Wills and Probate

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Wills and Probate

It is estimated nearly 25% of the population die without leaving a Will. If you die without having made one, the law will dictate how your assets are dealt with, which can sometimes lead to unexpected and unfortunate consequences.

bill-ohanlon

Bill O'Hanlon
Wills & Probate Specialist

Every adult should make a Will and review it regularly, particularly if their circumstances change, such as they get married, have children or get divorced. (In fact it is important to note that marriage invalidates any Will made before marriage).

The simple act of making a will will not only ensure that your estate is dealt with as per your wishes, it will also make the administration of your estate easier for your loved ones.


alex-riordan

Alex Riordan
Wills & Probate Specialist

Our friendly and professional team of specialists will be happy to discuss your requirements without the confusing legal jargon, enabling you to choose the person or persons who will administer your estate, who you wish to leave your assets to and help to to plan for potential inheritance tax implications.

When a friend or relative dies, there can be so many matters to deal with that it can be difficult to know where to start, and impossible to see the end. At Watson Woodhouse, our friendly and understanding team of specialists are able to deal with all types of estates, from the simplest to the most complex. With a mixture of technical expertise, common sense advice and sensitivity, we can help guide you through the process from start to finish.

Do I need a will?

Making a Will provides certainty and peace of mind. It enables an individual to make decisions on who will be responsible for managing their Estate and who will ultimately benefit from it. Also, an individual can make provision in their Will for the appointment of Guardians for minor children. Making a Will can be useful when planning an individual’s tax affairs, so that full use can be made of the various tax exemptions and the nil rate band.

Do I need to instruct a Solicitor to make a will?

It is preferable to instruct a Solicitor as there are certain rules that must be adhered to when signing a Will in order to ensure that it is valid. An individual can obtain the relevant stationery to make their own Will. However, due to the number of issues that are relevant in such matters, it is always wise to take legal advice in order to be able to make informed decisions.

How much will it cost?

The standard charging rate for an individual Will is £80.00 plus VAT being a total of £96.00. In cases where spouses or couples wish to make Wills which contain identical provisions the charge is £100.00 plus VAT being a total of £120.00. We are able to arrange home visits and there is a charge of £20.00 plus VAT applied for additional time which is required in order to make the two trips needed for taking instructions and returning to have the document signed. The rate charged for travelling for home visits is subject to instructions being taken in the Teesside area. An increased charging rate applies for longer distances.

Deputy Applications

A Deputy Application is necessary in circumstances when an individual wishes to assist with the affairs of somebody whose mental capacity has diminished.

The common scenario is when a family member loses mental capacity and a relative wishes to take over their affairs and take care of their best interests.

In terms of the mechanics of applying for a Deputy Order, there are 4 forms that need to be completed and filed at the Court of Protection in London. These are as follows:-

  1. Application Form – in this form the Applicant provides details of the matters that they are wanting to deal with on behalf of the individual who has lost mental capacity. The application form needs to be specific and cover exactly what areas the Applicant is looking to obtain authority to manage.
  2. Assessment of Capacity – here a medical practitioner certifies that the individual to whom the application relates does indeed lack sufficient mental capacity to manage their own affairs and that it is in order for the Court to grant an Order enabling the Applicant to become involved.
  3. Supporting Information for Property and Affairs Application – this is essentially an inventory where the Applicant provides information to the Court about the assets and liabilities for the individual in whose favour the application relates.
  4. Deputy's Declaration – the purpose of this form is for the Applicant to declare that they are fit and proper to be appointed as Deputy and confirm that they will manage the affairs of the individual to whom the application relates with integrity and at all times in their best interests.

Once all of the forms have been completed and filed, the Court of Protection will issue the application. It is then necessary to provide notice to the family members of the individual to whom the application relates to give them the opportunity to oppose the application or be made a Party to it. This is to avoid any mismanagement of an individual’s affairs.

If the application is unopposed then it is put before a Judge who will consider the case and decide whether he or she can make an Order.

If the Court does grant an Order, they will ask that security is set-up which is essentially a means of insuring the Deputy against any errors that occur in the course of undertaking their duties. The security is renewed every year.

Upon release of the Order, the Deputy would need to provide a copy to the relevant organisations that he/she will need to deal with in the course of managing the affairs of the individual to whom the application relates.

It is important to note that the process can take a number of months to be finalised due to an ongoing backlog of cases at the Court of Protection. The firm’s approach is to periodically contact the Court for updates and to chase progression of individual cases.

Estate Administration

Losing a loved one is a difficult and emotional period and it is often difficult to consider having to sort out and administer the estate.

At Watson Woodhouse we provide a professional and sensitive service and aim to remove the strain and stress that can come with estate administration. We are happy to assist you through the process by dealing with the valuation of the estate, application for Probate, and ensuring that the estate is distributed in accordance with the Will or the legal provisions that apply when there is no Will in place.

Q. A relative has passed away, do I need to apply for Probate?

A. This would depend on the size and complexity of the deceased's estate. In certain cases it is possible to administer the estate by simply producing a copy of the death certificate. However most of the time where there are bank accounts and property to deal with, an application for Probate will be necessary.

