Wills and probate

It is always best to have a Will drawn up professionally. Not only is this a good way to avoid disputes and to ensure that your wishes are met, but you can also protect the inheritance you leave behind in a number of different ways.

 

We provide advice and assistance on the following issues:

  • Preparing a Will
  • Probate and the administration of an estate
  • Powers of Attorney
  • Deputyship
  • The rules relating to Intestacy
  • Trusts
  • Tax

 

The Probate Solicitor deals with a wide range of matters, assisting clients with a variety of personal issues. We can advise and help you with not only Wills and Probate matters, but also elderly or disabled client related issues, taxation and trusts.

 

Wills

It has been estimated that over 70% of the adult population in the UK do not have a valid Will. Many of those who have made Wills have not updated the Wills since they were made and changes in personal circumstances and the Law may mean that these Wills are out of date or invalid. Your Will is your only opportunity to ensure that your money and belongings go to the people, organisations or charities you wish to benefit. Making a Will is not expensive (we provide a fixed fee service which covers the majority of situations, as well as a Free Will service for those who qualify) and is a simple and straightforward process. Every adult should have a Will, no matter how old or young they are, and regardless of how much (or little) money they have.

 

If you do not have a Will and you were to pass away, the rules of Intestacy as governed by statute would determine who administers your estate and who inherits. These rules are largely inflexible and follow a strict order of priority.

 

If you die without having made a valid Will:

  • Your spouse or civil partner may only be entitled to the first £250,000 of what you own if you have children, and the first £450,000 if you don’t have children;
  • If you are the sole owner of the house, your spouse or civil partner may not automatically be entitled to live there or may not inherit the house in its entirety;
  • Your partner, if you are not married or if your civil partnership is not registered, is not automatically entitled to anything and they may have to go to court to claim from your estate;
  • You lose the ability to choose who deals with your estate;
  • If you have no family, the State may get everything you own.

 

Even if you have made a valid Will:

  • Marriage or the Registration of a Civil Partnership automatically cancels your Will (unless it has been specifically made in contemplation of such marriage or registration) and you are then deemed to die intestate;
  • If you have married since making your Will, the children from a former relationship or marriage may not inherit as your present wife may get everything.

These rules are complicated, but we will be happy to discuss any aspect of Wills or intestacy with you. We will also be happy to check over your current Will to see if everything is in order or whether it needs updating. If no work is required, no charge will be made for the consultation. Remember, simple amendments or additions can be made at a reduced cost by incorporating these into a Codicil rather than making a completely new Will. In most cases, however, the Will may need to be rewritten if it was made a long time ago.

 

The Law regarding Inheritance Tax also changed recently, making provision for married couples and Civil Partners who have registered their partnership to combine their Nil Rate Bands on the second death. A Nil Rate Band is the threshold below which the estate pays no Inheritance Tax. If you would like advice on Inheritance Tax, please contact us.

 

We can also now register your Wills with Certainty, a company that oversees a nationwide Wills Database. For more information, please contact us.

 

Lasting Powers of Attorney

A Power of Attorney is a document which allows a person of sound mind, known as the Donor, to appoint a person, persons or a Trust Corporation, known as the attorney, to deal with the Donor’s affairs on their behalf. You may not be aware, but the Mental Capacity Act 2005 came into operation on the 1st October 2007. In essence, this Act stated that the previous system of Enduring Powers of Attorney is no longer available and replaced it with Lasting Powers of Attorney. However, if you have already signed an Enduring Power of Attorney prior to the 1st October 2007, this will continue to operate.

 

Briefly, there are two types of Lasting Powers of Attorney: Property and Affairs Lasting Powers of Attorney, which replaced Enduring Powers of Attorney and deal specifically with financial matters; and Health and Welfare Lasting Powers of Attorney, which deal specifically with medication and decision regarding your care. The Government has published a vast amount of information concerning Lasting Powers of Attorney. The forms themselves are fairly lengthy. If you would like to know more about Lasting Powers of Attorney, we will be happy to talk to you about it.

 

Court of Protection Deputyship

Should you become mentally incapable of dealing with your finances (for example through illness or accident) no-one will be able to sign paperwork, deal with the bank, pay bills etc on your behalf, unless you have a Lasting Power of Attorney or an Enduring Power of Attorney already in place. If you have not appointed an Attorney, the Court will need to appoint a Deputy – a relative, friend or solicitor, for instance – to do this for you. The procedure is complex, time consuming and expensive and we recommend that it be avoided, if possible. The Court of Protection sets down the basis of our legal charges in addition to fees payable directly to the Court. Your Deputy will have to ask the Court’s permission before major decisions are made on your behalf, and there are annual ongoing fees payable to the Court. If you have a relative unable to manage their finances who has not appointed an Attorney please contact us to see how we can help you.

