Wills & Probate
If you don’t make a Will you can’t make assumptions about how anything you own will be distributed after you die. You can’t even assume that your spouse or partner will inherit from you. In fact, an unmarried partner may get nothing at all.
If you want peace of mind and certainty over what happens to everything you leave behind, you must make a Will and keep it up to date. It’s the most effective way to avoid misunderstandings and minimise stress at a difficult time.
Special expertise in Will writing
We have solicitors whose special expertise is in helping you to write a Will. They can help you make sure you are in control over who benefits from your estate. The right Will can minimise inheritance tax liability and help to preserve your hard earned wealth. We can even build your wishes over your funeral arrangements and executors into your Will.
We are also highly experienced in writing living wills, power of attorney, estate and tax planning, trust administration and probate, which is the legal process you must go through when someone has died.
Too many people leave these things until it’s too late. Don’t leave your loved ones with a legal mess - call us now for sensitive, sensible advice.
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- Living Will
- Lasting Powers of Attorney
- Care Home fees
- Deputyship & the Court of Protection
- What to do after a death
- Probate & Estate Administration
- Claiming Refund of Care Fees
- Negligence Regarding Inheritance
- Wills & Probate FAQs
When you are ill, you will generally discuss your treatment options with a doctor and decide how you want to proceed. However, what if you are struck with an illness which means you are not able to communicate or make decisions for yourself? How would you want to be treated?
If you lose mental capacity, your doctors are generally obliged to act in your best interests. However, it is possible to make a Living Will in advance to direct your doctors that you wish to be treated in a particular way.
The term ‘Living Will’ actually refers to two different documents;
• Advanced statements; and
• Advanced decisions.
An advanced statement is a general statement of your preferences for treatment and care. Your doctors are not legally obliged to follow the advanced statement, but they must consider it when deciding what is in your best interests.
The advanced statement can include preferences which do not strictly relate to your medical treatment. For example, it could specify that you wish to be treated in accordance with your religious preferences or that you wish to follow a vegetarian diet.
It is possible to incorporate an advanced statement into a Lasting Power of Attorney. If you lose capacity, your Health and Welfare attorney must consider your advanced statement when making decisions on your behalf.
If drawn up correctly, an advanced decision to refuse treatment is legally binding upon your doctors and carers, even if the decision refuses life sustaining treatment.
For example you may feel an advanced decision is appropriate where you have been diagnosed with dementia or a terminal illness. It is also possible to prepare an advanced decision on religious grounds. For example, if you do not wish to receive blood transfusions under any circumstances.
How to prepare a Living Will
It is possible to prepare a Living Will without the advice of a professional. However, for an advanced decision to refuse treatment to be valid, certain legal requirements need to be met or the document could be invalidated. To avoid that risk and to offer peace of mind, Applebys can prepare Living Wills for you.
Most people understand what a Will is and why they should make one. However, fewer people know about or feel the need to make a Lasting Power of Attorney.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (or LPA) is a legal document which is prepared by you now, for a time in the future where you may not be able (or want) to make decisions for yourself. An LPA allows you to appoint one or more people (known as ‘attorneys’) to make decisions on your behalf.
There are two distinct types of LPA;
• Property and Financial Affairs; and
• Health and Welfare.
If you were to lose mental capacity with a Property and Financial Affairs LPA in place, your attorney would be able to access your bank accounts, pay your bills and buy and sell property on your behalf. It should be noted that your attorney is obliged to act in your best interests at all times.
With a Health and Welfare LPA in place, if you were to lose capacity your attorney could make decisions on your medical treatment, where you are to live and who you should be in contact with. It is also possible to give your attorney the power to refuse life sustaining treatment on your behalf if this ever becomes an issue.
Who can act as my attorney?
You can appoint anyone you trust to act as your attorney provided they are over 18 and not bankrupt. You can appoint more than one attorney. You can also place restrictions in the LPA so that your attorneys can only carry out tasks that you feel comfortable with.
How is an LPA created?
An LPA has three distinct parts. Part A must be completed by you and signed in the presence of a witness. In part B, a professional or someone who has known you for 2 or more years must certify that you have the capacity to make an LPA and have not been placed under any pressure to enter into it. Part C of the LPA is for your attorneys to confirm they are happy to act for you in the future.