Q. When will inheritance tax have to be paid?

A. Currently, the nil rate band for inheritance tax is £325,000. Estates that are worth more than the threshold are liable to tax at a rate of 40%. That is to say, the sum over and above the threshold would be taxed. Every individual estate has it's own nil rate band.

Q. I believe that the deceased left a Will, what happens now?

A. It would be necessary to locate the original Will in order to consider the provisions. The Will would appoint an executor or executors, who would be entitled to deal with the administration of the estate. They would also ensure that the deceased's wishes as stated in the Will are followed.

Legal advice after death

The death of a loved one is always an upsetting and stressful time. It is often difficult to contemplate the need to deal with and administer the estate, and doing so can be a burdensome and complicated process.

We are happy to provide you with the advice and assistance that you need to help get through the administrative and legal matters that come about when somebody passes away.

We will offer sensitive, discreet and practical advice throughout. Our aim is to complete the administration of the estate as quickly and professionally as possible.

Q. A relative has died. What do I need to do?

A. When an individual passes away, the most pressing thought for the family is making arrangements for the funeral. In some cases, a funeral invoice can be set up by sending the invoice to the deceased’s Bank and asking for payment to be made to the Funeral Director.

In terms of administering the Estate, checks should be made as to whether there is a Will in existence. This will determine how the individual’s Estate is going to be administered.

The Estate will have to be valued. This task involves contacting Banks and organisations with whom the deceased held accounts, valuing assets such as the deceased’s home, and ascertaining the extent of any debts and liabilities.

Depending on the size and nature of the Estate there will be a requirement to apply to the District Probate Registry for a Grant of Probate or Letters of Administration. A Grant of Probate is applied for when the deceased left a Will. Letters of Administration are applied for when an individual dies intestate.

In cases where probate is required, it is usual that funds cannot be collected into the Estate until such time as the probate document is produced.

Q. I disagree with the will of a deceased relative. Is there anything I can do?

A. In such circumstances, the preferred way of dealing with this situation would be to try and reach an agreement with those individuals named as beneficiaries in the Will. If they are happy to adjust the provisions in the Will, legal documentation can be prepared which would vary the provisions.

If it is not possible to reach an agreement with beneficiaries then it maybe possible to bring a civil claim against the Estate, although the individual bringing the claim would have to meet certain criteria in order to be recognised as being entitled to a share in the Estate. The common example is when the Will does not make a provision for the deceased’s dependents.

Q. I can’t locate the will of a loved one. What happens now?

A. It will be necessary to carry out a reasonable search to try and locate the Will. Potential lines of enquiry would include contacting local firms of Solicitors, speaking to relatives, and looking for any correspondence from Solicitors that would show where the Will was prepared. If nothing can be found then the Estate may have to be administered in accordance with the intestacy rules. It is important that an individual making a Will ensures that they notify the Executors as to the whereabouts of the original document which would avoid such complications in the future.

Lasting Power of Attorney

A Lasting Power of Attorney would enable you to nominate an individual, or individuals, to manage your affairs on your behalf in the event that your mental capacity diminished to such an extent that you were no longer capable of dealing with such matters for yourself.

There are currently two separate types of Lasting Power of Attorney. Firstly, you can set up a Power of Attorney in relation to your property and financial affairs. As the name suggests, this would enable your Attorney to manage any property that you own, for example by selling the same in order to release funds for care fees, and also handle any money that you have in bank accounts, investments, pensions etc. Within the Power of Attorney form you can set restrictions if there are any parts of your estate that you do not wish the Attorney to deal with. You can also insert guidance for your Attorney so that they manage your affairs in a certain manner, for example if you make charitable denotations on a regular basis then you can state that you wish for your Attorney to ensure that this continues.

The second Power of Attorney available would cover your personal welfare. This enables your Attorney to make decisions concerning your day to day wellbeing and care. It also extends to life sustaining treatment, so that you can grant your Attorney the authority to make such decisions on your behalf.

In terms of the mechanics of setting up a Power of Attorney it is up to you to decide how many Attorneys you would like to appoint. You can also name substitutes if necessary. If you appoint more than one Attorney then you would need to decide whether they are to act joint or jointly and severally. If you would prefer to appoint them jointly then they would both need to participate in all activities relating to your affairs. By appointing Attorneys jointly and severally then you are increasing their flexibility as either they both attend to matters for you or alternatively they can do so individually.

The Office of the Public of Guardian who oversee this area of law are keen to ensure that individuals setting up a Power of Attorney are doing so in the absence of any third party influences. To achieve this they require that certain checks are carried out. There are two possible avenues that you can go down:-

  1. Providing notice to a friend/family member and completing a Part B Certificate
    You can name an individual within the Power of Attorney who needs to be notified at the point of registration. Within the form you can name up to four people. The purpose of this is so that upon receipt of notice that individual can raise an objection to the registration of the Power of Attorney if they think necessary. Alongside this you would require a Part B Certificate. This is confirmation from a legal/medical professional or somebody who has known you for in excess of two years that you are setting up a Power of Attorney of your own freewill and that you understand the implications of doing so.
  2. Completion of two Part B Certificate
    If you do not wish to notify any individuals at the point of registration then you would require two Part B Certificates i.e. one completed by me as instructing solicitor and one completed by your GP or somebody that has known you for over two years.

