Frequently Asked Questions
If you have any questions about the services we offer, please don’t hesitate to contact us on 01795 477505 or email us and we will get back to you as soon as possible. Alternatively, you may find the answer to your question below in our frequently asked questions section.
Wills & Probate
Can I contest a will?
A will can be contested on the following grounds:
- If the deceased was not in their right mind when making or signing the will
- If the will was made incorrectly or signed without witnesses
- If the will or signature was forged or fraudulent
- If the person was coerced or under duress when making the will
Only those who have a legal right under the Inheritance Act can legally contest a will. Therefore, you must be:
- Direct family member
- The deceased’s spouse
- A financial dependent of the deceased
- A creditor of the deceased
- Someone who was named a beneficiary in a previous copy of the will
- Someone who was promised something by the deceased, but not included in the will
If you’d like to find out more about the process of contesting a will, contact Ratcliffes Solicitors on 01795 477505. We specialise in wills and probate, especially where probate is contested. Find out more about our wills and probate services in Sittingbourne.
What do I need to do when someone dies?
Once a person has died, you will need to register their death and obtain a death certificate. If they left a valid will, they will likely have named an executor to deal with their affairs. The executor will usually need to apply for probate. At this stage, it is best to hire a probate solicitor to guide you through the process.
If there is no will, a person who is closely linked to the deceased can apply for a grant of probate to make them an administrator of the person’s estate. Read this guide from the Money Advice Service for more details.
Can solicitors be executors of wills?
You can choose your solicitor to be the executor of your will. In fact, you can choose up to four executors, allowing for both family and professionals to act on your behalf. It is wise to appoint a solicitor as an executor, particularly when the estate is large or especially complex. A solicitor can navigate legal requirements and the laws around property and tax efficiently, making the process easier for all involved.
Can a will be changed?
Yes, provided you have sufficient legal and mental capacity, also known as ‘testamentary capacity’. You can change your will at any time. It is wise to regularly review your will in case your family or financial situation changes.
For significant changes to your existing will, you might want to write a new one and revoke the old one.
Can a will be handwritten?
As long as the handwritten will meets all the legal requirements, it will be a valid document.
It is important if you are handwriting your will, that it is clear enough for others to read.
A will must be signed by the testator in the presence of two witnesses, who must also sign. For it to be considered valid, it should also contain a deliberate statement of intention to distribute the testator’s property after their death.
What is a living will?
A living will is also known as an advance decision. Should there come a time when you can no longer make or communicate decisions on your own behalf, a living will direct others as to your wishes. This covers things such as refusing treatment or specifying care. It is legally binding.
If you decide to make a living will, you should write it down if possible and give a copy to your loved ones and those responsible for your care, including your GP. For refusing potentially life-saving treatment, you will need to have this signed and witnessed.
Can I write my own will?
Anyone who is over 18 and has ‘testamentary capacity’ can write a will. However, we always recommend speaking with a will writing solicitor who can advise you of all legal requirements and ensure the will adequately communicate your wishes.
Using a solicitor when writing your will means having peace of mind that your wishes are covered and that nothing will go wrong.
Can I make provision for child custody in my will?
If you have children or dependents under age 18, you may wish to appoint a guardian in your will. A guardian will receive custody of the child(ren) should you pass away before they reach adulthood.
We highly recommend that you make these provisions if you have children.
Do I need a witness?
The law in England and Wales states that a will must be signed in the presence of two independent witnesses. If this criterion is not met, the will is not valid.
The purpose of a witness is so that if the will is challenged, they can testify to the circumstances surrounding the will’s execution. Therefore, a witness should be a competent adult. They should also be independent, meaning spouses, beneficiaries and their relatives or indeed any family member, are not suitable.
What happens if I don’t have a will?
If you pass away without leaving a will, your property will be distributed under the ‘rules of intestacy’. The rules are as follows:
If you are married (or in a civil partnership):
- If the estate is worth under £250,000, the surviving spouse will automatically inherit the full estate.
