no longer confined to younger couples. Divorce among over-60s – often referred to as silver splitters – has become an established trend, reflecting longer lives and changing expectations in later life.

Figures from the Office of National Statistics (ONS) show that divorces amongst those aged 65+ increased by 46% between 2004 and 2014.  And while ONS no longer tracks the ages of divorcing couples, recent research by Legal & General shows that one in three divorces now involve somebody over the age of 50.

But relationships in older age are not just about separation and endings, they are also about the opportunity for new beginnings, and for many that means living with a new partner.

The latest ONS figures highlight just how widespread cohabitation has become. Around 22.7% of couples in England and Wales were cohabiting in 2022, up from 19.7% a decade earlier, while the proportion of people who are married or in a civil partnership has fallen below 50%.

Increasingly, lawyers are seeing couples who have chosen to live together rather than marry, sometimes for many years, without fully appreciating how differently the law treats them, particularly when it comes to inheritance tax and financial protection on death.

Explained inheritance specialist Hollie Smith of Oxley & Coward Solicitors LLP: “What many couples don’t appreciate is that the law draws a sharp distinction between spouses and cohabiting partners when it comes to inheritance. There is no such thing as a ‘common law spouse’ for tax purposes and the financial impact can be huge for the survivor in a couple.”

Under current rules, assets left to a husband, wife or civil partner pass free of inheritance tax, regardless of value. By contrast, an unmarried partner may face a 40% tax charge on anything above the £325,000 nil-rate band. For homeowners and long-term partners, that can translate into a significant and unexpected bill at an already difficult time.

Alongside tax, pension entitlements can also differ, with some occupational schemes paying survivor benefits only to spouses or civil partners.

The issue often only comes to light at a late stage, sometimes when one partner is seriously ill and for some it may mean a rushed, last-minute wedding, with figures showing a steep rise in so-called ‘deathbed marriages’.  The General Registrar’s Office recorded 836 such licences in the 12 months to end of June 2025, a 49 per cent increase on the 561 permits issued ten years earlier in the year to June 2015.

“While marriage is not the right choice for everyone, having a full understanding of the legal and tax consequences of cohabitation is essential, particularly for older couples with property, savings or pensions, and potentially two sets of children each looking to their inheritance,” added Hollie Smith.

“It’s about planning. Whether married, cohabiting or recently separated, taking early advice on wills, estate planning and financial protection can help couples avoid unpleasant surprises and ensure that personal choices don’t carry unintended tax consequences later on, which may be particularly hard on the survivor.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

Leaving Charitable Gifts in Your Will

Leaving a charitable gift in your will is an easy, impactful way to support causes you care about. Whether it’s a fixed sum, a specific item, or a share of your residuary estate, legacy giving can create a lasting difference — and it can be tax-efficient. Gifts to UK-qualifying charities are usually exempt from Inheritance Tax (IHT).

Ways to leave a gift to charity

• Pecuniary gift: a specified sum of money to a named charity.
• Specific gift: a particular item (e.g. property, jewellery, artwork, shares).
• Residuary gift: all or a percentage/share of your residuary estate (what remains after other gifts, debts and expenses).

You can combine gift types and benefit more than one charity. If you want your executors to choose (or choose from a list), ask your solicitor to draft a clear charitable power with a fallback to protect tax relief.

Identifying charities correctly

Avoid confusion by using the charity’s full name, registered address, and registration number. Include a successor/similar charity clause so the gift can still be applied if your chosen charity merges or ceases. (Courts can apply the cy-près doctrine where the original purposes can’t be carried out.)

Inheritance Tax benefits

Gifts to UK-qualifying charities are IHT-exempt. If you leave 10% or more of the baseline/net estate to charity, the IHT rate on the remainder may reduce to 36%. Because the 10% test can be technical (and may be applied to components of the estate), ask your solicitor to word the clause to ‘meet the 10% test’ and model the effect using HMRC’s reduced-rate calculator.

Ensuring your will is valid

Your will must be in writing, signed by you, and witnessed by two people who are not beneficiaries (nor their spouse/civil partner). If your circumstances change, you can make a new will or add a properly executed codicil.

Practical steps and professional advice

• Be specific: make your instructions clear.
• Keep records: tell your executors where the will is stored.
• Appoint executors: people you trust (family, friends or professionals).
• Seek advice: a solicitor can ensure the will is valid, gifts are identified properly, and clauses are tax efficient.

Optional planning tool: Within 2 years of death, beneficiaries may use a Deed of Variation to redirect part of an inheritance to charity; HMRC requires notification to the charity for IHT treatment.

Conclusion

Leaving a charitable legacy lets you support the organisations that matter to you and can reduce your estate’s IHT. For best results, take advice so your will is clear, valid and tax efficient.

What Happens to Your Digital Assets After Death?

In today’s world, our lives are becoming more connected online. From email accounts and social media to online banking, photos, and cryptoassets, our digital footprint can be both financially valuable and personally meaningful. Yet many people neglect these assets when planning for the future. Without suitable arrangements, families and executors can encounter significant difficulties in accessing or managing them.

