Wills and Probate

Wills

Making a Will

What happens on my death if I do not have a Will?

If you do not have a will, when you die you are deemed to have died “intestate“.

This means the Intestacy Rules come into play and your estate will be divided between your relatives in accordance with the Rules.  In some instances the Rules can cause problems for the surviving relatives – for example there is no automatic transfer of the whole of the deceased person’s estate to their husband or wife – how much the remaining spouse is entitled to depends upon the family circumstances, for example whether there are children etc, and the amount received depends upon the total value of the assets left by the deceased person.  In some instances it could be other family members who become beneficiaries even though this would not have been the intention of the person who has died.

Unmarried partners are also at risk under the Rules as the notion of a “common law” husband or wife has no meaning in English Law in relation to division of estates on intestacy.  Even though unmarried couples may have been together for many years under the Rules they are not recognised as a relative.  Therefore the surviving partner would potentially receive nothing from their deceased partner in the event of their death and may have to resort to potentially time consuming and expensive litigation to prove their right to receive a benefit – clearly not something anyone would wish to consider at any time, particularly after losing a loved one.

How Can These Problems be Avoided?

The solution to all of these problems is to make a Will.

Who Should Make a Will?

Everyone should make a will.  This includes married couples (either with or without children) single people, divorcees and people who have been widowed.

What Puts People Off Making Wills?

There are many reasons why people do not make wills.  These include feeling they do not have sufficient assets to make making a will worthwhile, fearing the process will be long winded, complicated and expensive and even that by thinking about making their will they may be “tempting fate”.

How Can We Help?

At Rollasons we aim to make making a will as simple and convenient as possible and we hope to be able to dispel some of the fears and concerns referred to above.

Regarding costs, we offer competitive fixed rate prices for single wills and wills being made by couples (whether married or unmarried).  We can also offer home visits for clients who are unable to come into the office or visits to hospitals or nursing homes  in the local area should these be required.  We will be happy to supply no-obligation quotations in respect of our fees on request.

Regarding complexity, we aim to make making your will as stress free as possible – we will meet with you to discuss your requirements and then produce a draft will for you to consider.  We aim to deal with clients in clear plain English, without the need for “legal jargon” that can be off putting!!  Only when you are happy will we arrange a further meeting to see you to sign the originals.  We also offer a free storage facility for your Wills after they have been made and provide copies to you for your own records.

To help you consider the points you need to think about before making your Will click here for our Will Questionnaire (which is based on the approved Law Society Questionnaire) which guides you through the matters you should consider.

What If I Have Already Got a Will?

We would suggest it may be appropriate for you to review your will, to see whether your circumstances have changed – for example have you married or divorced? (in which case wills can be invalidated), have you had any children since you made your wills? (in which case you will need to think about guardians for them in the event of your death) or have any beneficiaries you have included in your will predeceased you?  If there have been any changes to your family circumstances your will may need reviewing to ensure it still does what you want it to.

You may also wish to review your will if your financial status has changed since making it – for example do you now need to think about possible tax planning if the value of your estate has increased?

It may be that following your review you are happy your will does not need updating or amending, but at least you will have considered matters before deciding you do not need to do anything at the present time.

What Do I Do Next?

If we can be of any assistance in connection with making wills, reviewing old wills or if you wish to discuss matters in more detail then please do not hesitate to contact us.

Probate & Estate Administration

When someone passes away someone has to deal with their affairs.  This is called administering their estate.

I have been appointed as an Executor, what do I have to do?

If you have been appointed as an Executor in a Will, you have been asked by the person who has died to act on their behalf in connection with the administration of their estate.  This involves establishing the value of the deceased person’s assets, applying for the Grant of Probate, making sure any outstanding bills or invoices are paid from the estate, dealing with any specific gifts (whether money or items) and then ensuring the remainder of the estate is paid to the correct people who are mentioned in the Will.

This can be quite a daunting task, especially if the person who has died has made complicated provisions in their Will, if they have a large estate and inheritance tax needs to be paid or considered, or if they have an estate with unusual assets – such as offshore trusts or accounts or foreign property.

The Deceased did not leave a Will.  What do I have to do?