- If the estate is worth over £250,000, the surviving spouse will automatically inherit personal effects and £250,000. The remainder of the estate will be divided in half, with half going to the spouse and the other half divided amongst any children (or their descendants). If no children were left, the spouse gets the estate in its entirety.
If you are not married/in a civil partnership:
- If the person left children, their estate will be divided equally amongst them (or their descendants if they have died).
- If the person left no children, their parents will inherit, followed by siblings, grandparents, uncles and aunts.
- Partners of the person will not automatically inherit anything (this includes ‘common law’ marriages).
Having a will ensures your wishes are followed in terms of who gets what after you die.
If you have children, social services will decide where to place them, as without a will there will have been no guardian appointed.
What is an executor?
An executor deals with your estate after your death. They are typically chosen by you and will be responsible for locating your assets, paying off any debts or expenses and distributing the estate to your named beneficiaries.
You’ll need at least one executor. Although, you may wish to appoint more than one if you have a large or complex estate. Up to four executors can act at the same time. You can also appoint reserve executors if needed.
An executor can be anyone, including beneficiaries, so long as they have sufficient mental capacity and are over the age of 18. For complex estates, hiring a professional executor is advisable.
Where should I keep my will?
A will is an important document and therefore should be kept secure at all times. Your executor should know where it is kept and how to access it. Most people choose to leave their will with their solicitor or will writing service. You can also choose to store it with the Probate Service. You may be charged a small fee for the storage of your will.
You can keep your will at home. But, remember you must keep it safe and your executor must know where it is at all times. If the will cannot be found, your wishes won’t be granted.
What is probate?
Probate covers the settling of a person’s estate after they have died.
When a person dies leaving a will, they will typically have appointed someone to act as their executor and administer their estate. This administration process is known as probate and can involve distributing assets and paying off any debts. An executor must apply for a grant of probate, giving them legal authority to handle the estate.
In most cases, probate is a legal requirement.
Can probate be contested?
If you have a legal interest in the deceased’s will, you can contest probate. This means either you are a beneficiary, you were financially dependent on the deceased, you are owed money by the estate or you were promised something (property or other assets) by the deceased.
This may be because you are unhappy with the treatment you received in the person’s will. You may wish to contest probate on the following grounds:
- The testator (person making the will) was not of sound mind at the time the will was made
- The testator was coerced into making or signing the will
- The will was incorrectly drawn up, witnessed or signed
- The will is fraudulent or a forgery
If you plan on contesting probate, you must do so as swiftly as possible as there is sometimes a strict time period that must be adhered to. Ideally, you should raise any claims before probate has been granted.
How do I contest probate?
If you want to contest probate, the first thing you should do is to seek legal advice. An experienced solicitor will be able to review your claim and confirm whether you are eligible to contest.
For those who are eligible, your solicitor can then help you lodge a ‘caveat’ to the Probate Registry office. This ensures that the dispute must first be resolved before probate can be completed. A caveat lasts for six months, with the possibility of renewal for a further six months.
Ideally, the dispute will be resolved out of court, either through mediation or another form of dispute resolution. Avoiding court is generally preferred as court fees can be very expensive.
If, however, the dispute cannot be settled out of court, your solicitor can help you submit a formal court claim. Your claim may be against the validity of the will or that it doesn’t make sufficient provision for you (or on someone’s behalf such as the deceased’s children).
Contesting probate where there is no will is more complicated. Where there is no will, the rules of intestacy apply (see above). In this case, you should seek expert legal advice to determine whether you can still contest probate.
If you are responsible for probate or are a direct beneficiary of a will and need advice defending claims made against the estate, speak to a trained solicitor.
How long does probate take?
The length of probate will largely depend on the size and complexity of the person’s estate. International probate can take even longer, as it involves different jurisdictions. It is generally thought that on average, probate takes between 9 and 12 months from start to finish. However, delays can occur if there are any disputes during the process.
Property & Conveyancing
Why do I need a solicitor when buying or selling a house?
