Wills, Probate and Trusts

A Lasting Power of Attorney is a legal document in which you (the Donor) appoint someone (the Attorney) to make decisions on your behalf. A Lasting Power of Attorney allows your attorney(s) to make decisions on your behalf if you become mentally or indeed physically incapable of looking after your affairs or yourself.

There are two types of Lasting Powers of Attorney namely for Property & Financial Affairs and Health & Welfare. Either can only be used once it has been registered with the Office of the Public Guardian.

A Lasting Power of Attorney for Health and Welfare can only be used by your Attorney if you have lost the mental capacity to deal with your own health and welfare.

You cannot make a Lasting Power of Attorney once you have lost mental capacity. If a person has no Lasting Power of Attorney in place and loses the ability to manage their property and financial affairs or can no longer look after their own health and welfare, the Court of Protection may appoint a Deputy (which is a Court appointed Attorney) to make decisions on behalf of such a person. The process involved in such circumstances can be more expensive and take longer to organise.

Nobody can predict whether they may become mentally or physically impaired (or indeed when) and will need someone to look after their affairs. Such situations could be the result of an accident, illness or simply the ageing process. Having Lasting Powers of Attorney in place now ensures that your affairs are in order and that someone is appointed to assist (now or in the future) with your day-to-day management of affairs on an “in case” basis.

An LPA may never need to be used however the cost of making Lasting Powers of Attorney definitely outweighs the costs involved in making a Deputyship application with the Court of Protection.

This is the name given to a Will which does not deal with matters after a person’s Death but seeks to control medical treatment before they die. A Living Will may contain a statement or direction about what medical treatment will be applied if they become unable to communicate their wishes. In a living Will you can set out what medical treatment you wish to refuse or accept and specify in what circumstances that should apply.

Executors

An Executor is the person (or persons) who will administer - or execute - your affairs after you have died. Being an executor does not prevent the person from also being a beneficiary of your estate. Spouses, civil partners or partners can appoint each other as executor in the first instance and additional/replacement executors such as adult children or professionals can be appointed as substitute executors in the event of both deaths.

You should consider the appointment of your executors with care. The duties imposed by law on executors and trustees can be time consuming and can lead to personal liability. The partners of our parent company Thompsons Solicitors LLP are willing to act as executors of your estate, either solely or with a relative or trusted friend.

Even when a Will appoints an executor, a Grant of Probate must generally be obtained from the Probate Registry. A Grant is a Court sealed document confirming the appointment of the executors of your estate.

As part of the application for the Grant, a full inventory of your assets and liabilities must be submitted to HRMC. This may result in Inheritance Tax having to be paid. It is possible for your executors and trustees to appoint a solicitor to assist them with the administration of your estate in order to ensure that everything is dealt with appropriately and with expertise.

Grant of Probate

Once the Grant of Probate is obtained, assets of the estate can be collected and liabilities settled. This can involve time consuming work in dealing with a number of organisations.

Your estate will be dealt with quickly with the least amount of inconvenience to your beneficiaries.

Using solicitors also ensures that nothing gets overlooked, including Inheritance Tax, Income Tax and potential Capital Gains Tax arising during the administration period.

This service can help you safeguard the interests of your family, friends and dependants. It is important for both partners to make Wills because you might die at the same time. In any event you should provide for what should happen when you both die.

It is also extremely important for unmarried partners to make Wills. If you die without a Will, specific rules apply (called the “Rules of Intestacy”) and will dictate who inherits from your estate and in what proportion. Unfortunately the Rules of Intestacy do not recognise unmarried partners and your partner as such would receive nothing from your estate on your death.

INHERITANCE TAX

Inheritance Tax, or IHT as it is sometimes referred to, is levied on a person’s estate when they die. We can offer effective Inheritance Tax advice, so that part of your estate is not lost in paying taxes. For more information, visit https://www.gov.uk/

WHAT DOES MAKING A WILL INVOLVE?

A legally drawn up Will is a written statement of your wishes. It enables you to make important decisions that affect your family and friends after your death.

A Will specifies:-

• Who inherits your estate (i.e. everything you own)? Who are your beneficiaries?
• Who will act as guardians of your minor children if you are the sole surviving parent on your death and there is no one else with parental responsibility?
• Who will carry out your wishes? Who will your executors be (and your executors may also act as your trustees if your will creates a trust)?
• Why would you create a trust?
• Which charities, if any, are to benefit from your estate?

All of these issues can be incorporated in a Will. A properly drafted Will can spare your family and friends a lot of unnecessary work and upset at what is already a difficult time.

It also reduces the possibility of making your Will invalid or open to challenge. You can alter your Will or cancel it at any time during your lifetime provided you have the mental capacity to understand what you own, how you wish to dispose of your estate and provided you understand the contents and implications of your Will.