If there is no Will the person who has died is deemed to have died intestate.  This means that one of the persons named in the Intestacy Rules will need to apply for a Grant of Administration to deal with the deceased person’s property.  The Administrator will then be responsible for ensuring the estate is distributed in accordance with the Intestacy Rules.

What Rollasons can do to help you?

We can act on your behalf in connection with the administration of the estate of the deceased person, including dealing with all the relevant Bank or Building Societies, applying for the relevant Grant from the Probate Registry, dealing with payment of any outstanding bills from the estate assets, preparing the estate accounts for approval and distributing the estate in accordance with either the Will or the Intestacy Rules.

When someone has died it is a very stressful time and if you would prefer us to deal with all aspects of the estate administration we are able to offer this service, many clients find this helpful as they do not have to deal with these matters on top of losing a close relation or family member.

What if I just want to ask you to deal with obtaining the Grant and then I wish to deal with the actual administration of the estate myself?

You can instruct us to do as much or as little as you wish in connection with the administration of the estate.  If the estate is relatively small or only consists of one or two assets, then it may be you would prefer to deal with the actual administration yourself, but ask us to obtain the relevant Grant from the Probate Registry to enable you to deal with matters.  We would be happy to discuss matters with you regarding this in more detail if you do decide we can assist you.

Is it expensive to appoint Rollasons to deal with matters relating to a deceased person’s estate?

We charge fees in relation to estates on the basis of the amount of time spent dealing with the estate. There is no charge based on the value of the estate, and you will know you are only be charged for the amount of time which is spent in connection with the matter. We are happy to provide you with details of our hourly charging rate on request.

It is sometimes difficult to give a definitive estimate of costs at the outset of a matter as every estate is different and matters which may cause complications can be discovered half way through the administration of the estate. However, based on our experience and the assets known to be in the estate at the point of you instructing us we will provide you with an estimate of our fees which we expect to charge in connection with the administration.  We appreciate being able to budget for costs is important and we will always keep you informed of progress throughout the administration of the estate and let you know if there is anything we have come across which is likely to cause an increase in the fees. We issue bills monthly so costs can be reviewed and monitored on a regular basis.

If we are instructed to obtain the relevant Grant only and you propose to deal with the administration yourself we will normally be able to provide a fixed quotation for this.

I have a Dispute about a Will or about the way in which the administration of the Will is being carried out – Can you Help?

Rollasons are also able to offer assistance in connection with disputes about Wills and also disputes about the way in which an estate is being administered.  Further details about these services are available upon request.

What do I do next?

If we can be of any assistance in connection with any of the matters referred to above or if you wish to discuss matters relating to a deceased person or their estate in more detail then please do not hesitate to contact us

Lasting Powers of Attorney

What is a Lasting Power of Attorney?

The Mental Capacity Act (2005) protects people who may not be able to make decisions for themselves because of issues such as:

  • Dementia
  • Learning Difficulties
  • Mental Health Problems; and
  • Stroke or head injuries

The Act covers people in England and Wales and allows people to plan in advance for other people to make decisions on their behalf when they may lose the capacity to make decisions themselves.

The Act is supported by a Code of Practice which gives details and guidance as to people’s roles and responsibilities when making decisions on someone’s behalf.

A Lasting Power of Attorney is a legal document which enables you to chose who you wish to make decisions on your behalf, should you lack the mental capacity to be able to make decisions on your own behalf.

There are two types of Lasting Powers of Attorney :

1. Property and Financial Affairs

This type of Power allows decisions to be made regarding your finances, including paying bills, dealing with your bank, collecting benefits and paying your bills.  It can also be used to sell your house and deal with all your financial affairs.

2. Health and Welfare

This type of Power allows decisions to be made regarding treatment, care and medication and where you live.

A Lasting Power of Attorney can only be made by completing a Lasting Power of Attorney Form.  The Power is completed in advance of someone losing mental capacity and it can be kept until it is needed.  The Power needs to be registered with the Office of Public Guardian.  The Office of the Public Guardian (OPG) is part of the Ministry of Justice and they manage the registration of all Lasting Powers of Attorney and maintain the Register of Lasting Powers.

