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Wills
What is a Will?
A Will is a document which sets out who will receive your assets when you die.
It also allows you to appoint executors who will be responsible for dealing with your estate and making sure your beneficiaries receive their inheritance.
Why is it important to make a Will?
To protect your family
If you do not have a Will then your estate will pass under the rules of intestacy which are set out in legislation. These rules provide for the estate to pass to certain blood relatives in a particular order, so who inherits will depend on who survives you.
The intestacy rules make no provision for unmarried partners so they will receive nothing from your estate if you do not have a Will. These rules can be quite complex and by making a Will you will avoid your estate being dealt with under the intestacy rules.
To look after your children
If you have minor children, you can appoint guardians in your Will who will look after your children in the event of your death. A testamentary guardian appointed in a Will acquires parental responsibility for the child and therefore a legal ability to have a say about the child’s long term care and upbringing.
Probate
When someone dies it can be a very challenging time for family and friends, and it can be overwhelming trying to work out what needs to be done to finalise their affairs.
What is Probate?
A Grant of Probate (or Letters of Administration in intestate estates) is a Court sealed document that gives the person named on it the legal authority to deal with the assets of the person who has died.
How do I apply for a Grant?
The first stage of the estate process is to identify all the assets and liabilities of the person who has died and have them valued. The executors must then complete an inheritance tax return and arrange to pay any inheritance tax due on the estate. The application for the Grant can then be filed with the Probate Registry who will issue the Grant. Once the Grant is obtained the executors can collect in all the assets and distribute the estate to the beneficiaries.
How long does probate take?
Administering an estate can be a lengthy process as there are often a lot of different parties involved in the process, including banks and other financial institutions, the DWP, HMRC, and the Probate Registry. Even a very straightforward estate can often take around a year to administer and if there are any complicating factors it can take several years to finalise the estate completely.
Administration of Estates
Once the Grant is obtained, arranging for the encashment of the assets, including the release of funds from bank accounts, the sale of shares and investments, the sale of any property etc. The funds would be collected into our client account, saving you the need to open a designated executors account with your bank.
Once all the assets have been collected, any debts and liabilities of the estate will be paid.
All the deceased’s tax matters will be finalised and any necessary tax returns filed. This will include finalising their inheritance tax, income tax, and capital gains tax, if necessary.
We will also prepare a detailed set of Estate Accounts showing all the money which has been collected in and paid out on behalf of the estate and this will show each beneficiary how the share due to them has been calculated.
Once all the above matters have been dealt with, the final distribution of the estate can be made.
Lasting Powers of Attorney
What is a Power of Attorney?
A Power of Attorney is a document which allows you to appoint someone to assist you with your affairs and there are several different types of Power of Attorney. Our specialist power of attorney solicitor can provide you with expert advice throughout the process.
General Power of Attorney
This is normally a short document which often just gives your attorney the power to deal with a particular matter on your behalf. It could, for example, be limited to dealing with the sale of a specific property for you. Once that particular task is completed the attorney’s power would end. Alternatively, it might allow them to deal with all of your financial affairs but only for a limited time, for example if you were taking a trip abroad and they were to deal with things whilst you are away.
A general power of attorney only lasts for 12 months and would need to be signed again if you wanted your attorney to continue acting after the expiry of that time period. A general power of attorney also ceases immediately if the person who has granted the power loses capacity.
Lasting Powers of Attorney
There are two types of Lasting Power of Attorney, one which allows your attorneys to deal with your finances, and a separate power that allows them to make welfare decisions on your behalf.
Property and Financial Affairs
A Lasting Power of Attorney for Property and Financial Affairs gives your attorneys the power to deal with your financial matters such as managing your bank accounts, paying your bills, or even selling your house.
You can authorise your attorneys to use the financial Lasting Power of Attorney whenever you choose, but they will also be able to continue acting for you if you lose capacity and become unable to deal with your own finances.
Health and Welfare
A Lasting Power of Attorney for Health and Welfare may only be used by your attorneys if you have lost capacity. Therefore, if you are able to make a medical decision for yourself then it will always be your decision. However, if you become unable to make those choices then your attorneys could step in and arrange care for you.
Why is it important to have a Lasting Power of Attorney?
If you become unable to deal with your affairs yourself and you do not have a Lasting Power of Attorney in place then it can be very problematic for your family. Once you lose capacity and no longer understand the purpose of having a power of attorney then you will not be able to make one. This can lead to a situation where no one can access your bank accounts and so it is not possible to deal with things like paying for your care.