What Counts as a Digital Asset?

Digital assets refer to any type of electronic data stored on devices or online platforms. Typical examples include:

• Email accounts and cloud storage
• Social media profiles (Facebook, Instagram, LinkedIn, X, and others)
• Online banking, investment and shopping accounts
• Music, film and e-book libraries
• Photos and videos stored on personal devices or online services
• Cryptoassets such as cryptocurrencies and NFTs

Because technology develops rapidly, new kinds of digital assets are likely to emerge, making regular estate planning reviews essential.

Why They Matter in Estate Planning

Unlike physical property, which can be locked away, digital assets are protected by passwords, encryption, and multi-factor authentication. Without prior planning, executors or family members may be unable to access them. This can lead to the loss of sentimental items, such as photographs, or even significant financial value when cryptoassets are involved.

Recording and Managing Your Wishes

To simplify matters, it is wise to:

• Create an inventory of digital assets, including login details and access methods, stored securely.
• Nominate a trusted person to handle your digital estate, sometimes called a “digital executor.”
• Set out your intentions clearly, such as whether accounts should be closed, transferred, or memorialised.
• Address cryptoassets specifically, ensuring private keys and wallet details are passed on safely.

These steps can be included in your will (and, for lifetime incapacity only, in a Lasting Power of Attorney). An LPA ends on death; afterwards, your executors act. Some providers will still restrict access regardless of your documents, so plan to use their bereavement tools.

Access Challenges and Jurisdictional Issues

Even with thorough planning, practical challenges can occur. Many online platforms are global, meaning different legal systems might apply depending on where data is stored. However, if the correct credentials are available, your nominated person should generally be able to act in accordance with your wishes. Executors should use the platform’s formal process with proof of authority (e.g., Grant of Probate/Letters of Administration).

How Online Platforms Respond

Various providers adopt different approaches:

• Facebook and Instagram enable accounts to be “memorialised”, and Facebook allows users to appoint a legacy contact.
• LinkedIn, X (Twitter), and Snapchat do not provide memorialisation services, but accounts can usually be closed upon request.
• Google (including YouTube) offers an “Inactive Account Manager” tool that lets users decide who can access their accounts after a period of inactivity.

These options highlight the importance of taking action in your lifetime to establish preferences.

Planning Your Digital Legacy

Planning ahead for your digital assets ensures that your online presence and valuable data are managed according to your wishes. Just as with property or financial accounts, clear instructions can avoid confusion, disputes, or unnecessary loss.

When you carry out estate planning, it is important to consider not just physical possessions but also your digital footprint. Seeking professional legal advice can help you ensure that your wishes are properly documented, and your digital assets are managed with care.

DIY Probate in England – Understanding the Risks

When someone dies, their estate (property, money and possessions) usually needs to be administered through a legal process known as probate. In England and Wales, probate is the procedure by which the deceased’s will is proven in court and the executors are given authority to distribute the estate. If there is no will, a similar process applies through “letters of administration”.

Although many people instruct solicitors to deal with probate, individuals can apply directly through the courts. This is often referred to as “DIY probate”. While it may seem like a way to save costs, there are several risks that anyone considering this route should be aware of.

What is Probate?

Probate is the official confirmation that a will is valid and that the named executors can deal with the estate. Without a grant of probate (or letters of administration if there is no will), banks, building societies and other institutions will not usually release funds or transfer property.

The law governing probate primarily comes from the Non-Contentious Probate Rules 1987 and the Administration of Estates Act 1925. Applications are made to the HMCTS Probate Service (online in most cases, or by post where required). If the estate is worth over £5,000, the HMCTS application fee is £300; there’s no fee at £5,000 or less.

Why Some People Attempt DIY Probate

There are two main reasons people try to handle probate themselves:

• Cost – those attempting DIY probate seek to avoid paying professional fees.
• Simplicity – In straightforward estates, some executors believe they can manage the process without professional support.

However, even apparently simple estates can have hidden complications.

The Risks of DIY Probate

1. Misunderstanding Inheritance Tax

Executors are personally liable for ensuring inheritance tax (IHT) is calculated and paid correctly. Mistakes can result in penalties and interest being charged by HMRC. Complex rules apply, including allowances, reliefs, and exemptions.

2. Misinterpreting the Will

Legal terminology in wills is not always straightforward. Executors may misunderstand the provisions, leading to incorrect distribution of assets or disputes among beneficiaries.

3. Failing to Identify All Assets and Debts

Executors must ensure that all assets are collected, and all debts are paid before distributing the estate. Overlooking debts or paying beneficiaries too early can make an executor personally liable.

4. Problems with Property

Where the estate includes property, there can be complications such as mortgages, jointly owned property, or an unclear title. These issues often require legal expertise to resolve.

5. Disputes Between Beneficiaries

DIY probate can increase the risk of disputes if beneficiaries feel the estate is being mishandled. Executors can be taken to court for breach of duty.

6. Executor’s Personal Liability

Executors carry significant personal responsibilities. Errors in tax, distribution or administration can result in financial liability, even if the mistakes were unintentional.

