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When Can The Property Of A Deceased Person Be Sold?

When someone dies, there is often a question left hanging for relatives about when their property can be sold. There is no single answer to this, but instead the timeframe will depend on certain circumstances. The first thing that needs to be done is to work out how the property is owned. If there is another owner’s names on the deeds, for example, and they are living, then the property can’t be sold without their permission.

The easiest way to find out how a property is owned is to order an official copy of the register. This will come from HM Land Registry, but remember that not all properties will be on this register; if a property has not been sold for many decades, which is entirely possible, then it may not be registered at all. Another point to bear in mind is that even if you do have the deeds they may not be the most up to date if they are extremely old.

There are a number of ways in which a property can be owned. It could be in the sole name of the deceased, or join names with someone else. It could even be ‘tenants in common’ with another person (or sometimes multiple other people).

If the property is owned solely by the deceased, then a grant of probate will be needed before the property can be transferred or sold. Any inheritance tax due on the property must be settled before the grant of probate can be issued.

Any property that is owned as tenants in common will also need a grant of probate before anything can be done with it. However, it is important to note that all owners must be participants in the same unless you are only selling the deceased’s share of the property.

If the property is owned jointly, then no grant of probate is required. The property transfers directly to the surviving owner and if they wish to sell the property they can do without any special permissions required. Remember that the Land Registry must be informed that there is now just one owner of the property rather than two, as this makes selling much easier.

Although the property can’t be sold until probate has been granted, it is a good idea for those who are expecting to inherit the property to get it ready for sale during this time (assuming they want to sell it at all). This will make it much quicker to put it on the market when the time comes. Start by clearing the property of the deceased’s belongings, and carrying out repairs and decorating work.

You can even start marketing the property and look for a buyer, although they must be made aware that the property cannot be transferred to them until probate has been granted.

Contesting A Will Due To Lack of Capacity

Anyone who is over the age of 18 and who is of ‘sound mind’ (that is, has sufficient mental capacity) may make a will. However, if someone believes that the testator was not of sound mind and therefore did not have the mental capacity to know what they were doing when they made their will, they may wish to contest it.

In fact, this reason for contesting a will is increasing, and it may have something to do with the number of people developing various forms of dementia. As people live longer, the chances of them developing a disease such as Alzheimer’s, for example, increases. It seems to follow, then, that there may be a case to contest some wills made be these people. However, it will all depend on when they made the will – before or after their diagnosis, for example.

It’s not just dementia that means someone has a lack of capacity. This problem could come from a head injury, substance abuse, other mental illnesses, or even other medical conditions. The way that it is determined whether someone has a lack of capacity or not goes back to Banks v Goodfellow in 1870. The story behind this is that the testator had been confined to an asylum, and when he was released he developed a severe fear that he was being followed everywhere he went. Despite this, he made a will (and managed his own financial affairs). When he died, the court determined that his will was valid because, although it was clear that he was suffering from some kind of mental illness, it had had no bearing upon the will itself. That is, if he had not had the illness, the will would have been the same.

In general, a court will assume that someone has the capacity to make their will unless they are otherwise informed – with evidence – that this was not the case. The burden of proof falls on the person who made the allegations, and the evidence that they need to supply includes statements about the testator’s general behaviour as well as how far the will strays from their usual behaviour in tone and the information within it, information from the solicitor who prepared the will (assuming there was one), statements from friends and family, and evidence from medical practitioners.

Do You Want A Living Will?

More and more people are making use of the idea of a living will. They are becoming a lot more popular than they have ever been in the UK, and they do, for a lot of people, make sense. They offer people the chance to make their own medical decisions even if they are in a coma, or incapacitated in some way that means they cannot speak, or even think for themselves.

The living will is written when the testator is well so that if they become unwell they have already made their decisions as to what they want to happen to them. By writing these instructions down in a living will, rather than simply telling family and friends, there can be no doubt as to what is expected to happen, and no confusion at an already difficult time. It’s not just family and friends who will benefit from knowing that there are instructions to be adhered to in such a situation; medical professionals will also be able to use it to give the best care that they can.

Living wills are of most use to those who are suffering from terminal illnesses, but can also be used in the event that you are in a coma, for example. They will let the medical staff know whether you wish to be resuscitated if you stop breathing or your heart stops beating, and whether or not you want to be kept alive on machines should the worst happen.

It is possible to change your living will at any time, but if you do change it then the medical practitioners and your family must be made aware, otherwise they may look to the older will, if they even know such a will exists at all.

6 Alternatives to Burial

Not everyone likes the idea of their bodies (or the bodies of their friends and families) being buried. And some religions don’t allow it either. In the past, one of the very few legal alternatives (in the UK) was cremation, but these days there is a lot more choice. Here are just a few of these new ideas.

Cryonics

There is a lot of research going on into cryonics at the moment, and it certainly does has a lot of exciting features going for it when it comes to what happens to us after we die. Cryonics means that the body is frozen without the tissue being damaged, and the people who choose this method of ‘disposal’ (the body is actually kept in storage) are usually the ones who are hopeful that medical discoveries in the future will allow them to be brought back to life. Right now, although the freezing procedure is possible, we are no closer to bringing anyone back from the dead.

