Making a Will 

Making a Will is an essential part of life planning and ensures that when you die your wishes will be carried out.  Without a Will in place your assets will pass in accordance with intestacy rules which will not always reflect your wishes or your circumstances.  This is particularly the case where couples are unmarried or where there are minor children (under the age of 18). 

Making a Will can seem like a daunting task but we will ensure that you are guided through the process with care and that your Will is drafted to ensure your wishes are acted upon as you would like.  We will tailor our advice to best suit your needs and ensure that your assets are dealt with in the most tax efficient way. 

Amending a Will 

A Will is not set in stone and can be amended at any time before death (providing you have the mental capacity to do so).  It is therefore very important to review your Will over time and particularly after any major life events such as marriage, divorce or the birth or death of a beneficiary (the person you want to inherit). 

There are also changes in the law from time to time and we therefore recommend that you consider your Will every 5 years to check that it still meets your requirements. 

Understanding the Different Types of Will 

Single Will 

A single Will is used most often for a person not in a relationship but can also be used for couples where they want to specify individual wishes.   

Mirror Wills 

These are Wills for a couple that will ‘mirror’ each other and result in the same outcome.  This is usually where a couple wants the surviving spouse to inherit and then for the same beneficiaries to inherit on the second spouses death.  The couple does not need to be married or in a civil partnership but the wishes for distribution will be the same.  It is important to note that with a mirror Will, either party can still amend their Will at any time and therefore the outcome will not be guaranteed.  

Life Interest Trust Wills 

These are usually used in circumstances where there has been a second marriage and you want to preserve part of your Estate for your children from a first relationship or where you want to protect assets from care home fees or second marriage succession.  Usually a particular asset, such as the family home, will be placed in a Trust on the first death but for the benefit of the survivor for the remainder of their life (particularly where the desire is to provide a home for life).  Then on the death of the survivor the asset will pass in accordance with the first deceased’s Will ensuring that their share of the asset passes to the beneficiaries they want to inherit. 

Discretionary Trust Wills 

Discretionary Trust Wills are used to place your Estate (or part of it) into a Trust on your death.  You can choose your Trustees  (the people you want to manage the Trust) and your beneficiaries but then the Trustees will have ultimate discretion as to what, how and when assets of the Trust are gifted and to whom. 

Terminology in Wills 

Estate:  The assets that you own such as money in bank accounts, property, antiques or paintings, jewellery, shares etc. 

Executor: The Will appoints an Executor or Executors to be the person or people responsible for carrying out your wishes after you have passed away.  They will be responsible for notifying banks and other assets holders of your death, paying any debts, taxes or liabilities and then ultimately distributing your Estate in accordance with your wishes. 

Guardian: If you have minor children (children under the age of 18) then you should appoint a guardian in the event that both parents die.  A guardian will be responsible for care of any children under the age of 18 at the time of your death.  We suggest that one of your Executors is also appointed as a guardian but this is not necessary. 

Beneficiaries:  These are the individuals or organisations (often charities but not necessarily) that you wish to inherit from your Estate. 

Distribution: The act of gifting the assets to your beneficiaries out of your Estate.   

Details of our charges can be found here 

LASTING POWERS OF ATTORNEY

Lasting Powers of Attorney (LPAs) are needed in the event that you (or a loved one) lose mental capacity and are unable to manage your own affairs.  There are two different types: ‘Property and Finance’ and ‘Health and Welfare’ and you can choose to either take out both or just one depending on your circumstances.  Having a power of attorney in place ensures that you are able to choose the person or people you trust to manage your affairs in the event that you are not able to yourself.  It means that you are in control of who will step in should the worst happen. 

Property and Finance LPA 

This type of LPA is used to manage all finance administration and gives your attorney the power to make financial decisions or decisions regarding your property. 

• Access and use bank accounts  
• Manage investments and work with independent financial advisors 
• Manage pensions 
• Pay bills and tax 
• Buy or sell property 

Health and Welfare LPA 

This type of LPA is used to allow your attorney to make decisions in relation to refusal or consent to medical treatment.  It includes a section in relation to life sustaining treatment whereby you can also give your attorney the ability to consent or refuse to medical treatment that may involvement life sustaining treatment. 