When does an LPA take effect?
An LPA can only be used once it has been registered with the Office of the Public Guardian. A registration fee of £82 is currently payable for each LPA registered. However, it may be possible to have this fee reduced if your income is below prescribed limits.
The registration process can take anything from 6 weeks to 3 months to complete. During this time, people you have nominated will be told about the application to register and given the opportunity to object. This is an important safeguard and aims to prevent the LPA being registered without your consent.
Who should have an LPA?
Mental or physical incapacity can occur at any time and affects young and old alike. It cannot be stressed enough that making an LPA is all about planning ahead. It is not possible to make an LPA if you lose capacity. In this situation, your family would have to make an expensive application to the Court of Protection to deal with your finances. It is therefore prudent for anyone over the age of 18 to consider making an LPA.
Lasting Powers of Attorney can be a confusing subject without professional assistance. Applebys can advise you on LPAs and prepare these documents for you. We can also register these for you if required. Please contact us now for a free no-obligation quote.
For many people the prospect of paying care home fees can be frightening. The average cost of a year’s stay is over £30,000, and if you have assets worth more than £23,350, then you will be expected to pay the full bill. Not many people have an income to meet this kind of bill, so the family home may have to be used to pay the difference. Understandably, if you‘ve worked all your life, you don’t want to see your assets used up in care home fees, especially if you want to pass on your home to your children.
The law is clear : you cannot deprive yourself of assets which you could use to pay for your own care. So you cannot give away your house if you learn that you ae about to go into care. You cannot empty your savings account, and give it away just before you enter a nursing home. The local authority will take a detailed financial assessment and ask questions about substantial gifts and property transfers to check that “deliberate deprivation” has not taken place.
However, there are ways in which you can use your wills to help reduce your liability to care home fees. Please note that if you do this, you may not have the funds to choose your own care home, or to receive the standard of care you might wish.
You may wish to consider the use of trusts to transfer property out of your estate. Provided you do this with no intention of avoiding care home fees, it may reduce the size of your estate when social services undertake their financial assessment. However, please note that the use of trusts is not a guaranteed way of preserving assets, and each client has different circumstances which must be individually assessed.
You may also wish to consider altering the way in which your property is held. It may not be to your advantage if you own your property jointly with your spouse. We can alter the way in which you own your property, and draft new wills, so that half of your property is preserved. Again individual circumstances are important, and we would meet with you and explain the options carefully to you.
Where someone is incapable of making decisions on their own, the Court of Protection may appoint a Deputy to make decisions on their behalf. These decisions may relate to a person’s property and financial affairs or their health and welfare.
How is Deputyship different to a Lasting Power of Attorney?
Deputies and Attorneys perform very similar functions. However, the legal basis for their appointment is different:
• A Lasting Power of Attorney (LPA) is made by an individual before they lose capacity.
The individual had the opportunity to appoint their attorney in the LPA.
• In the case of Deputyship, an application to the Court of Protection is made by the
potential Deputy after an individual loses capacity. The Court of Protection decides
who is best placed to act as a Deputy on behalf of the individual. The application
process is therefore much longer and more stringent than the registration of an LPA.
Who can act as a Deputy?
Any person over the age of 18 can be appointed as a Deputy. However the applicant is likely to be refused if they have criminal convictions or are declared bankrupt.
In most cases, a close family member will make an application for Deputyship. If the estate of the individual is considerable then a Solicitor is likely to be appointed to act as a professional Deputy.
Powers and Responsibilities
When the Court of Protection appoints a Deputy, they will make a court order setting out the powers of the Deputy. Depending on the circumstances, the Court may impose restrictions on what a Deputy is able to do. For example, a Deputyship order may prohibit the sale of land without additional approval from the Court.
Deputies are supervised by the Office of the Public Guardian (OPG). The level of supervision will vary depending on the experience of the Deputy, but will typically involve submitting annual accounts to the OPG. The Deputy will also be required to pay a security bond upon appointment.
1) Registering the death. It is important to do this as soon as possible. You will need to make an appointment with your local Register Office , and a simple interview will be arranged. You will be given a death certificate, and you will also be asked if you want extra copies. You may find that you have to send the Death certificate to a variety of institutions including banks, pensions companies, and utility providers. Make sure you order enough copies, as it can be more expensive and inconvenient to have to go back later on.