The sale of property involves a certain amount of legal work to be carried out to meet requirements and ensure the transaction is valid and completed in full. This is known as conveyancing. It is wise therefore to hire an experienced conveyancing solicitor who can deal with the legal side of things on your behalf. For friendly local conveyancing solicitors in Sittingbourne, contact Ratcliffes today.
What is conveyancing?
Conveyancing involves the transfer of property from one party to another. Exchanging contracts is the legal process that commits both the buyer and seller to the sale of the property. Until this occurs, the sale is not legally binding. A conveyancing solicitor will ensure that the deeds are transferred legally.
How much are conveyancing fees?
The cost of conveyancing will depend on the property value, whether you are buying or selling and whether it is a leasehold or freehold property. At Ratcliffes, our conveyancing fees vary for properties valued up to £300,000, £300,001 to £500,000, £500,001 to £1 million and over £1 million. You should also take into account other fees such as disbursements, search fees, HM Land Registry and Stamp Duty. You can see all of our conveyancing quote estimates on our website. To find out more, contact us on 01795 477505.
What are conveyancing searches?
Conveyancing searches (also known as property searches) are investigations your conveyancing solicitor will undertake to find out more about the property you wish to buy. The results of these searches include important information you’ll need to know before committing to purchase, such as planning permission granted in the area, access rights and drainage. It’s important that these searches take place before the exchange of contracts.
There are three main conveyancing searches: local authority, water and property, and environmental. Additional searches may be needed, depending on your lender and the location of the property. Your solicitor will be able to advise you on this.
Can conveyancing fees be added to my mortgage?
Your conveyancing fees will need to be paid upfront, so they can’t be added to your mortgage. Your mortgage lender may cover your mortgage conveyancing fees. However, they may stipulate that you use a particular conveyancing solicitor. Some lenders may offer home buyers cashback to cover conveyancing after mortgage completion.
How does conveyancing work?
Once you’ve hired a conveyancing solicitor, you will receive a contract to sign that covers the terms of the appointment, including fees. Next, the solicitor will contact the seller’s solicitors to give them notice and obtain a copy of the proposed contract, as well as any relevant property information.
Your solicitor will study the contract and raise any potential issues with the seller’s solicitor, before commencing the property (conveyancing) searches. They will report the results of these searches to you and advise you where necessary.
A conveyancing solicitor will also look at your mortgage offer, examining the conditions to ensure everything is correct and legal.
Before you exchange contracts, your solicitor will have thoroughly reviewed the contract draft, ensuring all enquiries raised have been resolved and that everything with the property is as expected. They will also agree a completion date between you and the seller.
The exchange of contracts will then be carried out on your behalf by your solicitor. They will lodge an interest in the property, effectively freezing the property deeds for 30 working days, giving you time to pay the seller and apply to the Land Registry to transfer the deeds to your name.
After completion, your solicitor will pay Stamp Duty on your behalf and send a copy of your title deeds to your mortgage lender.
How long does conveyancing take?
The length of the conveyancing process depends on several factors. For a straightforward case, conveyancing should take around six to eight weeks. In some exceptional cases, conveyancing can be shorter. While, in others, the process may take much longer if, for example, it takes longer to retrieve the relevant documents from other conveyancers. Your solicitor should be up front with you about the process, but unfortunately will be unable to give an exact timeframe.
What reason do I need to get a divorce?
Currently, there are five possible grounds for divorce which include: adultery, unreasonable behaviour, desertion, living apart for more than two years (with agreement) and living apart for more than five years (without agreement).
What is unreasonable behaviour in divorce?
Unreasonable behaviour is the most common of the facts used for demonstrating a marriage which has irretrievably broken down. It involves giving examples of behaviour that demonstrate the relationship has broken down and you are no longer able to live together. Reasons can include refusing to spend time together to having no common interests.
What is the divorce process?