• Refusal or consent to medical treatment 
• Decisions on where you might life 
• Care packages 
• Multidisciplinary team discussions and arrangements for care 
• Discussions with social services or other care providers 
• Medical care and access to your medical records 

It is important to note that the Property and Finance LPA can potentially be used even if you still have mental capacity – this is particularly useful if you want your attorneys to step in to assist you if you are physically struggling (for example with hearing on the phone) but you want to direct them as to how to manage things.  The Health and Welfare LPA can only ever be used if you have lost mental capacity. 

Mental capacity is a fluctuating event and can be time and decision specific.  For example, you may have capacity to decide whether you wish to consent to the flu jab but you may not have capacity to decide on whether you are safe to remain living at home.  Your attorneys are under a duty to ensure that wherever possible, you are given the ability to make your own decisions.

For both types of LPA you have the ability to include further instructions and preferences to provide guidance or restrictions on the decisions that your attorneys can make.  We can guide you through these and provide examples where necessary.  We will ensure that our advice is tailored specifically to you and that your powers of attorney are drafted to best reflect your needs and wishes. 

Please note that once registered, lasting powers of attorney cannot be amended and in order to change these, you will need to apply for a new power of attorney and revoke the previous one. 

Lasting Powers of Attorney on Death 

It is important to note that lasting powers of attorney are only valid during life and the attorneys power to manage your affairs will end on your death.  Probate is the legal right to deal with someone’s affairs on death and this will usually be handled by the person appointed as Executor in your Will or your closest living relative if you do not have a Will.  If you would like to discuss making or updating a Will we can also assist with this. 

What happens if I do not make a Power of Attorney? 

If you do not have an LPA in place and you lose mental capacity then either a family member or a member of social services will need to make an application to the Court of Protection to appoint a deputy to act for you.  This means that you would have no control over the person put in charge of managing your finances. 

The costs of this type of application are far greater and the length of time to complete the application is much longer.  The application can only be made after you have lost mental capacity and a specialist report would need to be compiled for the Court to prove that you no longer have the capacity to manage your own affairs.  There are more restrictions in place for the Deputies to adhere to and the process is far more stringent. 

One of the difficulties with not having an LPA in place is that because you cannot make the application until after loss of mental capacity, it means that there may be a long wait before anyone is able to access your bank accounts to pay bills or stop standing orders and this can have a significant knock on effect in funding for care homes etc.  It can be extremely stressful for family members left in this situation. 

Costs of Lasting Powers of Attorney 

Terminology of Lasting Powers of Attorney 

Donor: The person making the Power of Attorney 

Attorney: The person or people appointed to act on behalf of the donor 

Deputy: Someone appointed by the Court of Protection to act on behalf of a person that has lost mental capacity. 

Court of Protection: Specialist Court that deals with all issues relating to people that have lost mental capacity. 

Capacity: The ability to make decisions about a particular matter at the time the decision needs to be made. 

Office of the Public Guardian:  The Public Guardian is an officer established under Section 57 of the Mental Capacity Act. The Public Guardian will be supported by the Office of the Public Guardian, which will supervise Deputies, keep a register of Deputies, LPAs and EPAs, and investigate any complaints about Attorneys or Deputies.  

Lasting Power of Attorney (LPA):  A Power of Attorney created under the Mental Capacity Act appointing an Attorney to make decisions about the Donor’s personal welfare (including healthcare) or deal with the Donor’s property and affairs. 

Enduring Power of Attorney (EPA): an old style Power of Attorney that is no longer created.  You may come across old drafted and unregistered EPAs.  An EPA can only be used after loss of capacity and must be registered with the Office of the Public Guardian before it can be used. 

Details of our charges can be found here 

ADMINISTRATION OF ESTATES

Losing a loved one can be an incredibly difficult time and this is often intensified by the added responsibility of dealing with their Estate.  This can be a daunting experience and very time-consuming which is why we are able to take on as much or as little of the administration of you need.  We can deal with everything from notifying banks and asset holders of the death to applying for the Grant of Probate (or letters of administration) to paying all taxes, finalising the administration and distributing the assets.  

For all deaths after January 2022 most applications can now be submitted online via the HMCTS portal.  We can assist you in completing all relevant tax paperwork, drafting and submitting the legal statement and sending all relevant information to the probate registry.  Where it is not possible to make an online application, we can arrange the paperwork needed for a paper application and submit this to the appropriate registry.   

Is the Estate taxable? 

