Whilst your business is unlikely to be a claimant or defendant in contested probate proceedings, you might be.
What is contested probate?
Contested probate is any dispute which involves the administration of an Estate following a person’s death. Contesting probate could involve a dispute relating to the validity of a Will on the basis that it was not properly executed, which means it was not signed or witnessed as it should be, or as to the validity of it where a person may have been unduly influenced or lacked the requisite mental capacity.
A contentious probate could also be a claim against the Estate where a person has been financially dependent on the deceased and they died without a Will or the Will did not leave sufficient provision for them. This is usually more common where the deceased was not married but had a Partner or in second marriages.
One area which is always ripe for litigation is that of claims by Beneficiaries against Executors.
If you are asked by someone to be their Executor, should you agree?
As an Executor to someone’s Estate, it is very important to know what your duties and responsibilities are. Agreeing to be an Executor is therefore not a decision that should be taken lightly. Some of the things that you can and cannot do as an Executor may be obvious to you but you can easily fall short of Beneficiaries’ expectations and face challenges in the way you are handling the Estate.
You should also bear in mind that even when someone asks you to be their Executor, it does not follow that you will also be included as a Beneficiary and therefore you are agreeing to a lot of work and responsibility for no financial gain.
You are probably more likely to find yourself named as Executor in relation to close family, e.g. your parents or your siblings’ estate. This does not mean there is any less chance of running into conflict.
Whilst you may already be aware of the usual responsibilities of an Executor including registering the death, arranging the funeral, valuing the estate, paying any IHT, applying for probate, sorting out the deceased’s finances, distributing the monies and keeping estate accounts, there may be other responsibilities for which you will have sole responsibility and need to make decisions which are not agreed by all but in the best interests of the estate.
This could involve the sale of Estate property such as the former family home and this may lead to disagreements between the Beneficiaries as to whether the property should be sold or rented out, and if it is to be sold, what it should be sold for and to whom. One thing to be aware of is that you cannot favour one beneficiary over another.
Another issue is whether you as Executor may purchase Estate property. To be clear this is called ‘self-dealing’ and there is a prohibition on this such that a Beneficiary can retrospectively set aside a purchase by reason of conflict of interest. This territory should therefore only be entered into with the express authority of all Beneficiaries.
There are many other areas that can result in claims against an Executor, failure to act quickly in respect of volatile assets such as shareholdings is only one of a long list
Nadia Halliday, our contentious probate solicitor, has a wealth of experience in advising Executors such that they can feel confident in the decisions that they make and the responsibilities they hold. If you are an Executor who is facing dispute or criticism by the Beneficiaries or a disgruntled Beneficiary and need to seek advice and reassurance call for a free initial no-obligation discussion.
Call us at 0800 088 6004 for information and advice on contentious probate.