To begin the divorce process, one or both parties will need to file a divorce petition. You can apply online and will need to pay a court fee. The petition will be sent to your spouse. If the petition is acknowledged, the acknowledgement is sent back to the court and the petitioner. If it is not acknowledged, the petitioner can arrange for the respondent to be served with the documents. The petitioner can then file for a decree nisi, which will be considered by a judge. If the petition is accepted, a decree nisi is pronounced. After six weeks and one day, the petitioner can apply for a decree absolute. Once granted, the decree absolute is issued and the divorce is final.
For advice and guidance on issues surrounding divorce and other matrimonial matters, speak to Ratcliffes, local family lawyers in Sittingbourne, Kent.
Can divorce proceedings be put on hold?
If you and your spouse decide to reconcile, you can choose to withdraw your divorce petition. If you have a decree nisi, you should contact their solicitor to inform them that you are not going through with the divorce. Divorce proceedings can be stopped at any time until the decree absolute is granted.
I have just received divorce/dissolution papers from my spouse, what do I need to do?
This means that your spouse or partner has issues divorce proceedings. You now have 14 days to acknowledge the petition with the court to confirm that you have received the paperwork and whether you agree to the divorce going ahead. It is extremely important to check the wording of the petition as in some circumstances the respondent is liable to pay the other parties costs in obtaining a divorce.
Can we separate formally without getting a divorce?
Yes, if you have decided to separate but do not want to consider a divorce for the time being, a separation agreement is strongly recommended. Such an agreement will set out what you both agree should happen to the matrimonial home, and all other assets such as savings and investments, endowment policies and pension funds. This means that there are no loose ends which could cause a problem later on. Also, maintenance for children can be agreed in such a document. The courts can enforce all aspects of a separation agreement if needed.
Do I have to wait for a specific period of time before I can issue a petition?
There is a rule that you are unable to petition for divorce until you have been married for one year. After that date, you can issue a petition based on unreasonable behaviour or adultery at any time. But you would have to be separated for a full two years or five years, for either a two year or five year separation divorce.
How long does a divorce take?
If you agree on your divorce and the reasons why, getting a divorce legally finalised will usually take 4 to 6 months. It might take longer if you need to sort out issues with money, property or children, which will have to be done separately.
Is legal aid available?
The Government has now withdrawn Legal Aid from the vast majority of divorce cases. It is, however, still available in very limited circumstances which involve domestic violence. Ratcliffes does not accept legal aid.
What do I need to issue a petition?
You will need the original certified copy of your marriage certificate, the court fee or if you qualify for a fee remission from the court, a fee exemption form from the court, and of course instructions for us to complete the divorce papers. If you were not married in the UK and your certificate is not in English, you will need a certified translation and an affidavit confirming the accuracy of your translation. If need be, we can arrange for this, but extra costs will be incurred. Also, if there have been any previous court proceedings we will need the court orders.
Can I still get a divorce if there are ongoing proceedings relating to our children?
The court does have the power to order that the Decree Absolute should not be granted until the court is satisfied with the arrangements for the children.
What type of court orders can be made regarding children?
A Supervision Order is where a child is placed under the supervision of the Local Authority, but this does not give it parental responsibility. The child is not taken into care and remains with the parents, with the local authority being legally obliged to offer support and assistance to the child and his/her family. An Interim Care Order is a temporary care order which gives social services parental responsibility for a child, which they then share with the parents. It means that social services can decide where a child will live while the court proceedings are continuing.
What happens if we can not agree with whom the child should live?
The focus should always be on what is in the best interest for the children. If this cannot be agreed, the court can decide for you, but will encourage you to attend mediation first.
What are my rights to see my children?
Contact rights are generally the right of the children and not the parent. Provided that there is not a risk of harm to the children, contact will be ordered by the Court. It is best to negotiate contact arrangements by direct discussions or by attending mediation to agree on the way forward. If you cannot agree, an application can be made to the Court.
Do I have to go to court to reach a financial settlement?
A settlement can be negotiated between the parties, with assistance from their solicitors, without the need to go to Court. This can help minimise the legal fees incurred by both parties. If an agreement is reached this way then it will be checked by the Court to ensure that it is reasonable and endorsed by them to make it legal.