2) Organise the funeral. Are you aware of any wishes or instructions left by the deceased? Sometimes the will contains instructions and requests. Sometimes famil y members know what the deceased wanted.
It’s important to take time to think about the funeral and exactly what would be most suitable as a memorial for the deceased. You can organise the funeral yourself, but you may find it easier to use a Funeral Director. Their experience and skill will be invaluable. Legally speaking; it is the job of the Executors to deal with the funeral arrangements. If there is no will, then the next-of kin usually take on the responsibility. Most of the time, there are no issues but where no clear wishes are known, and where families may be divided, this can be a difficult task, and further advice may be required.
3) After the funeral If there is a will, the Executors have the task of gathering information about all the assets and liabilities owned by the deceased at the date of his death. These are the items which will be shared out according to the will, and they include bank accounts, property, personal possessions, insurance policies, shares, and death benefits. There may be liabilities such as overdrafts, credit card bills, mortgages, and unpaid bills.
The most immediate expense is likely to be the cost of the funeral. In this case, a bank or building society which holds funds for the deceased will pay this bill when the funeral director’s invoice is presented. Please note that, apart from this payment, no other payments are permitted from the accounts of the deceased. Do not worry about this, organisation like utility companies will wait for payment until the Grant is obtained.
4) The Grant The Grant of Probate is given to executors when the court approves the returns made by them. The Grant gives to executors the legal authority to deal with the assets in the estate of the deceased. So, bills can be paid, and gifts can be shared out. If there is no will, then someone will apply to become the Administrator of the estate. This is usually a close relative. They will also receive a Grant, and they too can deal with the assets and liabilities of the deceased.
5) Tax matters Most of us will not have to worry about inheritance tax. The individual allowance is £325,000 and double, £650,000 for a married couple. Estates under these limits are generally passed on free of inheritance tax. Also, if assets are passed onto spouses or registered civil partners, then no inheritance tax is payable. However, executors and administrators still need to make a tax return to the Revenue even where the deceased’s estate is less than the inheritance tax threshold. They may need to get valuations of antiques, cars, and property.
6) Debts It is very important that the Executors or Administrators take great cae in dealing with the estate. Can they be sure that they know about all the debts and assets of the deceased? What if someone appears a couple of months after the death and claims to have been owed money? Executors would be well advised to take out formal adverts asking for creditors to get in touch. If they do not protect themselves, they may be held personally liable. It is an area where further advice is recommended.
7) Assets Executors and Administrators may need to take care to identify who is entitled to a share of the estate. It may be that specified gifts in the will need to be identified. It may be that the assets of the estate need careful valuation for inheritance tax purposes. Again, they should consider taking their time, and also taking further advice if the matters look complex.
8) Jointly-owned assets Many people have joint bank accounts and own their houses jointly with another person. Jointly-owned assets pass straight to the other joint-owner, and no Grant is required. But executors should be aware that the value of the deceased’s share will need to be declared to the Revenue.
9) To finish
The people who inherit under a will, or when there is no will, are entitled to ask the Executors and Administrators how they have handled the affairs of the deceased. It is a good idea if they prepare final accounts to show just what they have done.
The death of a loved one can be devastating. You need to have the time and space to grieve, and dealing with paperwork and legal affairs can often seem like an unbearable strain. Whether you simply need initial advice or someone to assist you with the administration of an estate, Applebys can help you.
Who are Personal Representatives?
When a person dies, their legal affairs need to dealt with; property should be collected in, inheritance tax may need to be paid, their debts and funeral expenses need to be settled, any remaining property should be distributed to beneficiaries. The persons who carry out this work are known as Personal Representatives (PRs). Depending on the circumstances, the PRs may also be known as Executors or Administrators.
What is a Grant of Representation?
A Grant of Representation is essentially a court order confirming that the PRs are the correct people to deal with the estate. For example, depending on the circumstances, the PRs may be required to produce a copy of the Grant to organisations before assets can be released to them. Depending on the circumstances, the Grant may also be known as Probate or Letters of Administration.
When is a Grant Required?
