Writing a Will makes sound sense for everyone, irrespective of age or personal circumstance. None of us know what is around the corner and without a Will, your estate may not be divided in accordance with your wishes, or in the most tax efficient manner.
Surprisingly few people realise that dying intestate, i.e. without a Will, means you have no say in what happens to your estate. Instead, under the 'Rules of Intestacy', your estate will be divided in a pre-determined way laid out by legislation and people whom you may not wish to benefit could in fact do so.
As many as one in three people die intestate, but would they have made a Will if they had known the implications of not doing so? The answer is almost certainly ‘yes’!
So what are the implications? Without a Will, spouses do not necessarily inherit everything. Even if you own your house jointly, when one of you dies the other’s right to inherit the house in it’s entirety will depend upon whether you own it as beneficial joint tenants or tenants in common. Furthermore, if you die intestate and you have surviving children, grandchildren or great grandchildren, your spouse will only inherit all your personal property and belongings, the first £250,000 of your estate and just half of your remaining estate, whilst the remaining half passes to your children.
The same applies to couples in a civil partnership. However, those who live together without any formal arrangement are not entitled to anything whatsoever on the death of their partner.
Making a Will is one of the most important things you can do for yourself and your family. The law surrounding Wills and Estates is however complicated, so it is best to your Will drawn up by a professionally trained solicitor to avoid mistakes or lack of clarity which could make your Will invalid. You should also update your Will to reflect any change in circumstances and subsequent wishes, for example if you divorce or remarry.
At GHP Legal we have a team of highly qualified specialist lawyers who have acted as trusted legal advisers to several generations of many families from all walks of life. We will discuss your wishes with you and prepare a bespoke Will to reflect your wishes. Furthermore, we are qualified to advise you on a wide range of associated matters such as funding care costs and catering for your needs should you become incapacitated.
If you are unable to travel to our offices due to ill-health we can arrange for a member of the GHP Legal team to visit you at home. After assessing your requirements we will provide an estimate of cost so that you know what to expect on completion of the matter. If you prefer, you can appoint us as Executors of your Will to administer the disposal of your estate.
After someone dies the executors of their estate (appointed in their will) must apply for a Grant of Probate. This is a legal document, issued by a division of the court called the probate registry, which names the person or persons entitled to administer the estate of someone who has passed away. The document is required to enable the executors to deal with some, if not all of the assets of the deceased’s estate.
Some assets, such as bank accounts, may be closed upon the production of a death certificate and completion of a claim form (dependent on the balance). However, executors must first obtain a Grant of Probate before they can deal with assets such as a house.
Before they can obtain a Grant of Probate, the executors need to gather valuations of all the deceased’s assets and liabilities so that they can complete an Inheritance Tax return to confirm whether or not Inheritance Tax is payable on the estate. Once this has been done, any Inheritance Tax that is owed must be paid before the executors can lodge the application for Probate. They will need to swear an oath to confirm they are the person or persons entitled to deal with the estate before submitting the application to the probate registry, who in turn will issue the Grant of Probate shortly afterwards.
GHP Legal regularly acts as Executors for clients’ estates. In cases where we are not the executors of a Will we can provide help and assistance at any point with obtaining the Grant of Probate.
Inheritance and Tax Planning
GHP Legal has acted for many generations of the same families, advising clients at all stages of their lives and assisting them in implementing tax efficient arrangements aimed at protecting their wealth - during their lifetime and on their death.
When you book an appointment at one of our offices, a member of our highly experienced Private Client team will assess your individual needs and provide you with wide ranging advice about the most appropriate structures and mechanisms that can be put in place to suit those needs.
At GHP Legal we will help you to plan your future with the confidence of knowing that you are able to protect your estate and ensure that your future wishes are fulfilled. As well as explaining the complexities of Inheritance issues and your IHT position, we will also advise you of opportunities available to you to avoid or reduce your tax liability.
One of the biggest worries our clients have these days is funding care costs in later life, particularly if they require residential care. We can advise about care funding options, along with steps you can take whist you are still fit to ensure proper management of your affairs in the event that you should become incapacitated.
We believe that clients who are fully prepared for the future have the best peace of mind, which is also why, once we have assessed your requirements, we always provide you with a case plan and realistic estimate of costs associated with your matter.
Powers of Attorney
None of us know what might be around the corner, so appointing someone to look after your affairs in the event that you cannot do so yourself is a wise move. It ensures your affairs will be managed by a person of your choosing and in exactly the way you want them to be.
Contrary to common belief, if you are married or in a civil partnership, your spouse or partner would not automatically be able to access your bank account or pensions, or legally make decisions about your healthcare if you became mentally incapacitated.
You can, however, appoint a person or persons known as attorneys to look after your affairs in a Power of Attorney. You can appoint up to four attorneys to either assist you in making decisions or to make decisions on your behalf. There are three different types of Power of Attorney; Ordinary Power of Attorney; Lasting Power of Attorney and Enduring Power of Attorney.
An Ordinary Power of Attorney allows one or more persons to make financial decisions on your behalf while you still have mental capacity to make your own decisions. This could be useful if for example you are going on an extended holiday, have to go into hospital or find it hard to get out and about.
A Lasting Power of Attorney (LPA) can either be used when you still have mental capacity or you can specify that it is only to come into force if you lose mental capacity. There are two types of LPA, one for financial decisions and one for health and care decisions. The LPA enables you to guide your attorneys by including preferences and you can also restrict the types of decisions your attorney can make. Alternatively, you can leave it to their discretion to act in your best interests.
An attorney appointed by a financial LPA must keep accounts and make them available to you, or to your solicitor or a family member if you lose capacity. An LPA for health and care decisions can only be used if you lose mental capacity.
Enduring Powers of Attorney were replaced by LPAs on 1st October 2007, but, if you made and signed an EPA before that date, it should still be valid. However, its use may be limited compared to the new style LPA’s and you may wish to consider replacing it. In particular, an old style EPA would not confer authority to make Health and Welfare decisions for you.
You could be forgiven for thinking that setting up a Power of Attorney is something you can put off until your later years or your health deteriorates to the extent that you become incapable of taking care of your own affairs. Suppose though that you had a serious accident or a stroke, or got dementia and didn’t realise how advanced your condition had become, then your loved ones would need to go through the lengthy and costly process of applying to the court to access your bank account and pay for your care.
At GHP Legal we have specialist lawyers who can not only set up an LPA for you but also act as your attorney if you do not have anyone you trust to perform this role.
Sometimes it is necessary to add extra protection when leaving assets to vulnerable children, or perhaps partners of off-spring that you may not wholly trust. If you are worried about your assets getting into the wrong hands or being mismanaged, our specialist lawyers can help you set up a Trust that will afford that protection. Trusts are also useful in planning for Inheritance and Capital Gains Tax purposes.
There are many different types of Trust, with many different applications, but with the right advice they will all offer the protection you are looking for. At GHP Legal we have many years’ experience of setting up Trusts and can advise on the best route for you to take in order to safeguard your assets and your loved ones and minimise your tax liabilities.
- Solicitors for the Elderly
- Society of Trusts and Estates Practitioners
- The Law Society’s Probate Section