Frequently Asked Questions
- Do I have to have a will?
- It is not a legal requirement, however it saves your loved ones further pain at an emotional time and ensures your wishes are followed when you die.
- What happens if I die without making a will?
- In England and Wales the rules of intestacy govern who inherits your estate if you do not have a will. The administrators of your estate would have to follow these rules and they may not reflect your wishes.
- You are property lawyers, why should we trust you to make a will or deal with any probate matter?
- Our team has a wealth and depth of knowledge and experience with wills, trusts and probate and as property often forms part of an estate, the two areas complement each other. Our team can explain all the issues involved.
- Do I need probate?
- There are circumstances where a grant is not needed. For example, where the estate is less than £5,000 and only includes cash funds held in deposit accounts, you would not normally need to obtain a grant in order to obtain the money. However where the estate includes certain assets – like land or shares – you will always need to obtain a grant.
- Who obtains probate?
- Anyone who needs to sort out the affairs of someone who has died and needs to access their bank accounts, investments and other assets in order to pay their debts and inheritance tax and distribute their estate. They cannot do so without a grant of probate or (where there is no will) letters of administration.
- What is the probate process?
There are 3 main stages to obtaining the grant of probate:
- 1. Investigating the extent of the estate. This includes all information about the assets and liabilities of the person who died, even relatively insignificant ones. This involves contacting the relevant banks, building societies, insurance companies and any other relevant organisations to obtain proper valuations of the other assets, including stocks and shares, the deceased’s home and any liabilities.
- 2. Completing tax returns and applying to the court for the grant. The form which must be completed depends on different circumstances, including the size of the estate. The longer form requires a detailed breakdown of the valuation of the estate. At this stage the executors will need to work out any allowable deductions and tax reliefs and, if that value exceeds £325,000, calculate the amount of inheritance tax due. Once the tax return has been completed in full and filed, the application to the probate registry should be made. Both HMRC and the probate registry may raise issues with the return or the application for probate.
- 3. Collecting in the assets, paying the debts of the person who has died, distributing the remaining estate and producing final estate accounts for the beneficiaries and a final tax return for the deceased. The distribution of the remaining estate should be made to the appropriate beneficiaries in accordance with the terms of the will or the statutory order of distribution if there is no will.
- What is a Property and Financial Affairs LPA?
- A Property and Financial Affairs LPA covers decisions about your finances and property. If there comes a time when you can’t manage your finances anymore, the attorney will do this for you. This can include paying your bills, collecting your income and benefits, or selling your house. However, if you wish to, you can restrict their powers, or place conditions on what they can do. It can only be used once it has been registered at the Office of the Public Guardian (OPG). The OPG is responsible for the registration of LPAs. It can then be used even while you have mental capacity to deal with these things yourself.
- What is a Health and Welfare LPA?
- A Health and Welfare LPA allows the attorney to make decisions on your behalf about your health and welfare, if there comes a time when you are unable to make these decisions for yourself. A Health and Welfare attorney could make decisions about where you live, for example, or day-to-day care including your diet and what you wear. You can also give your Health and Welfare attorney the power to accept or refuse life-sustaining treatment on your behalf. You will be asked whether you wish to do this or not on the form, and you will need to state your intention clearly.
It’s important to be aware of the effect this decision can have on any advance decision that you have previously made. If you allow your attorney to make these treatment decisions for you, this will overrule any previous advance decision. If you choose not to give your attorney this power, your advance decision will still stand.
A Health and Welfare LPA can only be used once the form is registered at the Office of the Public Guardian and you are in a position where you don’t have the mental capacity to make decisions about your own welfare.
- What are the benefits of making a LPA?
There are a number of reasons you may wish to make a LPA:
- It can be reassuring to know that, if you are unable to make a decision for yourself in the future, your chosen person will make these decisions for you.
- Making a LPA ensures that the person you want to make decisions for you will be able to do so. This prevents a stranger, or someone you may not trust, from having this power.
- A LPA can reduce problems that may occur in the future. It can be more expensive and time-consuming for family or friends to try to gain a similar power in the future.
- Making a LPA can help prompt discussions with your family or others about your future wishes.
- What happens if I don’t make a LPA?
- If you don’t make a LPA and become unable to make certain decisions for yourself, there may be a time when no one can do this for you, as no one will have the legal power to act on your behalf. This can make things like paying bills, including care fees, difficult, as well as making decisions about your future care.
In this case, someone may need to apply to the Court of Protection to become your Deputy. This can give them similar powers to that of an attorney. A relative or friend can apply to be your Deputy, or a professional may be appointed. The process of becoming a Deputy is a lot more time-consuming and expensive than a LPA. There are also ongoing requirements that a Deputy must fulfil such as paying an annual fee and also submitting an annual report, so it can be easier for someone to be an attorney rather than a Deputy.