If you do not have a Will, you are missing out. The main benefits of making a Will are as follows:-

• You choose who you give your assets to. Without a Will your assets could end up going to someone you would not want them to.
• Having a Will avoids disputes about who is entitled to what following your death.
• You choose who deals with your affairs following your death.
• With careful planning a properly prepared Will can in some circumstances save your money from the tax man by reducing your liability to pay inheritance tax.

It is also worth remembering that if you do have a Will it is very important that you look to update and review it regularly. We would recommend that you review your Will every few years to ensure that its contents still reflect your wishes and that the Will is still as tax efficient as it can be.

Our friendly and approachable Probate Lawyers can help you prepare a Will or update an existing Will. Making or updating a Will does not have to be expensive. Contact us to discuss your requirements and obtain a cost estimate.

Remember it is never too early to make a Will but it could end up being too late.

When a person dies, someone has to deal with their affairs. This is called 'administering the estate'.

If the person has left a Will

If the person has left a will, the Will usually names one or more people to act as the Executors of the Will - that is the people to administer the Estate. If you are named as an Executor of a Will, you may need to apply for a Grant of Probate.

The Grant of Probate is the official document which Executors may need to administer the Estate. It is issued by the Probate Registry.

If there is no Will

If there is no Will (this means a person has died “intestate”), the process is more complicated. The Administration of Estates Act 1925 sets out who can act as administrator - that is who has the legal right to deal with the affairs of the person who has died. The administrator is usually a close relative of the person who has died, if there is such a relative. There can be more than one person with an equal right to deal with the Estate.

Anyone who has this right can apply to the Probate Registry for what is known as a Grant of Letters of Administration. This is the official document which allows Administrators to administer the Estate.

Where the person who is to benefit from the Estate is a child, the law requires that more than one person must act as administrator. 

When a Grant of Representation is needed

A Grant of Representation is not always needed. For example, if the person who died has left less than £5000 in total or owned everything jointly with someone else, a Grant may be unnecessary.

In other cases, some financial organisations, such as banks, may agree to pay funds to a Personal Representative without a Grant of Representation. This is commonly known as the Small Estate’s procedure. It is always worth asking as this may achieve a saving in costs.

A Grant of Representation will normally be needed when the person who has died left:

• more than £5000; 
• stocks or shares; 
• a house or land; or 
• certain insurance policies.

How to get a Grant

We at David W Harris can assist you by applying for the Grant of Representation on your behalf. Our staff will be more than happy to give you a costs estimate for the work involved.

Responsibilities of Personal Representatives

Personal Representatives are responsible for making sure that the Estate is administered correctly. Where a Will has been left, the Personal Representative must make sure that the wishes of the person who has died are followed. If there is no Will, the Personal Representative must follow the rules of intestacy as set out in the Administration of Estates Act 1925. We at David W Harris can if necessary explain the rules to you.

Inheritance Tax

Personal Representatives are also responsible for finding out if Inheritance Tax is due as a result of a person's death. If this tax is payable, the Personal Representative has to make sure that it is paid.

The liability to pay Inheritance Tax will depend on the following:

• The value of the property and belongings of the deceased at the date they died; 
• The value of any gifts which they gave before dying and who the gifts were given to; 
• The value of certain Trusts from which the dead person benefits; or 
• Which people benefit under the Will or under the rules of intestacy (known as the beneficiaries).

Our staff at David W Harris can advise you on the above.

Likely timescales

Finalising the affairs of someone who has died can take a long time. It can take up to one year and perhaps longer if matters are not straightforward. The process may involve dealing with banks, building societies, insurance companies and HM Revenue & Customs.

An Estate cannot be finalised until all claims to it have been received. Individuals have 6 months from the date when Probate was granted to make claims against an Estate. There are other factors which can affect the time taken such as any legal disputes or claims against the Estate, whether Inheritance Tax needs to be paid and ensuring that matters relating to Income Tax, Benefits Agencies and pensions have been resolved.

Arguments between family members, beneficiaries or Personal Representatives also cause delay. Such disagreements must be resolved before the affairs of the person who has died can be settled.

Costs

We at David W Harris will be happy to give you an estimate of the charges which are likely to be involved in administering an Estate. It is often not possible to know immediately what may be involved but we should be able to give you a reasonable estimate of the likely costs of the work needing to be carried out.

Whilst the costs will undoubtedly be a consideration, we at David W Harris also pride ourselves on having approachable and sympathetic staff with whom clients will hopefully feel at home at what is a very difficult time. 

Do you worry about what would happen to your money or property if you became unable to manage them yourself?

Do you wish to ensure that someone you trust is able to deal with this management at a time when you cannot see to your affairs?