When DIY Probate May Be Less Risky

DIY probate might be manageable where:

• The estate is small, and all cash balances are under each institution’s probate threshold (check with each bank/building society)
• There is no property.
• There are a few beneficiaries, all of whom agree on the process.
• There are no tax liabilities or foreign assets.

Even in these cases, care should be taken to follow official guidance.

Balancing Cost and Risk

While solicitors’ fees can seem significant, they can save time, reduce stress and protect executors from costly mistakes. A solicitor can also deal with HMRC and the Probate Registry on your behalf and ensure that the estate is administered in accordance with the law.

Final Thoughts

Probate is a necessary legal process that should not be taken lightly. DIY probate is possible, but the risks can outweigh the savings if the estate is anything other than very simple. Executors should think carefully about whether they have the time, knowledge, and confidence to handle the process themselves.

If you are facing probate, it is always advisable to seek independent legal advice to ensure that the estate is dealt with correctly and to protect yourself from personal liability.

Are you worried about your assets being used for care fees in the future?

Over recent years, fees for care have increased significantly making each person worry about how their assets will be used to pay for their care in the future.

Currently, the average weekly cost of a residential care home is £900 per week. This could mean spending around £47,000 per year just on care fees!

With the majority of people working until the retirement age of 66, it is becoming increasingly more important to protect the assets you have worked hard for from being dwindled away in care fees as you get older. Due to the rising cost of care fees, you can expect your assets to quickly depreciate leaving you with a fraction of what you have accumulated during your working life.

If your property is your biggest asset, you should consider protecting this from being used for care fees in the future. However, it is important to appreciate that if you do need care, it will need to be paid for. Each year, the council has less money than needed to provide for the local area and therefore the money used on care is slowly reducing over time. Having some capital behind you means that you will be able to choose where you are looked after.

Is there a way we can protect our Property from Care Fees?

Yes. At Oxley and Coward, we have a wealth of experience in advising our clients on the best way to protect their property for the future. This often includes a ‘Property Protection Trust’ which we would include within your Will. This is also recommended if you have previously been married as a protection from sideways disinheritance. Keep an eye out for our next blog about this!

What is a ‘Property Protection Trust’ and how does it work?

A property protection trust is a type of trust included within a couple’s Wills to protect a share of your property from being used for care fees in the future. The trust ensures that when the first of you passes away, your share of the property is ringfenced within the trust in the event the survivor goes into care later in life. This ensures your chosen beneficiaries will always benefit from at least half the value of your property, even if you went into care.  The survivor will still own their half which can be used to fund their own care, if necessary.

Does this affect how you live in the property?

No. An amendment may be necessary within your title deeds to change the way you own the property to ‘tenants in common’ rather than ‘joint tenants’. This ensures that your respective share of the property can be placed within the trust on your death and not automatically be transferred to the survivor. However, this does not affect the day to day running of the property and you will not notice a difference while you are alive. You are still able to move properties and downsize if you wish, the trust will just follow any respective properties you owned.

What happens if I don’t do this?

If you wish to discuss the protection of your property further or would like any further advice, please contact our office to arrange a free appointment with one of our legal advisors who would be happy to help.

How to avoid making mincemeat of estate planning

A will that was hand-written on the back of two cardboard food packages has been confirmed as legally binding by the High Court.

In an unusual twist, Malcolm Chenery used a Young’s frozen fish box and a Mr Kipling mince pie box to set out his wishes, leaving his £180,000 estate — including a three-bedroom house, jewellery, and a pottery collection — to the charity Diabetes UK. Despite the unconventional medium and the two pieces of card not being physically connected, the court upheld the will.

Under English law, a will is valid if it complies with the Wills Act 1837, which requires it to be in writing, signed by the person making it, and witnessed by two independent individuals present at the same time.

“While this case highlights that a will doesn’t have to follow a traditional format to stand in court, unconventional approaches often lead to unnecessary stress and costs for executors and beneficiaries,” said Chris Shaw, Wills & Probate expert with Rotherham solicitors Oxley & Coward Solicitors LLP.  “Even with the family supporting the charitable donation, this case caused additional complications.”

Simple preparation can avoid such confusion.  One important step is to organise financial documents and to create a clear list of assets, which should be kept in a place known to the executors and kept up to date . “Executors must obtain valuations for all your assets — whether property, crypto currency, premium bonds, or pottery collections like Mr Chenery’s,” explained Chris Shaw. “Providing account details in advance can save time and stress.”

Delay in sending information about assets to HM Revenue and Customs following a death can have serious financial consequences. Executors are personally accountable for handling estates correctly, including paying inheritance tax (IHT) on time. IHT is due within six months of the month of death, with HMRC charging 7.5% interest after that time. Delays can result in penalties and mounting costs, which beneficiaries might expect executors to cover from their own funds.

Executors must also act within two years to claim some of the tax-free allowances for married couples or civil partners, who can combine allowances to pass up to £1 million tax-free. Missing this deadline can reduce the inheritance beneficiaries receive.

