• Wills
• Codicils
• Inheritance Tax Advice
• Probate and Administration of Estates
• Post Death Variations
• Registration of Enduring Power of Attorney
• Lasting Powers of Attorney
• Court of Protection Applications

Wills and Probate 

A Will is an opportunity to explain what you want to happen to your assets when you die.  Unlike most legal documents, it has no effect until your death and it is therefore important that you obtain proper advice on the drafting of your Will.

We use our skill and experience to ask all the right questions to ensure that your wishes are fully and correctly expressed in your Will.

You can vary your Will at any time by making a new Will or for smaller alterations by making a Codicil.

What is Probate

On the death, the Will comes into force and the appointed executor (male) or executrix (female) is responsible for administering the estate.

If a person dies without making a Will the statutory rules of Intestacy determine how your estate will pass.

Many people assume that in the case of married couples or civil partners their whole estate will automatically pass to the survivor but unless all assets are in joint names or the estate is relatively small this is not in fact the case for example if a person dies leaving a husband or wife and children the husband or wife are entitled to:-

a) all personal belongings.

b) a statutory legacy of £250,000.00 plus statutory interest.

c) the right to recieve income from the investment of half of the residue of the estate for the remainder of their lifetime.

d) the remaining half is held upon the statutory trusts for the children until they reach the age of eighteen years.

The statutory Intestacy rules make no provision for cohabitees, friends or charities.

• By failing to make a Will you lose the choice of appointing Executors and Trustees as The Administration of Estates Act 1925 sets down who may apply for the Grant of Letters of Administration.
• Where there is no Will in the case where non-one else has Parental Responsibility then the court will appoint a Guardian for any children under the age of eighteen. By making a Will you can appoint Guardians who will be legally responsible for the care of the children and ensure that proper financial provision is made for them until they reach the age of majority.
• Where there is no Will and your wishes for burial and disposal of your body are unclear a dispute may arise regarding those wishes e.g. between a new spouse or cohabitee and children of a former relationship.

Inheritance Tax Planning. Wills in the past have been a useful tool to give legacies using the nil rate band (£312,000.00 as from 6th April 2008) to non exempt beneficiaries for the purposes of saving Inheritance Tax and for using the nil rate tax band in connection with the creation of a Discretionary Trust so as to make full use of both husband’s and wife’s or civil partner’s nil rate band. Discretionary Trust Wills will be much less in use following the Chancellor’s pre-budget statement made on 9th October 2007 which allows for the transfer of a proportion of unused nil rate band form the estate of one spouse to the other. Such Trusts may still be useful in the case of making provision for disabled beneficiaries and/or children from previous relationships.

• The new rules will not change the effect of existing Wills. If a person has a nil rate band Trust written into their Will they do no have to take action as a result of the new measures but if they do wish to take account of the new rules then changes can be made by re-writing the Will or a Codicil depending on the circumstances.
• Where someone dies with a nil rate band Discretionary Trust in their Will and appointment of the Trust assets in favour of the surviving spouse or civil partner (before the second anniversary of the death but not within the three months immediately following the death) would normally be treated for Inheritance Tax purposes as if the assets had simply been left to the surviving spouse or civil partner outright. Ending the Trust in this way would mean that the nil rate band was not used on the first death and so the amount available for eventual transfer to the surviving spouse or civil partner will be increased accordingly.
• The transferable allowance will be available to all survivors of the marriage or civil partnership who die on or after 9th October 2007 no matter when the first partner died. The transfer does not happen automatically but a claim to transfer the unused nil rate band must be made by the Executors of the survivor.

Powers of Attorney: We can prepare a Power of Attorney for you to appoint someone to deal with your affairs should you be unable e.g. if you are abroad for a period of time. An ordinary Power of Attorney is revoked automatically if you lose you mental capacity. In the past it has been possible to make Enduring Powers of Attorney which are not revoked automatically if you lose you mental capacity. As from the 1st October 2007 it is not possible to make a new Enduring Powers of Attorney, however, all those which continue to be in existence remain valid and advice and assistance can be given in relation to registration of the Enduring Power of Attorney and administration of the Donor’s affairs.
 
Enduring Powers of Attorney have been replaced by Lasting Powers of Attorney. There are two types of Lasting Powers of Attorney:- 

• A Property and Affairs Lasting Power of Attorney which allows your Attorney authority to deal with your property and affairs.

• A Personal Welfare Power of Attorney which allows your Attorney to make welfare and healthcare decisions on your behalf only when you lack mental capacity to do so yourself. This may extend, if you so wish, to giving or refusing consent to the continuation of life sustaining treatment.
   
  If you lose your mental capacity and you have not signed an Enduring Power of Attorney or a lasting Power of Attorney then an application must be made to the Court of Protection for a Deputy to be appointed to manage your affairs. This process, whilst designed to protect you is expensive and time consuming.
   
  In either case a Deputy or Attorneys appointed by a Lasting Power of Attorney must have regard to the Mental Capacity Act 2005 and must at all times be in your best interest.
   
  Your Attorney will only be able to act on your behalf when the Lasting Power of Attorney has been signed by you and your Attorney, certified by a person (“a Certificate Provider”) that you understand the nature and scope of the Lasting Power of Attorney and have not been unduly pressurised into making the Power. The Certificate Provider will also need to confirm that there has not been any fraud or any other reason why you cannot make the Power. It must then be registered with the Office of the Public Guardian before it can be used.
   
  Any enduring Power of Attorney validly made before the 1st October 2007 will continue to be able to be used but only in respect of your property and affairs. If you wish to give authority over your health or welfare matters you will need to make a Personal Welfare Lasting Power of Attorney.

If there is no Will, we can arrange for a Grant of Letters of Administration to be extracted of a Grant of Probate.

Post Death Planning
For the purposes of Inheritance Tax and Capital Gains Tax it is possible to vary a Will or an Intestacy at any time within two years of the deceased's death by signing a Deed of Variarion e.g. where beneficiaries agreed to vary the terms of a Will so as to leave a gift to a charity.

Inheritance claims
The Inheritance (Provision for Family & Dependents) Act 1975 allows certain groups of people to make a claim against an estate where they consider that insufficient reasonable provision has been made for them.  Such people include a husband or wife, civil partner, a former wife, husband or civil partner, a child or a dependent.  In such cases we are able to advise you and can help bring an action to Court to claim an interest in the estate.  Likewise if someone had made such a claim we will be able to help you defend that claim.

Advising the elderly
More people are living longer and may have more assets but perhaps less cash.  We can advise about equity release schemes to access funds, and about the impact of nursing home fees.