A Grant is not needed in every estate – some assets can be obtained without a Grant;
• Personal effects
• Life policies and pension benefits payable to a nominated beneficiary
• Jointly owned property
• Jointly owned bank accounts
• Accounts where the balance is under £5,000
Will we have to pay Inheritance Tax?
PRs are also responsible for determining whether inheritance tax is due on the estate. Generally, inheritance tax must be paid from the estate before a Grant can be obtained.
Inheritance tax can be a complex subject. However, it is generally based on;
• How much the person owned at the date of death;
• Whether they made any large gifts before death; and
• Who their property passes to under the terms of the Will or the intestacy rules.
How long can it take?
All estates which require a grant of representation take a minimum of 6 months to deal with. This is because individuals have 6 months from the date when probate was granted to make a claim against the estate. It is not safe to distribute the estate until the risk of a claim has passed. Legal disputes, inheritance tax and the sale of property can all lengthen the process.
Free Initial Advice
At Applebys, we appreciate how daunting an unfamiliar subject like Probate can seem at an already difficult time. We are always happy to provide support and discuss Probate matters with you. Therefore, please contact us now for free initial advice.
Is your parent in care?
Is he or she paying for their care?
Is he or she paying too much?
The first question you should be asking is “Has my parent been properly assessed? “
Your Local Authority has a duty to assess whether your mother or father needs care, and then to assess how they should pay for that care. This is not an easy subject. Some care may be provided by Social Services, some by the NHS , some may be free, some may have to be paid for. Your parent’s care bills are based on the assessment of their care needs and the assessment of their finances. Can you be sure that the assessments were carried out properly?
I t doesn’t end there. Even where your parent is assessed as having to pay for care, some assets should not be used to pay or that care. Again, a lot depends on the initial assessment, and whether or not it was carried out properly.
It could be that your parent has been paying too much for too long, and that a refund should now be due. Applebys can help you through the assessment process and provide advice on appealing against decisions made by the Assessors. We can advise if the process has been properly carried out, and we can help you with a claim for a refund of overpaid fees.
Can I Challenge a Will?
Granny wants to leave £10,000 to her favourite grandson Wayne. She asks a local solicitor to prepare a will. Unfortunately, the local solicitor delays drafting the will. He leaves it for two months. Granny passing on and the will has not been signed. Wayne is able to make a claim against the solicitor for his negligence in not preparing the will in time. This is one example of how a solicitor or will writer can make an error which can give rise to a claim in professional negligence.
A further example would be the case of Mr X. He was a lifelong friend of his two elderly neighbours. When they had both died he was astonished to find that they had left him everything. However, the solicitor who organised the wills made an error. The two sons of the deceased challenged the will and it was declared invalid. Mr X was able to pursue a claim against the solicitor for his mistake.
These situations are becoming more common, as are claims where you feel you have been badly treated. For example, you may feel your parents have over looked you in their wills. You were expecting £30,000, and it all went to a dogs’ home. If you think this is wrong, then you may be able to ask a judge to overturn the will.
This is what contentious probate deals with. It seeks to judge if a will is a valid will. It could be that your mother signed a new will whilst she was ill, and didn’t know what she was doing. It may be that your brother has a document which he claims is the “last will”, but it leaves everything to him, and nothing to you. It turns out that it’s a forgery. It could be that a solicitor or a will-writer who drafts a will makes an error, and the estate goes to the wrong person. This may be professional negligence on their part. Of course, it could be the will may be fine, but your father has left everything to a charity, and nothing for you, and you are struggling. In all these cases, it could be worth having a look at the circumstances:
• If you have been disinherited, you could make a claim.
• If the will is a forgery, you can get it cancelled.
• If a solicitor has made an error, you can make a claim against their firm.
Q. Why do I need a Will?
A. A Will is the only way to guarantee your property passes in accordance with your wishes following your death. If you die without having made a valid Will, your estate is divided according to a legal system known as the ‘intestacy rules’. Making a Will puts you in complete control so that the intestacy rules do not take effect and your estate will be divided according to your own wishes.
Q: But I don’t have anything to leave!
