Wills, trusts and estates

If you die without a Will, the distribution of your estate (your personal possessions, money and property) will be dealt with under the rules of intestacy (a set of legal rules which dictate who will benefit). The intestacy rules are rigid and may not reflect your wishes, for example, they make no provision for unmarried partners. The intestacy rules also govern who is entitled to deal with the administration of your estate.

Making a Will is the only way to ensure your estate passes to your chosen beneficiaries. It also enables you to choose your executors, appoint guardians for young children, include cash gifts or gifts of specific items, and detail your funeral wishes. It may be appropriate to include a trust structure in your Will to offer a degree of protection for your chosen beneficiaries or to allow flexibility for future generations to use the trusts for their own wealth/tax planning.

Even if you are married, your spouse is not necessarily entitled to benefit from your whole estate on your death. The intestacy rules are constantly subject to change and the outcomes of dying without a Will can be surprising and often unjust. Making a Will is the only way to ensure your loved ones are provided for in accordance with your wishes.

The intestacy rules do not make any provision for unmarried partners. The best way to ensure a cohabiting partner is provided for is to make a Will.

As well as dealing with the distribution of choosing who will benefit from your estate and choosing who will administer your estate, your Will can guide your family and friends on your funeral wishes, include gifts of specific items (such as your car or jewellery), cash gifts to individuals or charities and specific provision for your agricultural and business assets. You can also appoint guardians for young children and detail your funeral wishes.

Your Will can also be a useful tool to retain a degree of control over how your assets are dealt with after you die and for inheritance tax planning.

You should review your Will regularly to ensure it continues to reflect your wishes and circumstances. As your personal and/or financial circumstances change, you should consider updating your Will. Examples include:

• Marriage will automatically revoke any Will you had in place previously.
• Change in family circumstances, for example having children or grandchildren.
• Divorce
• Significant changes in your financial situation

In any event, we suggest reviewing your Will at least every three years to assess whether there have been any changes to the law or tax allowances which would necessitate a change to your Will.

A Lasting Power of Attorney is a legal document which allows you to appoint one or more individuals (known as your 'Attorneys') to act on your behalf if you became incapable of making decisions for yourself. A Lasting Power of Attorney can be made and will be a valid document but must be registered with the Office of the Public Guardian before it can be used. We can deal with the registration process for you as part of our service.

There are two types of Lasting Power of Attorney:

• Property and Financial
• Health and Care

These are two separate documents and you could appoint different people if you wish.

As the authority given to your Attorneys is very wide-ranging, it is important to appoint someone you trust and who is well suited to the role that you are asking them to undertake.

This document gives your Attorney(s) the power to make financial decisions on your behalf, which could include (but is not limited to) managing your bank account(s), paying your bills, and selling your property. This document can be used with your consent if you have mental capacity and without your consent if you lack mental capacity.

This document gives your Attorney(s) the authority to make decisions about your care and personal welfare if you lack mental capacity. This authority includes making decisions about your diet and daily routine, your medical treatment and where you live. You also have the option of whether to give your Attorney(s) the authority to make decisions on your behalf about the acceptance or refusal of life sustaining treatment.

Your Attorneys cannot use a Lasting Power of Attorney to force medical professionals to administer a particular type of treatment. 

A Lasting Power of Attorney can only be made whilst you have the required mental capacity. If you no longer have mental capacity, your friends or family members would have to apply to the Court of Protection to be appointed as your 'Deputy' to be authorised to make decisions relating to your property and financial affairs. A Deputy would carry out the same role as an Attorney, however, in that case, you would have no control over who is appointed or when and how they can act. The Court of Protection process is longer and more costly than the preparation and registration of a Lasting Power of Attorney. A Deputy also has additional duties to report to the Court of Protection on an annual basis with additional supervision fees payable to the Court and insurance costs to pay for the required annual insurance policy.

The Court of Protection will rarely agree to appoint a Deputy to generally make decisions about your health and welfare, preferring one off application to make specific decisions. By its very nature, this type of application is often expensive.

A Lasting Power of Attorney (or an Enduring Power of Attorney made under the previous system) can be cancelled at any time provided you have mental capacity. If you wish to change your Lasting Power of Attorney in the future, you cannot amend an existing document and as such, you would need to create a new one.

You can choose more than one Attorney to act on your behalf If more than one Attorney is appointed, you can also choose how you would like them to work together. You can choose to appoint them jointly, jointly and severally or jointly in respect of some decisions and jointly and severally in respect of other decisions.

You can also appoint one or more 'Replacement Attorneys' who would act if your original Attorneys became unable to act due to their own mental incapacity, death, bankruptcy, divorce (in the case of a spouse who is an attorney) or unwillingness to act.

The powers conferred on your Attorneys are very wide, so it is important to choose people you trust to act in your best interests.

A Grant of Probate is a legal document which proves the last Will and Testament of the deceased and confirms the Executor’s authority to administer the estate. A Grant of Probate is usually required to be able to deal with a deceased person's assets.

'Probate' can also be referred to as the process of administering a deceased's estate.

If someone dies without leaving a Will, Administrators will apply for a Grant of Letters of Administration to a deceased's estate instead of a Grant of Probate.

The work involved in administering an estate will depend on its value and the individual assets and liabilities involved. The immediate priorities are to register the death and make the funeral arrangements.

The Executor(s) have a duty to ensure the estate is administered in accordance with the Will (or the rules of intestacy, as the case may be). This includes, but is not limited to, dealing with all assets and liabilities, paying any tax which is due and ensuring that the estate is paid to the correct beneficiaries.

Acting as an Executor can be very time consuming. There are legal duties which must be fulfilled and timescales which must be met. Executors can often come under pressure from bereaved families but can also be held personally liable if creditors are missed or the estate is paid to incorrect beneficiaries, even if this is done inadvertently.

The current amount each individual can give away on death and free of inheritance tax (also known as the 'nil rate band') is £325,000. This amount can be reduced by lifetime gifting so it is important to seek professional advice if you are intending or have made substantial gifts (over £3,000) in recent years. This includes the total value of your estate including all jointly held assets such as a joint bank account. There may be exemptions or reliefs available to reduce the amount of Inheritance Tax payable. These rules can be complex and a professional advisor can assist with maximising the reliefs available. 

Professional fees depend on the complexity of the estate and the amount of work involved. Our team of specialists charge on an hourly rate for dealing with the estate. The work required to administer an estate will increase if the deceased's affairs are complex, if there is Inheritance Tax to pay or if the Will contains trusts which need to be administered.

In addition to professional charges, there are also fees payable to third parties. These include fees for the Executors swearing the Oath and payment to the Probate Registry for obtaining the Grant of Probate. Executors might also wish to carry out financial asset searches and Will searches.

Fees in connection with Probate and administering an estate are payable out of the estate and not by the executor personally.

The time it will take to administer an estate depends on the nature and complexity of the deceased’s affairs. The Executors must collate the necessary information and make enquiries into the deceased’s affairs before they can apply for a Grant of Probate or a Grant of Letters of Administration. It can often take up to 6 months (or longer) before the Grant of Probate or Letters of Administration is granted. It can then take at least a further 6-12 months before the administration of the estate is finalised.

If the estate is subject to Inheritance Tax, the process can take much longer as the Executors must finalise the Inheritance Tax position and obtain clearance from HMRC.

The administration can become further protracted if the Will is challenged or a claim arises under the Inheritance (Provision for Family and Dependants) Act 1975. Please see our Disputed Wills, Trusts and Estates page for more information on claims against estates.