While the exemption for gifts between spouses is ‘absolute’ and does not have to be claimed, the transferred nil rate band does have to be claimed, and this is where the two year time limit applies.

“Think of estate planning as a gift to your loved ones,” added Chris Shaw. “Discussing your plans with family — whether they’re included or excluded — can help avoid disputes and ensure your legacy is handled smoothly. Attention to detail now can make a world of difference later.”

Tips to make things simple for your executors

An executor is legally responsible for carrying out the instructions set out in a will.  Executors may be family, friends or a professional, but they must make sure everything is done correctly at every stage, from collecting details of all the assets, reporting to HMRC, obtaining probate, through to distributing money and other assets to beneficiaries.  Agreeing to the role and having the opportunity to discuss your wishes will help them prepare, together with some other simple steps:

1. Draft a clear, valid will

Ensure your will complies with all legal requirements and reflects your wishes clearly. Anything that could lead to disputes should be checked and ideally discussed with those involved. Consider consulting a solicitor to ensure all bases are covered, including provisions for guardianship, specific bequests, and how you want to share your estate.  Whatever the cost of having a will drawn up by a professional, it will be small when compared with the costs involved if the validity of a home-made will is questionable.

2. Store your will securely

Keep your will in a safe but accessible place and inform your executors where it is stored. Options include a solicitor’s office, a bank’s safe deposit box, or a registered will storage service. Avoid storing it in a place that could be overlooked or difficult to access, such as a personal safe with an unknown combination.

3. Review and update regularly

Life events — such as marriage, divorce, the birth of children, or a significant change in assets — can affect the validity or relevance of your will. Regularly reviewing your will ensures it remains aligned with your current wishes.

4. Consider your digital assets

In today’s digital age, estate planning must include online accounts, digital assets, and even social media profiles. Leave instructions for accessing important accounts and consider appointing a digital executor if necessary.

5. Plan for taxes

While the tax-free threshold for inheritance tax (IHT) is £325,000 in the UK, estates exceeding this may be liable for significant tax payments. Proper estate planning can help mitigate IHT liabilities, for instance, by using exemptions, gifts, or trusts effectively.

6. Communicate with executors and beneficiaries

Discussing your plans with all involved reduces misunderstandings and surprises later. Executors should understand their responsibilities, and beneficiaries should be aware of your intentions to help manage expectations.

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

Open your mind and secure the future

By : Trusts Expert  Chris Shaw, Oxley & Coward Solicitors LLP, Rotherham

There are few certainties in life, but as American statesman Benjamin Franklin famously wrote, two things we can be sure about are “death and taxes”.  Yet planning for our ultimate demise, or our decline along the way, is something that we frequently ignore and put off for another day.

It gets put off because thinking about death is difficult and complicated, or because of worries about the costs involved, or because people imagine there is no need.

Recent research[1] found that 42% of adults in the UK have not spoken to anyone about what should happen to their estate when they die, and a quarter of those surveyed said it was too morbid.

When questioned about their later life planning, around a fifth of those aged over 55 said they weren’t dealing with the issue because they had no concerns about what happened when they had gone.

But without a will, you can’t make sure that your family will be cared for in the way you would wish.  There is a persisting myth that a ‘common law’ partnership will provide security for couples who have not gone through a marriage or civil partnership ceremony.  But in fact, without a will nothing would go to the surviving partner, it will all pass to children, or if there are no children, then it will go to family, such as parents or siblings.

So, if you’re not married and have significant assets such as property in sole names, then a will really should be top of your list.  It’s also particularly important where there is a second marriage, with children from previous relationships.

The other vital element of this future planning is to think about who would manage your affairs and make decisions if you have an illness or accident that leaves you incapable of looking after things yourself.

Again, no one wants to think about how they may potentially lose themselves or a close relative to dementia, but the statistics force us to face up to the reality:  one in two of us will be affected by dementia in our lifetime, either by caring for someone with the condition, developing it ourselves, or both.  And the number of people living with dementia in the UK is predicted to exceed 1.5 million[2] by 2050.

Another common fallacy is that there is some automatic right for spouses, civil partners or children to look after finances when someone loses mental capacity or becomes unable to deal in person.   But there is no such right – the only certain way that relatives or trusted friends can handle your affairs is to sign a Lasting Power of Attorney while you are mentally capable and to register it with the Office of the Public Guardian.  The alternative is that the Court of Protection will appoint deputies, and the deputy may be someone who does not know the individual.

A Lasting Power of Attorney (LPA) is a document by which someone can give another person legal authority to make decisions and act on their behalf.  It can be used when someone has become mentally incapable of handling matters themselves or if they want someone to act when they have issues in dealing with matters in person.

As a legally binding document, recognised by banks and other financial institutions, an LPA for property and finance allows the person appointed to make financial decisions on behalf of the individual if they are unable to make those decisions themselves, running bank accounts and paying bills as well as managing property, pension, taxes and investments.  For those who are self-employed or a company director, an attorney can be appointed under a separate LPA limited to business matters.

