Ben Willans is the partner responsible for the Wills, Inheritance and Probate department.
Ben is also responsible for Lasting Powers of Attorney, Enduring Powers of Attorney and Deputyship.
Ben has successfully completed the Society of Trusts and Estate Practitioners (STEP) Certificate in Trusts and Estates and the subsequent STEP Administration of Estates paper.
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What is a Will?
At its most basic a will is a document which sets how you wish your estate to be managed and distributed on your death. Your estate is, simply speaking, the property you own or money or savings you have at the time of your death.
Your will should ensure that you have also appointed a suitable person or persons to deal with the management and distribution of your estate after your death.
The process of managing and distributing an estate is usually referred to as “administration”. The person(s) named in the will as being responsible for the administration of your estate are called the executor (if they are a man) or the executrix (if they are a woman). The terms executor is often now used to include both male and female administrators.
You can also use your will to appoint guardians for any children you may have under the age of 18. Such a guardian can be the same person or a different person to the executor.
A will can also be a method of limiting the tax liability that may arise on a person’s death. Where joint owners of a property are married or living together a will can also be used to limit the potential care home fees that the surviving spouse or partner may have to pay.
You can change your will or add to your will at any time up to the date of your death provided you retain the mental capacity to do so.
What happens if I die without a Will?
When a person dies without making a will then his or her estate will be an “intestate” estate. This means that the estate will be distributed in accordance with the Rules of Intestacy which can result in a distribution of the estate that the deceased person would not have wanted. A common example of this would be a person’s estate passing to a spouse from whom they were separated but not yet divorced.
Do I really need a solicitor?
It is always sensible to seek legal advice in making a will. There are strict legal formalities that apply to the making of a will. If these formalities are not met they your will would not be valid.
When making a will it is also important to be aware of the issues your executor may encounter your will can then be drafted to make the management and distribution of your estate as simple as possible for your executor.
We can help you to identify important or unusual points which a “DIY” will may not cover and ensure that your will complies with all applicable legal formalities.
What if I need somebody to deal with my estate while I am still alive?
Your will only takes effect on your death. If you need to appoint a person to deal with your estate during your lifetime then you can appoint an “attorney” to deal with your estate. You can find information about appointing an attorney here
Administration of Estates and Probate
Probate is a part of the process of administering the estate of a deceased person. It will normally be necessary for the executor named in a will to apply for probate as part of the administration process, although there are some exceptions notably for estates worth less than £5,000.00.
Probate is obtained when the Probate Registry issues the “Grant of Representation” (also known as the Grant of Probate or Letters of Administration).
The Grant of Representation confirms or grants the authority to administer the deceased person’s estate. The Grant of Representation is usually required by banks and other financial institutions to release monies or transfer policies. Similarly it is required where the deceased leaves land or property which has to be sold.
Before the executor of an estate can obtain a Grant of Representation they will usually be required to confirm the value of the decease persons estate and deal with the payment of any Inheritance Tax which may be due on the estate.
We can assist executors in obtaining the information required by HM Revenue & Customs and in completing the Inheritance Tax return. We can then prepare the application for the Grant of Representation for you.
Once Probate has been obtained we can then assist you with dealing with the formalities involved in obtaining the release of estate funds or the transfer of estate assets. Finally, we can also prepare estate accounts to demonstrate to the beneficiaries that you have administered the estate correctly.
Lasting Powers of Attorney and Deputyship
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (“LPA”) is a document which authorises another person to make and implement decisions on your behalf. They are most commonly used where a person (“the Donor”) wishes to authorise a person (“the Donee”) to make financial decisions or medical decisions on their behalf.
The Donor will normally authorise the Donee to make decisions for the Donor in the event that the Donor is no longer able to make a decision because he or she has lost the mental capacity to do so.
There are separate forms of LPA for matters relating to property and finance and for matters relating to the Donor’s health and welfare.
An LPA also allows the Donor to authorise a Donee to act where the Donor is unable to make or implement a decision because of a physical disability. For example, to deal with the payment of bills by telephone where the Donor has lost the ability to hear or speak but still has mental capacity to decide what they want to do or what they want to happen.
What are the Requirements for a Lasting Power of Attorney?
The most basic requirement is that the Donor has mental capacity at the time they sign the LPA document. If a Donor has already lost mental capacity then any LPA document will be invalid. In such circumstances it is necessary for a person to apply for Deputyship in order to have authority to deal with the affairs of the person who has lost capacity.
In order for the Donee to act as an attorney for the Donor the LPA document must also be registered with the Office of the Public Guardian.
This can be done at any time but it is often advisable to register the LPA document soon after it has been signed by the Donor. This is because it will usually take at least 12 weeks for the LPA document to be registered and the Donee would not be able to rely on the document during that period, even if an urgent problem arose.
We can assist you in advising as to the wording of the LPA document, preparing the LPA documents and dealing with the registration with the Office of the Public Guardian.
I have an Enduring Power of Attorney, is this still valid?
Old style Enduring Powers of Attorney ('EPA') remain valid provided they were created before 1 October 2007. The Donee will not be able to rely on the EPA until it has been registered with the Office of the Public Guardian and an EPA can only be registered once the Donor has lost mental capacity an EPA cannot be registered and relied upon simply because the Donor has lost physical capacity.
It is possible for the Donor of an existing EPA to revoke the EPA and create an LPA if he or she wishes to do so provided the Donor retains mental capacity.
We can assist the Donee of an EPA with registration of the EPA where the Donor has lost capacity.
An order for Deputyship can be made to appoint a person (“the Deputy”) to manage the affairs of person who has lost mental capacity. Such an order will usually be made in circumstances where the person who has lost mental capacity failed to execute an Enduring Power of Attorney or a Lasting Power of Attorney.
The process of applying for Deputyship can be time consuming and complicated. We can assist you in obtaining the necessary medical reports and preparing the necessary draft Order and application to the Court of Protection and in dealing with the issuing of the standard notices relating to the application.