A Will is a written document that specifies where and to whom you wish your property and possessions (otherwise referred to as your ‘Estate’) to be distributed in the event of your death.
Although Wills have a reputation of being complex, this need not be the case. Some Wills, however, require specialist legal knowledge and advice for your specific wishes to be reflected and carried out. A skilfully drafted Will can be a solid foundation in the overall management and administration of your family wealth.
It is not unusual that professionals and executives instructing our wills and probate barristers on other matters do not have a written plan of how they wish their assets to be distributed when they die. It may be that you have not given sufficient attention to what could be done during your lifetime to ensure the most efficient transfer of wealth.
This carries the significant risk of leaving your Estate, finances and assets at the mercy of UK intestacy law, which you and your family may have no control over. It is therefore vital to take timely advice and plan ahead in order to safeguard the wealth that you have worked hard to accumulate.
For example, without a formal Will, an unmarried partner does not have automatic entitlement to key aspects of the Estate; assets may have to be sold; and specific family members may be disinherited inadvertently. Often beneficiaries become embroiled in entirely avoidable contentions probate litigation that has been known to bankrupt otherwise solvent Estates.
At Mercantile Barristers our members regularly advise on and draft a variety of Wills and trusts for the benefit of our clients, including but not limited to: court approved Wills for those lacking capacity to make a Will; appointment of Executors; making of cash and specific property legacies; distribution of the remainder of an estate; all available inheritance tax reliefs and exemptions; setting up trusts; and ‘Living Wills’.
At least one executor (but ideally two) must be appointed in your Will, who is responsible for managing your estate to its conclusion and must ensure its contents are followed exactly. Clients can choose who may be an executor of their will and candidates range from the legal adviser who advised and/or drafted their will, to a close family friend or relative.
An executor owes a duty to all beneficiaries of the Estate to perform a variety of tasks and obligations including: administering the Estate with due diligence and in accordance with the terms of the Will; acting reasonably and prudently in relation to the estate property; distributing the proceeds of the estate to the beneficiaries; putting the interests of the beneficiaries before those of the executors; taking all proper steps to protect the assets of the decease; and in some instances selling the assets of the estate.
It is also not uncommon that after drafting a Will, your circumstances and the law in general may change. If so, it is imperative that your Will changes too and is therefore kept up to date. Our wills and probate barristers are available to advise you on the important decision of selecting your executors; the Executors themselves in making the correct decisions for the benefit of the Estate.
Our members understand the strain that comes with administering an Estate, principally if it has caused a rift within a family. It is not surprising that you may not have time to administer an entire estate yourself. Our suitably experienced barristers can offer their support or recommend equally qualified and experienced advisers and professional administrators to provide assistance on as much or as little of the estate administration as is required, from full administration to obtaining letters of administration.
It may be that you want to contest the validity of a Will because you do not agree with an Executor’s decision, which may be contrary to the deceased’s wishes. Our barristers are used to advising on Wills in Solemn Form; Rectification of Wills; Professional negligence claims relating to Wills, Trusts and Estates; the interpretation of Wills; Invalid Wills and letters of wishes (e.g. undue influence, lack of capacity); invalid execution of Wills; and forged or fraudulent Wills.
Our barristers can also provide expert advice if there have been alleged breaches of an Executor’s duties. This may lead to applications to remove or replace an Executor, an order that they make good any losses suffered by the estate, or an order that they must take a specific action in relation to the estate.
At Mercantile Barristers our member have and continue to act on behalf of beneficiaries, family members, step children, common law spouses, executors and administrators, and always seek to resolve matters out of court where appropriate. If court action is necessary, we are suitably equipped to receive instructions on contentious probate claims regarding, undue influence, lack of capacity, or the doctrine of promissory estoppel.
The first step to instructing a barrister on your behalf is to provide us with some background information to your case. Our clerks are massively experienced and can help point you in the right direction.
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