In contrast, a health and welfare LPA cannot be used until mental capacity has been lost. It covers matters such as where someone lives, decisions on medical care and consenting or refusing life sustaining treatment.

Anyone over 18 can set up an LPA, and at any point during their lifetime, as long as they have ‘mental capacity’ to make the decisions involved in drawing one up.  The person appointed to act is known as an attorney and will often be a family member or friend who is available to help manage day-to-day affairs.  Professionals can also be appointed as attorneys if there is no suitable friend or family member.

And while vital for the vulnerable and those who are housebound or unable to conduct their own affairs, a financial property and financial affairs LPA can be used as soon as it has been registered, as long as the person who granted the LPA agrees.  This means they are equally useful if an individual is regularly out of the country and wants someone to act for them while they are away, or for a person suffering from physical disability, or where someone has all their faculties but does not want to have to deal with everything themselves.

The process of applying for an LPA has become much simpler since an online system was introduced a few years ago, but there is concern about the impact of a dramatic rise in the number of lasting powers of attorneys submitted for registration, leading to huge backlogs and delays.

Figures from the Office of the Public Guardian, the government body responsible for registering lasting powers of attorney, reveal in their latest annual report that the number of applications rose to 1,073,032 applications in the year reported.  This surge in applications and the resulting delays reflects a continuing catch-up from the Covid pandemic when just 691,746 were made in the year 2020/21.

It’s worrying to see the delays, as without an LPA in place it is much more difficult for anyone to step in and manage affairs once someone has lost mental capacity.  The only option is to go through the slow and costly process of applying for permission to act on someone’s behalf through the Court of Protection – this process is also affected by delays of many months, and even when a Court-appointed deputy is in place, actions by the deputy may have to be approved by the Court.

The other alarming statistic is the rise in the number of applications being rejected by the OPG, often because individuals have drafted their own terms or permissions, and these are outside those allowed.

An LPA is an essential element of lifetime planning and it’s the only way you can be sure that someone of your choice is able to deal with your affairs and make decisions for you.  But these are critical documents so it’s important to get professional advice and build in the right protections from the outset.  Expert knowledge can ensure you have an LPA that reflects your wishes and protects against possible financial abuse.

There may be uncertainty ahead, but the two certainties you can control are how your assets are handled when you can’t manage them yourself and ensuring that inheritances are secure and go to those you care about.

So, to paraphrase Benjamin Franklin, “nothing is certain, except your will and your LPA…!”.

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

[1] The National Will Register

[2] Alzheimers Research UK

Common Myths about Inheritance Tax Planning: Busting the Misconceptions

Inheritance tax planning is a crucial aspect of financial management, yet it is often shrouded in misconceptions and myths. As the New Year begins, it’s an opportune time to debunk these common misunderstandings and shed light on the realities of effective inheritance tax planning. In this article, we’ll address and dispel some of the prevalent myths surrounding inheritance tax, providing clarity for individuals and families seeking to secure their financial legacies.

Myth 1: Inheritance Tax Only Affects the Wealthy

One of the most pervasive myths is that inheritance tax is only a concern for the wealthy. In reality, the threshold for inheritance tax is applicable to a broader range of estates. Understanding the current thresholds and exemptions is essential for effective tax planning, regardless of the size of your estate.

Myth 2: Giving Away Assets Automatically Reduces Inheritance Tax

While gifting assets can be a legitimate strategy for reducing inheritance tax, it’s not a one-size-fits-all solution. The timing and nature of gifts, as well as the relationship between the giver and receiver, can impact their tax implications. It’s crucial to seek professional advice to navigate the complexities of gifting and ensure compliance with tax regulations.

Myth 3: A Will Alone Is Sufficient for Inheritance Tax Planning

A well-crafted will is undoubtedly a cornerstone of inheritance tax planning, but it’s not the sole solution. There are various strategies, such as trusts and lifetime gifts, that can complement your will and enhance your overall tax planning. A comprehensive approach that considers all available options is essential for maximising tax efficiency.

Myth 4: Inheritance Tax Can Be Entirely Avoided

While there are legal ways to minimise the impact of inheritance tax, completely avoiding it is a misconception. Inheritance tax is a legitimate tax levied on the transfer of assets, and attempting to evade it through questionable means can lead to serious legal consequences. It’s essential to focus on lawful strategies to manage, rather than entirely eliminate, the tax burden.

Myth 5: Inheritance Tax Planning Is a One-Time Activity

Inheritance tax planning should be viewed as an ongoing process, not a one-time event. Changes in personal circumstances, tax laws, and financial landscapes may necessitate adjustments to your inheritance tax strategy. Regular reviews and updates are critical to ensuring that your plan remains effective and compliant with the latest regulations.

Myth 6: Inheritance Tax Planning Is Only About Property

While property is a significant consideration in inheritance tax planning, it’s not the sole focus. Other assets, such as investments, savings, and personal belongings, are also subject to inheritance tax. A holistic approach that considers all aspects of your estate is crucial for developing a comprehensive tax strategy.