Points to Consider When Making a Lasting Power of Attorney

A Lasting Power of Attorney is a powerful document and you should carefully consider the following points before deciding to proceed :

  • Who you wish to appoint to act as your Attorney? You can appoint one person, more than one person (in which case you need to decide whether they must all act together in all decisions or whether they can act independently, or indeed whether they can act together in relation to some decisions but independently in relation to other decisions). We can guide you with these decisions and discuss the various options with you.
  • Whether you wish to appoint a replacement Attorney who would act in the event that your main Attorneys were unable or unwilling to act? This can be useful in some circumstances, particularly if your Attorney becomes incapable. Again we can discuss these options with you.
  • The extent of Power you wish to grant to your Attorney? It is possible to include restrictions and guidance for your Attorney to follow (they will be bound by the terms of the Mental Capacity Act and the Code on Conduct in any event) but it is possible to make further specific provisions within the Power. We can advise you as to the best way forward in this regard.
  • Who will act as your Certificate Provider? To complete the process for creating a Lasting Power of Attorney it is necessary for (at least one) independent person to provide a certificate to confirm they are happy you are fully aware of the nature and extent of the Powers you are granting when signing the Lasting Powers and that you are competent and capable to make the Powers. There are two types of Certificate Providers – category A and category B and we can provide you with further details regarding the two types of providers. We are also able to assist in providing the necessary certificates if you wish to instruct us to do so. We can also discuss with you the other requirements for a valid power to be created, particularly notification of a named individual of the registration of the Power (only one person is required if there is at least one Certificate Provider).

What Next?

We would be happy to discuss matters further with you regarding the creation of either type of Power.  Please contact our friendly Wills and Probate Department who can offer further assistance and guidance, and work with you to ensure the Powers are validly created, registered and in place in case they are needed in the future.

We can provide you with a competitive quote for completing the work and timescales for registration of the Power with the OPG. Due to the popularity of the Powers there is currently quite a long waiting period for Powers to be registered with the OPG.

For further information about what to do if there is no Lasting Power of Attorney in place, please see our related page relating to Court of Protection, Appointment of Deputies and Registration of Enduring Powers of Attorney

Court of Protection

Registration of Enduring Powers of Attorney.

The Court of Protection and Appointment of A Deputy

Before the introduction of the Mental Capacity Act 2005 the system of creating Powers for someone to act on your behalf in relation to your affairs was dealt with under Enduring Powers of Attorney.  Enduring Powers of Attorney (EPA) which were validly created prior to the change in legislation are still valid.  However, the main difference with them and the new style Lasting Powers of Attorney is that if you become mentally incapable your attorney has an obligation to register the EPA at the Court of Protection.  The registration follows a formal procedure and we are able to assist with such applications should they become necessary.  There are safeguards in place to prevent an Attorney registering an EPA unless it is necessary.  Once the EPA is registered it cannot be revoked, and the Attorney can continue to act on your behalf.

What Happens If I become Incapable and there is No EPA or Lasting Power of Attorney In Place?

In this instance it would be necessary for an application to be made to the Court of Protection for a Deputy to be appointed who can look after your affairs.  This application would normally be made by a family member (if there are family members available to act), but in some circumstances applications can be made by someone other than family if there are no relatives available or willing to act.

The application process is lengthy and complicated and normally  takes some time to be processed by the Court.  Therefore there could be a delay in any proceedings which require your signature – i.e. if you were selling your house, or the house needed to be sold for your care – then the process would have to be stopped while an Order from the Court is obtained to allow your Deputy to act on your behalf.

We can guide you through the application process, assist with the completion of the necessary application forms, service of papers upon the parties concerned, and deal with any queries or other matters arising during the application process.  Please contact us for further details of the services we offer in this regard.

If you have been appointed to act as an Attorney or a Deputy how can we help?

Acting as an Attorney or a Deputy on behalf of someone is a very responsible position and many clients require guidance and assistance to fulfil their obligations.  We are able to offer advice and guidance to people who have been appointed.  Please contact us for further details of the services we offer.

We can also offer assistance to Deputies who have already been appointed by the Court with matters such as accounts, selling properties and general administration of the individual’s affairs.

What to do Next?

If we can be of any assistance in connection with enduring powers of attorney, court of protection applications or if you wish to discuss matters in more detail then please do not hesitate to contact us.