It is important to note that the Power of Attorney document once signed will remain dormant until the named Attorney or Attorneys believe that you are beginning to lose mental capacity. At that point they would apply for registration at the Office of the Public Guardian. The Attorney is not authorised to commence their involvement until such time as the document has been registered.

Making a Will

It is estimated nearly 25% of the population die without leaving a Will. If you die without having made one, the law will dictate how your assets are dealt with, which can sometimes lead to unexpected and unfortunate consequences.

Every adult should make a Will and review it regularly, particularly if their circumstances change, such as they get married, have children or get divorced. (In fact it is important to note that marriage invalidates any Will made before marriage).

The simple act of making a will will not only ensure that your estate is dealt with as per your wishes, it will also make the administration of your estate easier for your loved ones.

Our friendly and professional team of specialists will be happy to discuss your requirements without the confusing legal jargon, enabling you to choose the person or persons who will administer your estate, who you wish to leave your asests to and help to to plan for potential inheritance tax implications.

Q. Do I need a will?

A. Making a Will provides certainty and peace of mind. It enables an individual to make decisions on who will be responsible for managing their Estate and who will ultimately benefit from it. Also, an individual can make provision in their Will for the appointment of Guardians for minor children. Making a Will can be useful when planning an individual’s tax affairs, so that full use can be made of the various tax exemptions and the nil rate band.

Q. Do I need to instruct a Solicitor to make a will?

A. It is preferable to instruct a Solicitor as there are certain rules that must be adhered to when signing a Will in order to ensure that it is valid. An individual can obtain the relevant stationery to make their own Will, however, due to the number of issues that are relevant in such matters it is always wise to take legal advice in order to be able to make informed decisions.

Q. How much will it cost?

The standard charging rate for an individual Will is £80.00 plus VAT being a total of £96.00. In cases where spouses or couples wish to make Wills which contain identical provisions the charge is £100.00 plus VAT being a total of £120.00. We are able to arrange home visits and there is a charge of £20.00 plus VAT applied for additional time which is required in order to make the two trips needed for taking instructions and returning to have the document signed. The rate charged for travelling for home visits is subject to instructions being taken in the Teesside area. An increased charging rate applies for longer distances.

Q. What does intestate mean?

When an individual passes away intestate this means that they have not made a Will prior to their death. The intestacy rules are a set of provisions that apply to determine what happens with the Estate. The rules will say who has the beneficial entitlement in the Estate and who can apply for probate in order to obtain authority to administer the Estate. In most cases it would tend to be the case that, if a person died leaving a surviving spouse, then the spouse would take up the appointment. In the absence of a spouse, it would be children who are 18 years or older. If there are no children then it would be the deceased’s parents and then the deceased’s siblings. The rules do extend beyond the aforementioned categories although such cases are rare in practice.

Q. What is my Estate?

An individual’s Estate comprises of their property and affairs. The Estate needs to be administered in the event of death in order to bring about a conclusion to the deceased’s affairs. An individual’s Estate will usually comprise of their home if owned, bank accounts, savings and investments, pensions and any debts or liabilities that remain outstanding at the time of death.

Q. What if I die without a will?

A. In such circumstances the individual’s Estate would be dealt with in accordance with the intestacy rules as described above.

Q. What happens to my children if I die without a will?

In this case the children would be cared for by the individual or individuals who have parental responsibility. In the case of married couples it would likely be the surviving spouse. It is important that, when an individual has preferences on who should look after children, they consider making a Will which would include Guardian provisions.

Q. What documents will I need to bring with me?

We require evidence of identification in the form of photographic evidence and evidence of address. It is also useful if full details can be provided for the individuals who are going to be named as Executors, Guardians, and beneficiaries.

Will and Inheritance Disputes

We understand that losing a loved can be a difficult and emotional period. It is particularly stressful when you or another party contests the Will or estate. Will, trust or estate disputes are becoming increasingly common as family networks become more complex.

If you are thinking of bringing, or are subject of, a claim there are a number of matters that need to be considered. At Watson Woodhouse we take the time to fully understand the issues that are relevant to your case and offer pragmatic and sensible advice to assist you in resolving it and achieving the best outcome for you.

A relative that I depended on did not make provision for me in their Will, can I claim against the estate?

Subject to you being able to meet the criteria under current law, there are legal provisions that can be relied on to enable an individual who has depended financially on the deceased to bring a claim for a share in the estate.

I do not believe that the deceased had mental capacity at the time they made their Will?

In cases when it can be established that the deceased did not have the correct level of understanding to make a Will, usually supported by medical evidence, it may be possible to have the Will treated as invalid.

I do not think the deceased’s Will meets the correct legal formalities?

In order for a Will to be deemed valid it must be drafted in accordance with current legal requirements. If not then the Will in most cases will be treated as invalid and it's provisions will not apply.