Many people assume that if they are married their spouse will automatically be able to make decisions for them but this is not the case. Without a registered Lasting Power of Attorney your spouse will not be able to access your accounts and even accounts held in joint names could be frozen by your bank if one of you does not have capacity.
Court of Protection
What is the Court of Protection?
The Court of Protection is a specialist Court which makes decisions on financial and welfare matters for people who lack the capacity to make decisions for themselves. If you need to make an application, H & B Solicitors specialist Court of Protection solicitor can support you with this process.
What is a Deputy?
A deputy is someone who is appointed by the Court of Protection to make ongoing decisions for someone who lacks capacity. Often it will be a friend or family member of the person lacking capacity who applies to be their deputy but it could also be a solicitor appointed by the Court.
What are the responsibilities of a Deputy?
A deputy is responsible for ensuring that any decisions they make are in the person’s best interests. They must do what they can to explain their decisions to the person and help them understand any decisions which are being made on their behalf.
A deputy also has an obligation to keep records of the finances which they manage on the person’s behalf and provide an annual report to the Court explaining any decisions they have made.
Deputyship Applications
Applying for a Deputyship Order can be a lengthy process and it will often take 6 months or more for the Order to be granted. Therefore, if someone you know requires assistance it is advisable to start the process as soon as possible to avoid delays.
The first stage of the process will be to arrange for a doctor to assess the person who you believe lacks capacity, as the doctor will need to provide a report in a specific format to the Court confirming that the person is unable to manage their own affairs.
A number of Court application forms must be completed, including a schedule providing detailed information about the person’s assets. It is important therefore to start collating this information at the earliest opportunity. Detailed information about your own situation must also be provided to the Court so that they may assess whether you are a suitable candidate to be appointed as the deputy.
If the person is in a care home and you are seeking permission from the Court to sell their home to fund the care, there may also be deprivation of liberty considerations. The Court may wish to consider whether it is appropriate for the person to be denied the ability to return to their home in the future and reports from the Local Authority may be required to support the application.
H & B Solicitors are specialists in making Court of Protection Deputyship applications and can advise and support you throughout the process to ensure your application is processed as smoothly as possible.
Inheritance Tax Planning
No doubt you will have worked long and hard during your lifetime to build up a nest egg to pass down to your future generations. The last thing you want is for a large portion of it to be paid in inheritance tax. Planning early for tax means that you can protect your wealth for the next generation in the most tax efficient way possible.
Later Life Planning
Advances in medical care and healthier lifestyles mean we are all enjoying longer and more active lives. This makes it even more important to start planning early for your future. If you have a family, it is particularly important to give you the peace of mind that they will be well provided for in the future. It also allows you to make things as easy as possible for them when the time comes that you need their assistance.
Wills
Having an up to date Will ensures that all the wealth you have worked hard to build up over your lifetime passes down to the next generation in the way you envisage. It allows you to protect your loved ones and secure their future when you are no longer here.
Trusts
Part of your plan might include putting trusts in place to protect your assets or to protect beneficiaries who might be vulnerable. When used correctly, trusts can help you plan for inheritance tax and residential care fees, as well as safeguarding assets for future generations.
Residential Care Planning
What is residential care planning?
With the number of people requiring residential care rising year on year, it has never been more important to plan for your future care, and our specialist residential care solicitors can support you with this. Even the most basic care homes normally cost around £1,000 per week so the costs of care can be dramatic. The earlier you start to plan the more likely you are to be able to make sure you have protected some of your assets to pass down to future generations, whilst also ensuring you have the funds to live comfortably yourself and meet any future care needs you might have.
If you need care the local authority will carry out an assessment of your finances to determine whether you are entitled to any help from the state with your funding. Normally if the value of your capital assets exceeds £14,250 then you will be expected to pay something towards your care yourself, and if you have assets of more than £23,250 you may not receive any state funding at all.
Why is it important to plan early for residential care?
It is vital to plan ahead for these costs otherwise you may end up in a situation where your home has to be sold to pay for your care, leaving little or nothing left to pass down to your family when you die.
H & B Solicitors can help you get a plan in place by looking at your estate as a whole and ensuring your assets are structured correctly to meet your needs. This might involve looking at how you and your spouse or partner hold your home, if you own it together, and updating your Wills to include trusts to help you protect some of your assets.
We can also liaise with financial advisors to help you consider things like long term care annuity products to make sure your care is always funded and you never run out of money.
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