Tree Planting

Tree planting would happen after a cremation – the ashes would be placed into soil with a tree seed and then planted. The ashes wouldn’t affect the tree’s DNA or growth, and it’s good for the environment because the more trees that are planted the better. It also means that loved ones have a specific place to come and remember you out in nature.

Aquamation

Aquamation is for those who don’t like the idea of cremation or burial, but understand that something has to happen to their body. Aquamation is the process of using water rather than fire to speed up the deterioration process of the body.

Space Burial

At the moment, a space burial is a costly idea, but an interesting and increasingly popular one nonetheless. You can either have your ashes or – for more money – your entire body launched into space on a rocket. It’s not particularly eco-friendly, but it is exciting!

Dissolution

Dissolution is the process of the body being put into a tank of chemicals that cause it to dissolve quickly. Sometimes the body is dismembered first, depending on the size of the tank. This is not a pleasant thought, but if you are looking for a fuss-free way to dispose of your own body after death, this idea might suit.

Promession

This method of disposal is ideal for those who want to do something for the planet even after they have passed away. This is the process of being turned into fertiliser. It works by freezing the body in liquid nitrogen and then the body being crushed into powder. This powder is then mixed with compost or sprinkled on plants.

How Can You Protect Your Business when You Die?

When you first start thinking of writing a will and estate planning, it’s likely that what you’ll think about first is your personal assets such as your property and bank accounts. You might not think about your business at all. However, what would actually happen to it if you died? Here are some important facts to consider.

Business Property Relief

Did you know that there is a specific inheritance tax relief for businesses? It’s called business property relief (BPR) and it means you can get 100 percent relief on the value of any shares you own in an unquoted business, as long as you have had the shares for at least two years before you die. There is also 50 percent business relief on land, buildings, or machinery owned by the business. This is useful to know if you are thinking about selling or transferring business shares during your lifetime – inheritance tax is charged on the transfer if it happened within seven years before death.

Inheritance Tax Planning

It’s important to speak to a professional when it comes to finding out more about inheritance tax and the planning that can and should be done around it. You will want your estate – and that includes your business – to be as protected as possible for your family who would otherwise have to pay a lot of money to the government. This is why planning everything in advance is a good idea; it may not be fun, and it may not be pleasant, but it is something that needs to be done, the earlier the better.

Business Lasting Powers of Attorney

What can really help when you own a business is to put a business lasting power of attorney (business LPA) into place. This means that someone else will be able to step in and keep your business running when you are unable to do so anymore. This could mean death, but equally it could mean should you have a debilitating accident or develop an illness that made it impossible for you to work.

What Can Executors Do About Missing Beneficiaries?

It is the executor’s duty to fulfil the terms of the will, and distribute the estate as they are meant to, but what happens if they can’t find one or more of the beneficiaries who should be receiving part of the estate in question? They are under a legal obligation to take all reasonable steps to ensure that they have looked for the missing beneficiary and this includes:

Find Genealogists

Genealogists or heir hunters can be instructed to look for those who are missing if they are beneficiaries of a will. They have many different tools at their disposal to do this and, matched with their experience, they should be able to find the person you are looking for. 

Missing Beneficiary Insurance

If, in very rare instances, the missing beneficiary cannot be found even with the help of heir hunters, there is a type of insurance – missing beneficiary insurance – that can be obtained. This will need to come from specialist insurers. The executor will need to complete a detailed form that requires them to know about the estate and they need to prove that they have done what they can to trace the beneficiary. They may also have to provide a full family tree.

Apply To The Court

An executor will be able to apply to the court in order to obtain a Benjamin Order. This means that the court makes an order that distributes the court differently to what was written in the will, and it assumes that the beneficiary has died.

A CPR Part 37 Payment

If the executor prefers, he or she can make a payment to the courts under the CPR Part 37 scheme. This means that the portion of the estate that would have gone to the missing beneficiary instead goes to the courts in a trust for that person should they be found. Everyone else who is interested in or entitled in the estate or money should be informed that this has happened.

It’s Your Will… But You Still Can’t Say What You Like

There are some things that can’t – or shouldn’t – be included in a will. There are various reasons for this, some of which are legal ones, some a common sense ones, and some are simply because you cannot instruct someone to do something that is against their will (and/or against the law).

Although your last will and testament is your own personal document, allowing you to decide who will receive what from your estate, it should not necessarily be used as a way to send final messages. There are other ways to do this, including letters and notes for your solicitor.

In your will, you cannot leave a property that is in joint tenancy to someone not named on the lease. This is because when you die, the person who shares the joint tenancy with you will automatically receive your share of the property (even if your will says otherwise). The same is true for a trust, or for life insurance that has a named beneficiary – these are legal items and your will does not take precedence over them if you name someone different.