If you answer yes to these questions, you should consider speaking to David W. Harris & Co. Solicitors about a Lasting Power of Attorney (LPA).

What is an LPA?

A Lasting Power of Attorney (LPA) is a legal document that you (the ‘Donor’) make using a special form. It allows you to choose someone (the ‘Attorney’) you trust to make decisions about things such as your finances and property on your behalf at a time in the future when you are no longer able to or you may lack the mental capacity to make those decisions yourself.

An LPA can only be used when it is registered with the Office of the Public Guardian (OPG).

There are two different types of Lasting Power of Attorney:

A Property and Affairs LPA allows your Attorney to make decisions on your behalf about your property and affairs, including paying your bills, collecting your income and benefits or selling your house subject to any restrictions or conditions. It does not allow your Attorney to make decisions about your personal welfare.

You can appoint a Property and Affairs Attorney to manage your finances and property while you still have capacity as well as when you lack capacity. For example, it may be easier for you to give someone the power to carry out tasks such as paying your bills or collecting your benefits or other income. This might be easier for lots of reasons: you might find it difficult to get about or to talk on the telephone, or you might be out of the country for long periods of time.

A Personal Welfare LPA allows your Attorney to make decisions on your behalf about your personal welfare, including whether to give or refuse consent to medical treatment on your behalf and deciding where you live.

These decisions can only be taken on your behalf when you lack the capacity to make them yourself, for example, if you are ill or unconscious.

What will a Property and Affairs LPA let the person I have chosen do on my behalf?

A Property and Affairs Attorney, using a registered LPA, will be able to make exactly the same kind of decisions you can make now about your money and property. The person will only be able to make decisions within the scope of the powers you have given them and these decisions might include:

• Buying or selling any property (land, buildings or other assets) you own;
• Opening, closing or operating any bank, building society or other account containing your funds;
• Claiming, receiving and using all benefits, pensions and allowances on your behalf.

This list is only intended to give examples of the types of decisions that can be made on your behalf using a Property and Affairs LPA.

Who can make an LPA?

Anyone aged 18 or over, with the capacity to do so, can make an LPA appointing one or more Attorneys to make decisions on their behalf. You cannot make an LPA jointly with another person; each person must make his or her own LPA.

What are the safeguards?

• The requirement that the LPA must be registered with the OPG before use;
• The requirement to identify someone to provide a Part B Certificate confirming, amongst other things, that you understand the purpose of an LPA and the scope of powers you are giving to your Attorney(s);
• That certain persons chosen by you called ‘named persons’ are notified before registration of the LPA;
• The requirement for the signatures of the Donor and Attorney(s) to be witnessed.

What is a Certificate Provider?

A Certificate Provider is a person that you must select to complete a Part B Certificate of the LPA form confirming that you understand the LPA and that you are not under any pressure to make it.

A Solicitor at David W Harris & Co. can be your Certificate Provider and is a very important safeguard of an LPA.

Why do I need this Certificate?

The Certificate is a vital part of the LPA document. Without it, the LPA is not valid and cannot be registered.

When does my LPA have to be registered?

Your LPA can be registered at any time after you have made it and cannot be used until it has been registered. The LPA is made when it has been completed and signed by all those who are required to sign.

The benefit of registering the LPA shortly after it is made is that it will be ready to be used by your Attorney(s) when it is needed. If an application to register your LPA is made a long time before it is needed you may need to look at the registered document from time to time to make sure the contents are still relevant to your circumstances. In this situation you may wish to contact the OPG for up to date information on LPAs.

Conclusion

From a practical and financial standpoint, it is clearly advisable to have an LPA. When a family member becomes incapable, it can be distressing enough for the relatives without having to go through the long and expensive process of applying to the Court of Protection for a Deputy to be appointed. In effect, an LPA takes away the decision-making from your relatives as you have made the necessary decisions in advance and have stipulated what is to happen in the event of you being unable to cope with your affairs.

Without legal authority a relative cannot automatically take over your finances, as banks and other institutions will not accept another person’s signature unless they have a legal document such as a registered LPA.

An LPA together with a valid Will ensures that your future is taken care of so that as little distress and expense is caused as possible.

David W. Harris & Co. Solicitors are experienced in advising on and dealing with all aspects of Lasting Powers of Attorney.

Unfortunately, despite the best planning, disputes can arise in relation to a Will or the administration of a deceased person’s estate. Sometimes the issue is about what is the true meaning of a Will or whether or not the Will is valid. Sometimes the dispute is about how assets are being administered or it can relate to disputes over who has been included (or who has not) within the deceased’s Will.

With disputes of this type, it is important that you get expert and sensitive advice. Our Probate Lawyers can provide you with that advice. If you find yourself involved in such a dispute then please contact us so that your options can be considered.