Conclusion

As you embark on inheritance tax planning in the New Year, it’s essential to separate fact from fiction. Dispelling common myths surrounding inheritance tax allows for a more informed and effective approach to securing your financial legacy. Consult with legal and financial professionals to develop a personalised and legally sound inheritance tax plan that aligns with your unique circumstances and goals.

Chancellor’s hat has rabbits and polar bears but no elephants  

The Chancellor’s autumn statement ended with a flourish when Jeremy Hunt closed his speech by pulling a two per cent cut to the national insurance rate for employees out of his exchequer hat.

This will see the rate paid by employees reduce from 12% to 10%, with similar cuts announced for the self-employed, with the abolition of class 2 contributions and a one per cent reduction on class 4 contributions, which will go down to 8% from 9%.

Jeremy Hunt also confirmed a widely anticipated decision to make permanent what is known as “full expensing” for businesses.  This is a 100% first-year allowance for companies to claim a deduction from taxable profits for qualifying plant and machinery assets.

And there was £500m of funding towards establishing the UK as an AI powerhouse, following the recent international summit hosted by PM Rishi Sunak on the topic, to enable further innovation centres to be developed, similar to those already established in Edinburgh and Bristol.

The Chancellor’s hour-long delivery was framed as an ‘autumn statement for growth’ and opened with forecasts from the Office for Budget Responsibility (OBR) that headline inflation will fall from its current level of 4.6% to 2.8% by the end of 2024, and to the government’s 2% target in 2025.

But the OBR has downgraded its predictions for economic growth.  It now expects the economy to grow by 0.7% next year and by 1.4% in 2025, in a significant reduction from previous forecasts, which were 1.8% for 2024 and 2.5% for 2025.

And while the plans for national insurance and full expensing for business were widely circulated in advance, one topic that didn’t rate a mention, despite inspiring many column inches before the day, was inheritance tax (IHT).

“It’s the elephant in the room as far as chancellors are concerned,” said trusts expert  Mrs Jayne Jackson  of Rotherham town solicitors Oxley & Coward Solicitors LLP. “It is brought up as a potential target for tax reform before each budget, but never gets a mention when it comes to the day.  In fact, it’s probably better described as a polar bear, as the nil rate band has been frozen for so long it’s forming its own glacier!”

They added:  “People are fearful of the bills they will leave for their families, but the reality is that many who worry fall well below the threshold at which IHT is payable.  But with IHT charged at 40 per cent it’s certainly worth doing a regular check on where you stand, as those who could be liable can minimise their liability by taking advice and planning ahead.”

Last year, the Chancellor continued the IHT nil rate band freeze at £325,000 until April 2028, the residence nil-rate band at £175,000, and the residence nil-rate band taper continued to start at £2 million.

Each person can pass on a maximum of £325,000 in assets tax free when they die, including shares and property. There is an extra £175,000 allowance when the main home passes to a direct descendant.  If someone is in a marriage or civil partnership, they can leave everything free of IHT to their partner, and when the second partner dies, two allowances are added together when calculating whether tax is due on the combined value of the estate.

Ways to reduce the size of an estate for inheritance tax purposes while someone is alive include making gifts, either into a trust or to individuals.  A gift to an individual paid out of capital is not taxed at the time of the gift and will become wholly exempt if you live for seven years after the date of the gift.  A gift into a trust is taxable at the time of the gift if its value is over the nil rate band – though the life-time rate, at 20%, is much lower – and again the value of the gift will drop out of account after seven years.  Gifts can also be paid out of surplus income, where someone is able to maintain their normal lifestyle without the cash, or by making use of the automatic allowances, which include an annual exemption to allow gifting of up to £3000, together with a separate small gifts allowance of up to £250 per person.

Added Mrs Jayne Jackson:  “Trusts certainly need specialist advice and even gifts can be complicated, with good record keeping essential, but often the hardest part is simply doing the sums and finding out what options might be available.  For many of us, like the chancellor, dealing with inheritance tax liabilities is something we keep putting off.”

More detail from the Government about the autumn statement is available here

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

Clear language is critical in will drafting

Three children have won a share of their father’s £700,000 estate after a hard-fought case that reached the High Court in London.

The siblings took action when their father Kenneth Grizzle died and they found they were excluded from his will.  They told the court that he was illiterate and he could not have understood the will he had signed, but had always been too proud to tell others of the problem.

Sharing memories of their father struggling with reading, they claimed he must have disinherited them by mistake when leaving everything to his two children from a later relationship. The judge agreed, and all five half-siblings will now receive an equal share of the estate.

While being illiterate and unable to read the document offers relatively unusual grounds nowadays for disputing a will, the importance of clear language and understanding is a vital consideration when writing a will, if families wish to avoid later challenges.

Research conducted on behalf of the Society of Trust and Estate Practitioners among members, professionals who advise on asset management and inheritance planning, highlights the change to family structures in recent years, and how this leads to increased disputes.

They describe a significant shift from traditional married couples towards a complex mix of structures, including cohabitation, same-sex relationships and transgender relationships.  The family model has changed too, with rising divorce rates leading to single parent families, re-marriage leading to ‘blended’ families with children from previous relationships, and the rise in non-biological children.