It is also a good idea not to put funeral instructions in your will. Although this might seem like the perfect place to write them down, often wills are not read until after the funeral, which is the first item to organise once a person has died. Because of this, important last wishes could be missed. Therefore, it is better to discuss with your family and friends exactly what you want at your funeral, and perhaps to leave a note with your executor so that your final goodbye will be exactly as you hoped.

Although it is possible to put conditions on bequests, if they are illegal, or if they mean that the beneficiary must marry a particular person (or divorce their current spouse), or change their religion will not be enforced. And you must bear in mind that, although you might have put these provisions on a gift (ie that the money must be used for a specific use), no one is able to ensure that this actually happens.

Arranging special care for someone through your will is not ideal. The best way to do this is through a trust, which means that the required money will be specifically set aside.

Finally, you cannot leave gifts to a pet in your will, as they are not legally able to own anything. Instead, you can ensure that you leave the care of the pet (and possibly some money with which to do it) to a specific person. A trust fund could also be used for this purpose.

Should You Choose Burial Or Cremation? Write It Down!

If you have written a will (or even – perhaps especially – if you haven’t), did you include in it any instructions about what you want to have happen to your body after you die? Did you express any particular wish about either cremation or burial (or another option) for example? If not, this might be something worth considering since not having this information can cause upset and disputes between family members when they are trying to make a decision.

Knowing how and even where to lay you to rest will save any rows at an already emotional time. But since talking about death and what comes next isn’t something everyone is comfortable talking about, writing the instructions in your will or in a separate letter to be opened in the even of your death (which is kept with your will) can help immensely.

It can come as a surprise to find that your next of kin doesn’t automatically get to choose where you are buried or cremated. That responsibility actually falls to your executors first, assuming you have a will. Without a will it will be the administrators who make the decision. If there is no one else, then it could even be the owner of the premises in which the person lived – so perhaps your landlord could choose what happens to your body. Finally, the local authority may take responsibility for you. It will all depend on your personal circumstances when you died. If you write down what you want then there will be no confusion and no arguments. It can all just be dealt with peacefully.

Why You Could Be At Risk From An Unregulated Will Industry

You may think that one company offering wills is as good as any other, but this is where mistakes can be made. There can be problems if you don’t research the company first and look at the reviews and opinion of other people who have used them. This is because the will writing industry is still unregulated (although there are calls for this to be changed) and that means that anyone can set up a company offering to prepare wills for people.

Without the experience and knowledge that is required to write a will, however, this could be a dangerous thing to do for everyone involved.

What you may not realise is that if you have a will written by an unregulated, unqualified, and probably uninsured company or individual, it could very easily be poorly drafted leading to a confusion when it is executed. It could even be negligently drafted, resulting in probate issues and fines. Plus, a disreputable will writing company will often try to sell their most expensive products, most of which are not required, taking many thousands of pounds from potentially vulnerable people.

Using a qualified solicitor can solve this problem because you will know you are getting someone to work on your will who knows exactly what they are doing and who will be able to write a will that is clear, straightforward, and can be acted upon (even if the estate is a complicated one). The problem with using solicitors is that they are expensive, and when so many other places offer such good prices… it can be hard to resist.

In the end, the choice is yours and it will depend on your budget to some extent as well as the confidence you have in your research skills in order to find a will writing company that will do a good job and that is experienced enough to know how to deal with your estate. If you feel unhappy or pressured at any time, or if the costs are not what you had thought, then step away – there are many other companies to look at.

Why You Should Review Your Will

It’s a reasonable assumption to think that once you have written a will you don’t need to think about it again, but as with many things in life, it’s always worth reviewing every now and then just to make sure it’s what you still want. In fact, there are some circumstances in which reviewing your will is absolutely essential.

New Beneficiaries

If new beneficiaries enter the picture (a new baby, perhaps, or a friend who you want to leave something to) then you will definitely need to update your will. Of course, if your will simply states that you want your estate to be divided between your children, this will generally include any born after the will is written. However, if you want something specific to go to any child (or anyone else) then you will need to add it in a revision.

You Come Into Money

If you come into money after you write your will it is a good idea to review it and make sure that it is exactly what you want, bearing your new found wealth in mind. Money can change everything, and whether that’s a good thing or not, your will may be one of the things that also needs to be changed. You might find that you can give money to more people, for example, or that you want to provide for your spouse or children differently, such as writing your estate into a trust, for example.

Divorce

When you get divorced you may no longer want your ex-spouse to receive any part of your estate when you die. Alternatively, you may want to give them a certain amount of money after you pass away. In either case, you will need to update your will to reflect this.

Your Spouse Dies

If your spouse died before you do, you should update your will (assuming you wanted your estate to go to them in the event of your death). If you have written a mirror will, however, this will usually be accounted for – although it never hurts to check.

You’ve Changed Your Mind

Things sometimes happen to make people change their minds about who they are leaving items or money to in their will. A falling out or a reconciliation, for example, can both mean that your will should be reviewed and changed where necessary.

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