What am I entitled to?
This is a difficult question. This area of law is very complex and flexible, with the court having a very wide discretion indeed as to the order or orders that it can make. The Court will have to delicately balance the needs of both parties and the children. We would recommend that both parties would need specialist legal advice in this respect.
I’ve received a speeding ticket, been flashed by a speed camera or was caught speeding. What happens now?
The Police will need to send a Notice of Intended Prosecution to the driver or registered keeper within fourteen days. The Notice of Intended Prosecution will give you the full details of the offence and will also require you to name the driver of the vehicle. Once you have received the Notice of Intended Prosecution, you have 28 days to reply.
If the speed was below 10% plus two over the mph over the limit, the Police will generally take no further action. If your speed was no more than 10% plus 9 mph over the limit, you will usually be eligible for a speed awareness course, provided you haven’t done one within the last three years.
If you already have 9 or more points, or your speed was too high for a fixed penalty, you won’t be eligible and will receive a summons or Single Justice Procedure Notice. The number of points will depend on the speed. If you reach twelve penalty points the Court has to disqualify you for at least 6 months.
I have just been involved in an accident – What do I need to do?
First of all, ensure that you have taken note of the third party’s details such as their name, phone number, vehicle make, model and registration. If possible, get their insurance company details as well. You will need to notify your own insurance company that you have been involved in an accident, even if you were not at fault for the accident.
If the accident wasn’t my fault, why should I notify my own insurance?
Under the terms of your insurance policy, you are under an obligation to notify your insurer of any accidents that you have been involved in, whether it was your fault or not.
What happens if I am involved in an accident with someone who doesn’t have insurance?
We can submit your claim to the Motor Insurance Bureau, which is an organisation which was set up in 1946 to deal with accidents for victims of accidents involving uninsured or untraced drivers.
What can I claim for?
If you have been in an accident that wasn’t your fault and suffered as a result, you could have a claim. Whether you have a major injury or just minor conditions as a result of the crash, you could claim compensation.
Typical road traffic accident claims focus on injuries such as:
- Broken Bones
- Head, brain and spinal injuries
- Organ damage
- Soft tissue injuries
What Happens to my no claims bonus and insurance policy express?
If the accident wasn’t your fault your no claims bonus will not be affected. If you claim for your vehicle damage through your own insurance company, you may be liable to pay your insurance policy excess – however, we can claim this back on your behalf as part of your personal injury claim.
What evidence will I need for a car accident injury claim?
If you have been in a car accident and believe you may have a claim for compensation, then doing the following can help your case:
- Call the police to report the incident so there is an official record of the event.
- Take photos of any damage and the surrounding area.
- Take photos of any injuries immediately and a few days later (once bruising has appeared.)
- Take notes about the accident such as time and weather conditions.
- Keep copies of any prescriptions or receipts related to your medical care.
- Ask your employer for a letter verifying the number of days you have missed during your recovery and how much income you lost as a result.
What is the legal alcohol limit for drivers?
The alcohol limit for driving in England & Wales is:
- 35 micrograms of alcohol per 100 millilitres of breath
- 80 milligrammes of alcohol in 100 millilitres of blood
- 107 milligrammes of alcohol in 100 millilitres of urine
In many other countries, including Scotland, the limit is even lower.
I have been caught drink driving. What is the minimum ban?
The minimum ban if convicted of drunk driving is usually 12 months. However, the ban maybe longer, depending mainly on how far over the limit you were. The court will also take into account other factors, such as any bad driving and any previous convictions.
How long does a drink driving conviction stay on my licence?
Eleven years from the date of conviction. If you commit another drink driving offence within 10 years, there is in most cases a minimum three-year ban. The ten years are counted from the date of offence.
I have been caught drug driving. What is the minimum ban?
The minimum ban if convicted of drug driving is usually 12 months. However, the ban maybe longer, depending mainly on how far over the limit you were. The court will also take into account other factors, such as any bad driving and any previous convictions. The ban cannot be reduced by attendance on an education course.
