SOME areas of law allow the lawyer in question to deal with something nice. For example setting up a new business, buying a house, or receiving an inheritance from an unknown relative who left a handsome sum to a client.
That last example would fall under probate law. Lots of probate however is less pleasant. Families torn apart fighting over who gets what from a deceased mother. Children taking one another to court over specific items of furniture.
If you are reading this as a lawyer, you already know whether you need a solicitor, barrister, or both. Or neither.
If you are not a lawyer however, and you find yourself in the murky waters of contested probate law, things can get very complicated, very quickly. It is an obvious, but important point, that a dead person cannot deal with his or her own affairs. So, someone needs to step into the deceased’s shoes. That person is the representative of the deceased.
A person may die with a Will, or may die intestate (i.e. without a Will). With a Will means you start from whatever is in the Will. No Will? Intestacy rules apply.
For many, this is the stage at which a decision is made to seek out a probate solicitor. There are some truly excellent probate solicitors, and I have had the pleasure of working with many of them in Kent, London, and beyond. Knowledgeable, considerate, and very hard working, these lawyers really do lighten the load for personal representatives.
Probate law is divided into two types of work: contentious (where people are, or soon will be fighting about who gets what either under the contents of, or in the absence of a Will) and non-contentious (where there is no dispute as to who gets what, but there is still a minefield of procedure to get through).
It is always a good idea to seek legal advice when it comes to probate. I repeat myself but I do it deliberately – there is a minefield of procedure to get through. To the unsuspecting personal representative, things can go very wrong very quickly.
Often, a good solicitor will be ample assistance. Contested probate however can become a little more tricky. If a matter looks like it might go to court, there are a number of questions to consider. Will the fees of the contesting parties come out of the estate? If this goes to court, who is likely to win? What will the costs be? Etc. etc.
Court is (usually) the domain of the barrister. I, for example, spend a large part of my waking life in and around court buildings, arguing cases. There is however another aspect to my probate work, which is becoming more and more popular- the probate conference.
A conference is just lawyer-speak for a meeting. The idea is that the solicitor, barrister, and client get together, perhaps at Becket Chambers in Canterbury, Dartford, Eastbourne, Maidstone, or Tunbridge Wells, to discuss the case, or potential case. At this meeting, we can cover the likelihood of having the estate pay the costs, and who is likely to win at court.
Chances are that the excellent probate solicitor being used knows the procedure and law in detail. But I, as a barrister, am the one in court. I am the one researching, and making use of, the cases that have gone before. Add me, or any probate barrister to the mix, and advice can be given on all the matters discussed above, as well as tactics including what not to do.
Sometimes, a barrister can be utilised through the Direct Public Access Scheme (contact my clerks at firstname.lastname@example.org for information) to give advice on prospects of success, or how to go about starting a probate claim. Generally speaking though, probate is, in my opinion, one of those areas where a client is best served by a solicitor and (if needed) a barrister.
For those of us who do not relish the idea of an afternoon in a stuffy barrister’s chambers (although please note Becket Chambers often receives compliments on the modern, 21st Century approach we take), barristers can advise in writing. This is called an “opinion” or “advice”.
One area of law making a lot of headlines at the moment is inheritance law, or “Inheritance Act Claims”. Depending on who you speak to, some will say this is an area of family finance law, and some will declare it to be probate. As it happens I, and a number of my colleagues cover both areas of law, and would be happy to help if required.
Please contact the clerks for more information, and ask for the probate (or family finance!) team.