 

Care Home Matters

This area of work covers a range of issues. We can advise and help with queries such as:

 

ü      Can I give my house away to avoid paying care home fees?

ü      What should I look for in a care home for me/my relatives?

ü      Care home contracts – should I sign?

ü      Payment issues - residential care fees and benefit entitlements

ü      Alternative arrangements to going into residential care

ü      What happens to my money and property if I go into care?

ü      Will the value of my house be taken into account when assessing the fees I have to pay?

ü      What happens to my money if I am no longer capable to managing my finances?

 

If any of these are issues that affect you or a relative, please feel free to contact us.

 

Probate

It is not true to say that an estate will “go through Probate” simply because no Will has been made. Whether an estate goes to Probate or not depends entirely on the value of the assets in the estate, which the Deceased owned in his or her own name, not whether there is a Will or not. Joint assets are dealt with differently and may be transferred directly to the co-owner, without the need for Probate.

 

The Probate Registry should be seen simply as a Court which formally confirms the appointment of an Executor in a Will (called a Grant of Probate), or appoints an Administrator if someone has died without a Will (called a Grant of Letters of Administration). Both Executors and Administrators may also be called Personal Representatives. Once the Grant is obtained, the task of a Personal Representative is essentially to collect together all the assets the deceased person owned in his or her own name (’the estate’) and then to pay or distribute the estate to the right people, after all debts are paid. Beneficiaries will be either as stated in the Will, or as laid down by law if there is no Will.

 

Whilst Personal Representatives (PRs) may be able to deal with the estate themselves, it is generally wise to seek legal advice. Many people consider solicitors’ charges to be expensive, but this is often not the case. Furthermore there are ‘hidden’ costs if the PRs choose to do the work. Postage, telephone calls and travel expenses can quickly mount up, and time will often have to be taken off work to attend the Probate Registry Office in person (a solicitor can deal with this by post).

 

One danger in ‘doing it yourself’ is lack of legal knowledge resulting in issues being missed or overlooked. This may lead, for instance, to refunds due to the estate not being claimed, or, worse still, the PRs having to pay debts of the Deceased out of their own pockets after the estate has been distributed to beneficiaries. This is because the PRs are personally liable for any claims made against the estate if done within six months of the Grant and if the PRs have already distributed the estate.

 

While not common, it is not unknown for a solicitor to recover more in payments due to an estate (which the PRs were not aware could be reclaimed) than can be paid in legal fees!

 

Taxation

Income Tax we are all generally aware of, but what about Capital Gains Tax (CGT) - charged on any real or assumed profit made when you sell something or even give it away? Also, Inheritance Tax (IHT) is becoming an increasing problem, particularly with higher house prices. If you own farmland or a business, either on your own or together with others, tax relief for both CGT and IHT may be available. Many Wills are made with tax planning in mind. It is also possible to make gifts during your lifetime and in your Will as part of tax planning schemes. We can give guidance on these issues to help reduce your tax burden, or even eliminate it completely.

 

Trusts

A trust is created whenever one or more people (‘Trustees’) either have to or are deemed to manage property, investments or finances on behalf of another person. Trusts are often made under a Will, but may also arise simply because a Will has not been made. Other Trusts are established as part of tax planning procedures. Generally Trusts occur when someone has given money or property to others to manage (with certain conditions laid down) on behalf of beneficiaries. The Trustees are responsible for ensuring the trust is properly managed and are obliged to take advice to comply with the Trustee Act 2000.

 

Both the law and the tax regulations relating to trusts are very complex and are governed by numerous pieces of legislation dating back to 1925. If you are considering establishing any kind of trust whether during your lifetime or as part of your will, or if you are a Trustee involved in the management of a trust, we are here to help you.

The members of staff in this Department are:

Louis Brandt

Partner

 

David Watkins

Associate

 

Haroon Qayum

Solicitor

 

Jackie Osborn

Secretary to Mr. Brandt

 

Lorraine Webb

Secretary to Mr. Watkins

 

Jane Norman

Secretary to Mr. Qayum

If you have any questions or would like to make an appointment to discuss this area, please call us on  +44 (0)1480 219229 or use our contact form.

Contact us to arrange a meeting

Address

Wilkinson & Butler Solicitors

Peppercorn House
8 Huntingdon Street
St. Neots

Cambridgeshire

PE19 1BH

 

DX

100301 St. Neots

 

Tel: +44 (0)1480 219229

Fax: +44 (0)1480 472 651

E-mail: law@wbsols.co.uk

 

Or use our contact form.

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