Wills & Estates

Taking time now to make a will and an effective estate plan has many benefits and provides clarity for your family when you die. Our experienced will and estate planning solicitors can help you document your wishes, protect beneficiaries, and maximise the inheritance for your family using trusts and tax planning. We can also help with the complex process of applying for probate and administering the estate of a loved one.

Why should you have a will?

The law governing wills is complex but that does not mean that it is expensive or difficult to have a will prepared to give you peace of mind and clarify your wishes for family, friends, and others.

A will is a legal document setting out how you want your possessions and assets, known as your estate, distributed after you die. It can also include express preferences about things like funeral and burial/cremation wishes or the care of children and pets.

It may also be possible to reduce the amount of inheritance tax payable if advice is sought while making your will.

Dying without leaving a valid will, known as dying intestate, can cause difficulties for family left behind who may already be stressed at the bereavement. It can cause disagreements between siblings and blood/step relatives. There are rules of intestacy which will allocate the money, property, and possession of someone dying without a will, for example, unmarried partners cannot inherit from each other without a valid will.

When someone dies without a will there is no-one with immediate authority to act as the personal representative of the deceased. Inheritance laws decide who can act as the administrator. This is usually a spouse but there is an order of relatives who may apply to the Probate Registry for a grant of letters of administration.

Lasting power of attorney

Putting a power of attorney in place now can give you reassurance that someone you have chosen and trust is on standby. Should you ever be unable to make decisions for yourself, for example, after an accident or illness, or because you are out of the country, it can be costly and lengthy for other family members to apply to the Court of Protection to have a deputy appointed to look after your daily affairs.

A lasting power of attorney (LPA) is a legal document you can make that grants another person the authority to make legal and financial decisions on your behalf. There are different types of LPAs for financial decisions and health care decisions.

An LPA for financial decisions can be used to allow someone to make decisions for you even while you still have mental capacity. These decisions may include such things as buying and selling property, investing money, and paying bills.

An LPA for health is different in that it only comes into effect if you have lost the capacity to make decisions for yourself. It will allow someone you trust to make decisions such as where you live, your medical care, and what kind of activities you should take part in.

What is probate?

Probate is the legal authority to deal with someone’s property, money, and possessions after their death. The executors named in a valid will may apply for probate and are usually aware of the role they are expected to fulfil. If there is no will then the most appropriate person may apply for letters of administration, which is usually the deceased’s closest living relative.

Is probate always required?

In most cases, probate will be necessary, however before applying we recommend that you first check if it is required to deal with an estate. For example, property or assets such as shares that were jointly owned automatically pass to the surviving owner. If the estate consisted only of savings or had a small value, probate may not be required. In all other cases, unless and until you have been granted probate you are not allowed to attend to financial matters or put a property on the market.

Applying for probate

Before applying for probate, you should estimate the worth of the estate and determine whether inheritance tax is payable. You will need to contact banks, pension providers, employers, mortgage lenders, etc., and take into consideration any gifts given during the previous seven years as well as other assets such as jewellery, furniture, paintings, and other household items. You need to report the value of the estate to HMRC, whether or not tax is due. You must keep copies of the will and records showing how you valued the estate.

You will also need a death certificate and the original will before you can apply for probate. You need to complete the required forms and pay the fee.

We can advise whether probate is necessary or recommended in your circumstances and help you make the application to the Probate Registry, which can be a complex and time-consuming process.

What if probate is contested?

Where more than one person may apply for probate or there is a question over the validity of a will and a dispute arises, you can stop a probate application by entering a caveat. The caveat lasts six months and ultimately if the matter cannot be settled by other means the decision about who should be granted probate may end up going to court.

If you need assistance, contact [email protected] or call 01289 306724 for expert legal advice.