The report says that advisers are finding that this increased complexity is leading to conflict and breakdown in family relationships, giving rise to litigation. And, importantly, of those responding, 65% highlighted the problem of old-fashioned or unclear language being used in wills, trusts and deeds opening the door to later challenges.

Explained inheritance law expert Mr Christopher Shaw of Oxley & Coward Solicitors LLP in Rotherham: “These shifting family structures mean we tend to see more complex relationships, which are more likely to lead to competing interests between family units and different generations.  When relationships break down, the grounds on which a family may have stayed united and supportive of inheritance plans can be broken too.  If the fine detail in a will or trust is not updated, with clear language, through the passage of family changes, this can be a cause for challenge.”

Generally, a will may be challenged because it fails certain grounds for validity, such as lack of mental capacity or not being properly witnessed.  A valid will may also be disputed under the Inheritance (Provision for Family and Dependants) Act 1975, if an individual can demonstrate they were dependent and should have been provided for.

Mr Shaw added:  “A person making a will must have ‘knowledge and approval’ of its contents and it’s much easier to show understanding if plain language is used.  And even if plain language is used, a word might mean one thing in a legal or dictionary sense, but another thing in the mind of the person making the will. For example, ‘child’ has quite a narrow definition legally, but someone might think it could include step-children.”
Another risk area from imprecise language is for those who have changed gender.  The Gender Recognition Act 2004 includes provision for those named as a beneficiary to be recognised as their acquired gender, rather than their sex at birth, where the will was made after 4 April 2005 and the person has been issued with a gender recognition certificate.

Problems could arise if the will was drafted without specifying the names and grounds for inheritance of all concerned, for example if certain assets were to be shared between ‘sons’ or ‘daughters’ and the transition removes an individual from their intended inheritance.

Mr Shaw added:  “Where the birth name or previous gender is included, this should not affect the validity of the gift to that person, as the legislation has provided for that situation.  Problems may arise if the identity of a beneficiary is not clear.  That’s why language is so important.”

The Gender Recognition Act came into effect on 4th April 2005. Before this, a change in gender was not recognised by the law, so an individual would still be treated as their birth sex in any will made before that date.

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

Protecting and passing on your digital memories to your loved ones

In June, the Society for Trust and Estate Practitioners (STEP) launched a new “Protect your Digital Memories” campaign. The campaign aims to increase awareness and encourage people to protect their digital memories. STEP is calling for both the government and digital service providers to do more to help people put plans in place and also provide support to families and loved ones wanting to gain access to a deceased’s account.  But why is protecting your digital assets and memories so important?

In this article, we look at why it is worthwhile to put plans in place that protect your digital memories for your loved ones when you pass away and how you can do this.

Why should I think about protecting my digital memories?

In 2022, so much of our lives and memories are digitally stored in photos, videos, social media accounts, emails, and cloud storage – to name only a few. But, just like physical and monetary assets, digital memories can be as important to people.

In what circumstances might my loved ones need to access my digital accounts?

There are a number of circumstances where your family and loved ones may need to access your digital accounts should you pass away or lose capacity, including:

• To access things that hold sentimental value to you or your ones
• To protect your privacy
• Take care and safeguard any financial property you might have.

Unfortunately, many people are unaware of what will happen to their digital memories and assets should they become incapacitated or pass away. Without adequate planning, these could be lost forever or create further problems down the line.

How to protect your digital memories

There are several steps that you can take that are fairly simple but could prove extremely helpful to your loved ones further down the line.

Update your legacy settings

Many social media and internet platforms that we use daily, such as Apple, Google and Facebook, have tools allowing you to decide how your account can be accessed when you are no longer here or can do so yourself.

If you do not nominate a legacy contact, accounts can be very difficult, potentially impossible, to access.  Updating your legacy settings should only take a few minutes, but doing this will give you the peace of mind that these accounts can still be accessed.

Communicate with your loved ones

While no one wants to think about a time when you are no longer here or cannot make decisions for yourself, it is important to talk to family and friends about your wishes. Having these conversations now can save a lot of time and stress for your loved ones in the future. Out of these discussions, you may even start sharing things with them now, such as photos and videos.

Use cloud storage

Cloud-storage makes it easy to store and back up your digital files, including important information and more sentimental items. Keeping everything in the cloud and ensuring your loved ones can gain access to this can make things a lot easier when you are no longer around.

Seek legal advice

If you have any concerns about what might happen to your digital estate, you can also contact a legal adviser to advise you on how to plan effectively.

How has Covid-19 affected inheritance tax?

There is still much uncertainty about the true impact of coronavirus on all aspects of our lives. Inheritance tax is no different, with the fallout of the pandemic affecting the value of estates, inheritance tax planning, and the valuation of business assets inheritance tax has been affected both directly and indirectly. In this article, we look at some of the ways inheritance tax has been affected by the Covid-19 pandemic.

Will inheritance tax rise to cover Covid-19 costs?