In relation to driving whilst on illegal drugs such as cannabis and cocaine the legislation follows a “zero tolerance” approach.
I have been caught using my mobile phone whilst driving. How many points will I get?
In most cases, you will receive six penalty points as well as a fine. If you reach 12 points for mobile phone offences committed within three years of each other, you are at risk of disqualification for at least six months under the totting system.
I am a newly qualified driver and passed my test less than two years ago. What happens if I get 6 points on my licence?
If you receive six or more points for one or more offences committed within two years of passing your first driving test, your licence will be revoked and you will have to take your practical and theory tests.
However, if you are disqualified, even for a very short time and you do not receive points, your licence will not be revoked and you will not have to retake your test.
Am I legally required to carry any documents with me in the car?
The law requires you produce your driving documents within 7 days, not immediately. In any event, if a police officer stops you and asks you to produce your documents it is likely he will still require at the time.
Can the police stop my vehicle even when I have done nothing wrong?
Yes, the police have wide powers to stop anyone at any time. They do not need to give you a reason and if you fail to stop that is an offence.
You may be asked to produce your
- Driving licence
- Insurance Certificate
- Vehicle Registration
If you don’t have these with you, you’ll be given seven days to produce them at a police station. The police may breathalyse you if they reasonably suspect you have been drinking or that you have committed an offence while your vehicle was moving.
What counts as “exceptional hardship”?
There is no statutory definition of exceptional hardship and it is up to the court to decide on the circumstances of each case.
What are the differences between dangerous, careless and inconsiderate driving?
Careless driving is established if the driving fell below what would be expected of a careful and competent driver.
It becomes dangerous driving if it falls far below that standard, for example:
- Racing on the roads
- Aggressive driving
- Being avoidably and dangerously distracted by your passenger
- Driving with an arm or leg in plaster or impaired eyesight
- Driving a vehicle that has a dangerous defect
Inconsiderate Driving Includes:
- Flashing lights to force other drivers to give way unnecessarily
- Staying in the overtaking lane
- Failure to dip headlights
- Actions such as driving through a puddle to splash pedestrians.
What happens if I get caught driving without having renewed my insurance?
In addition to a fine, disqualification for any period will be considered. If you did have insurance but failed to renew, the court might not disqualify, particularly if it is satisfied that failure to renew was an oversight. If there was an accident, however, the court may lean towards disqualification and can also order compensation to be paid to the victim.
How long do traffic offences remain on my licence?
An endorsement stays on your driving licence for four years from the date of conviction, with the exception of these three types of offence which remains on your record for 11 years from the date of conviction:
- Drinking, or drugs and driving
- Causing death by careless driving while under the influence of drink or drugs
- Causing death by careless driving, then failing to provide a specimen
Can I get legal aid?
If you are being charged with a criminal offence, you may be entitled to legal aid if you are under 18 or receiving certain benefits. You may also be means-tested to determine whether you are eligible.
If your case is a civil matter, you must demonstrate that the dispute is serious and that you cannot cover the costs yourself. Costs may have to be repaid however, should you win your case. Legal aid is only available for some civil matters such as family and children, housing and discrimination. You can check your eligibility on the government website. Please note that Ratcliffes Solicitors do not currently work on legal aid cases.
Can solicitors certify documents?
A solicitor can certify a document that is a true copy of the original. This includes passports, letters from the government, bills or driving licences. However, the solicitor cannot be related to you, in a relationship with you or living at the same address. A nominal fee will be involved.
Do you make home visits?
Yes, we can make home visits and also offer some weekend appointments. Home visits are typically used for services such as will writing and lasting power of attorney. If you cannot get to our offices, you can get in touch with us and request a home visit.
Which areas do you serve?
We work with clients throughout Sittingbourne and the surrounding areas, including Faversham, Sheerness, Gillingham, the Isle of Sheppey, Newnham and Rainham. To book an appointment with a member of our team, contact 01795 477505 or email us.