A: Your Will deals with much more than simply ‘who gets what’. Your Will allows you to appoint an executor. An executor is responsible for a variety of tasks including arranging your funeral, informing organisations of your death and establishing what assets are contained within your estate. If you have any children under the age of 18 when you die, you are able to nominate a legal guardian for them in your Will. Your Will can also dictate if you have any particular wishes for your funeral ,for example, whether you wish for your body to be buried or cremated. These can be distressing considerations for your friends and family if you have not made you wishes known in a Will.
Q: What happens if I don’t make a Will?
A. If you have not made a Will before your death, your estate will be passed to your relations according to the default statutory system known as the ‘intestacy rules’. Very often, the intestacy rules will not reflect how you would want your estate to be divided. For example, if you are in a relationship but not married, your partner may be left with nothing if you do not make a Will!
Q: Why do I need succession planning?
A. Put simply, succession planning is about ensuring that your assets are protected and passed to the next generation in accordance with your wishes. As well as making a Will, succession planning can involve reducing your estate’s liability for Inheritance Tax and protecting your assets, for example, from potential care home fees so they are there to enjoy for the next generation.
Q: How much will it cost?
A: The cost of a Will can vary depending on how complicated it needs to be. However, at Applebys, we will always provide you with a professional, high quality service. Please contact us now for a free quote and to discuss how we can help.
Q: What is a Living Will?
A: A Living Will is not to be confused with a Will. Although they have similar names, their purpose is entirely different. Whereas a Will deals with how your estate is to be divided upon death, a Living Will is a written document prepared in advance to convey your wishes regarding medical treatment if you experience a serious health problem and are unable to communicate your intentions.
Q: Can the executor of my Will deal with my Property and Affairs if I lose mental capacity?
A: No. Your Will can only determine how your affairs are dealt with following your death. Your executor has no rights to make decisions regarding your property or personal welfare if you lose the ability to make decisions for yourself. You must prepare a Lasting Power of Attorney (LPA) if you wish to appoint another person to make decisions on your behalf when you are no longer able to do so. There are two separate types of LPA, one dealing with your Property and Affairs and another dealing with your Personal Welfare. Applebys can assist you in preparing both LPAs, offering you complete certainty and peace of mind.
Q: What can I do to ensure I don’t pay more tax than I need to?
A: Inheritance Tax can be a complex subject and the relevant legislation is changed frequently. However, liability to Inheritance Tax can be reduced by careful planning and the use of Wills and Trusts. Applebys can offer you expert advice regarding Inheritance Tax planning while preparing your Will.
Q: My husband died six weeks ago. He did not make a will before he died. Who will get the house , his car, and his bank accounts?
A: If there is no will, then the Intestacy Rules apply to the division of your husband’s assets. First, it is important to identify the extent of your husband’s estate, and then to identify who his next-of-kin are. If , for example, your home was owned in joint names with your husband, it will already have come directly to you. The same applies to joint bank accounts.
Q: My mother died last week. Her will named my father as her only executor but he died 15 years ago. Who can sort her estate out?
A: You have a will but no executors. In this case, you and any other children of your mother are entitled to apply to become administrators of the estate. You will then be able to deal with it according to your mother’s will.
If he made a will now, and married next year, the will would be automatically cancelled unless it was made “in expectation” of marriage. If he does make a valid will, then he can make provision both for you and also his wife.
Q: My father has died. He inherited all my mother’s personal belongings. I and my brothers are the executors of his will. Can we just give this stuff away?
A: If these items are not specifically mentioned in your father’s will, then they will fall into the Residue of the estate. This residue is usually given to one or more persons. If you can identify those who are going to share the Residue, then they are entitled to a share of these items. It may be that they are happy for you to give these items away; on the other hand, they may want them. However, please note that some valuation of these items needs to be made by the executors for the tax return which you will have to submit. Valuable items ought to be secured and safely stored.
Q: My auntie died last year. I know that I’m in her will. How long before I get paid out?
A: It depends on the size and complexity of the estate and how fast the executors want to move. We advise executors not to make any significant distributions until six months after the Grant has been obtained. This six-month period is a time during which a claim can be made against the estate. It can take several months to get a grant. So, nine months is not an unreasonable time before a pay out is made. If the executors are taking a very long time (over a year from the date of death) you may be entitled to interest as well.