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 directs 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 lifesaving 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 communicates 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 criteria 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.
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.
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 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.