According to the National Audit Office, the government has spent in excess of £372 billion on supportive measures related to the pandemic. As a result, the Chancellor must implement measures to offset this expenditure. But will this cause a rise in inheritance tax? The answer is complicated. While the rate of inheritance tax and the thresholds for liability will remain the same, the number of estates liable to pay inheritance tax is increasing.

In January 2022, new statistics from HMRC revealed that £4.6bn in inheritance tax was paid to the Government between April and December. That represents a £600m increase when compared to the same period in 2020. But why?

Increased value of estates

Currently, inheritance tax is charged on the part of the deceased’s estate that is above £325,000 at a rate of 40%. However, the UK’s housing crisis and soaring property prices mean that more people than ever are becoming liable to inheritance tax charges.

Lack of inheritance tax planning

The increased value of estates has an impact on people from all walks of life. Many people who would have never expected the value of their property or other assets to exceed the inheritance tax threshold are failing to properly plan for inheritance tax and take steps to mitigate their bill.

Similarly, the pandemic has sadly caused thousands of sudden deaths. Many people may never have even considered estate planning because they were previously in good health.

How to mitigate your inheritance tax bill

But there is some good news when it comes to inheritance tax. With proper estate planning and a properly drafted will, you can take steps to dramatically mitigate your inheritance tax liability. For example, when you leave your home to a descendant in your will, the threshold is increased by £175,000. That is a huge potential tax saving.

If you are concerned about inheritance tax, you can put your mind at ease by discussing your concerns with an experienced estate planning solicitor who will advise you on your specific circumstances.

Oxley & Coward – How has Covid-19 affected inheritance tax?

Contested probate – how and why wills can be contested

Distributing the estate of a deceased person is a challenge that often results in legal wrangles between family and friends, especially if they feel that they haven’t been included in the will or have been ‘short changed’ in some way. This can lead to family arguments and even a challenge to the will itself. But under what conditions can a will be challenged and how do you go about doing so? Here, we take a brief look at situations where a will might be challenged.

Five principal justifications for challenging a will

1. Invalid will

To be valid, a will must be written and then signed in the presence of two witnesses, neither of whom can be beneficiaries of the will. If there is evidence to suggest that any of these conditions have not been met, it will be possible to contest the will.

2. Lack of capacity

A will can only be legitimately made by an individual who understands the significance of the act and the consequences to their estate of doing so. This means they understand how the estate will be broken up and who will benefit after they have died. It ensures that a will was made by an individual who was in a competent mental state, and if there is any doubt over that fact, it can be challenged.

In recent years, it has become one of the most common justifications for contesting a will, largely due to the increasing number of dementia diagnoses among the elderly.

3. Undue influence

Undue influence may rise when someone has put pressure on the person writing the will to include clauses or bequests that they would not have included if they were writing the will free of any outside influence. As well as being mentally competent, the will-maker needs to make decisions by themselves and without any coercion. If someone else – whether they are a beneficiary of the will or not – tries to pressurise the will-maker to change the contents of a will, it can be justifiably challenged.

4. Financial maintenance

This is probably the biggest single factor for wills being challenged. If an individual was financially dependent on the deceased when they died (for example, a child or spouse) then it may be possible for them to challenge the will if they think that the will doesn’t make ‘adequate provision’ for them. To do so they must meet the following two conditions:

• The claim must be made within six months of the Grant of Probate being issued
• The claimant must meet the criteria for a claimant: this includes a spouse or civil partner, a former spouse or civil partner who has not remarried, a co-habitant who had lived in the deceased’s house for two years prior to their death, offspring, and any other individual who was financially maintained by the deceased before their death.

5. Fraudulent wills

A will can be challenged because of doubts over the legitimacy of the will or a signature. If the will itself or a signature may have been forged, it is open to the challenge.

How to challenge a will

Typically, the most important factor in challenging a will is time. The earlier you are able to begin the process, the better. From the outset, our advice is to get help from a legal expert who specialises in contested wills as quickly as possible. This is such a complicated and difficult field that it’s almost impossible to make any headway without that all-important legal help. If you feel you have legitimate grounds to challenge a will, whether that’s financial reasons, or there’s doubt that the person made the will with the full understanding of what they were doing, then the first thing your solicitor will do is to request a copy of the will from the executor.

Once that happens, a letter of claim can be filed contesting the will, which will need to detail the reasons why the person is challenging the will in the first place. This is usually for any one of the reasons listed above, although one of the most common reasons is that a dependent such as a child or direct relative feels that the will does not make ‘reasonable provision’ for a spouse or children.

Even if the claim goes to court there is no guarantee that the court will overturn the bequests laid out in the original will. If they find that the will makes adequate provision for a spouse or child, and that the person was in their right mind when they made the will and was not subject to any coercion, then the original will stands.

Conclusion

Contesting a will can be a long and complex process that requires a great deal of expertise and experience. Due to the extremely personal nature of the events surrounding inheritance, it’s a process that’s typically both emotionally charged and difficult to approach with the required impartiality. For this reason, we recommend employing the assistance of legal professionals who specialise in wills and in particular contested probate.