There are allowances available to every individual to allow them to gift to loved ones without paying any inheritance tax.  Currently, the individual nil rate band (NRB) allowance is £325,000.  There is an additional allowance called a residence nil rate band (RNRB) of £175,000.  In order to qualify for the RNRB you must own or have owned a property and are passing it to a direct descendant (children, grandchildren etc).  This gives a total of £500,000 that you can gift without paying inheritance tax, anything over this will be taxed at 40%. 

There are additional rules for married couple or couples in a civil partnership.  Gifts between spouses are inheritance tax free and the allowances are transferable.  This means that a married couple can give away up to £1,000,000 tax free.  Anything over this will be charged at 40%.   

There are additional complexities around estates worth over £2,000,000 as this will reduce the amount of available RNRB that you can claim.  For estates over £2,500,000 there will be no ability to claim the RNRB and your estate will only be able to claim the NRB allowances. 

It is important to note that inheritance tax must be paid within 6 months of the date of death to avoid paying interest.  If you are unable to pay the inheritance due (for example because you need to sell the property) then you can apply to pay by instalments but you will need to pay interest on any tax not immediately paid.   

Grant of Probate 

When is a Grant of Probate required? 

There are no definitive rules as to when you will require a Grant and many asset holders or banks will have their own specific rules that you will need to adhere to.  As a general rule, you will usually need a Grant of Probate where there are either assets held in an individual’s name in excess of £50,000, or where there are shares held, if there is a property held as tenants-in-common or in their sole name and for some life insurance policies or pensions. 

Who needs to apply for a Grant? 

Where you have a Will, it is the person appointed as an Executor that can apply for the Grant of Probate.  If the Executors appointed in the Will are unable or unwilling to act then there are specific rules as to whom is able to apply to the Court to administer the Estate.   

What information do I need in order to apply for a Grant? 

You will need to confirm that gross and net value of the Estate in order to apply for a Grant of Probate.  This means that you will need to confirm the total value of all assets held by the deceased person and the total value of all debts owed by the Estate (such as funeral costs, care costs etc). 

Letters of Administration 

Where the deceased person does not have a valid Will in place then they will be deemed to have died intestate and you will need to apply for Letters of Administration in place of the Grant of the Probate.  Both give the same powers to the person applying to administer the Estate but whilst someone appointed in a Will is called an Executor, the person appointed on intestacy is called an administrator. 

Details of our charges can be found here 

POST DEATH VARIATIONS 

A deed of variation, also known as a deed of family arrangement or a variation of a Will, is a legal document used to make changes to the distribution of an Estate after someone has passed.  Whether you have made a decision about wanting to vary your entitlement under a Will or if you are unsure if it is right for you, we can discuss with you your particular circumstances and work out the best options available to suit your individual needs. 

Purpose 

A deed of variation allows beneficiaries named in a Will to alter their inheritance even if it goes against the original terms of the Will. 

Reasons for using a Deed of Variation 

Sometimes a Will provides a gift to a beneficiary and they may not wish to inherit or it may not be the most tax effective way to distribute the Estate and the beneficiary may want to vary their gift under the Will.  This could be where a Will has not be updated for a long time and the beneficiary no longer needs the gift or where the gift would increase their Estate value to such an extent that it would make their Estate taxable should anything happen to them.  If a beneficiary is entitled to a gift under the Will then they are entitled to complete a Deed of Variation to pass their gift to a different beneficiary (for example their children) or multiple beneficiaries.   

Beneficiaries may also want to equalise inheritances between beneficiaries if circumstances have changed significantly since the Will was drafted.   

Legal Requirements 

• A Deed of Variation must be completed within two years of the date of death in order for this to be effective for tax purposes   
• The Deed must be in writing and signed by the beneficiaries in the presence of a witness 
• All beneficiaries must agree to the variation  
• A beneficiary making the variation will need to be over 18 and have mental capacity to agree to the variation 

Although deeds of variation can be an invaluable tool for beneficiaries in adjusting the terms of a Will, you should be very careful if considering this to avoid unintended tax consequences. 

Details of our charges can be found here 

DECLARATIONS OF TRUST

A declaration of trust is a legal document used to establish the way a property is financially divided between two or more individuals as tenants-in-common or  to establish an individuals’ beneficial interest in a property. 

Why do I need a declaration of trust? 

Where two or more people own a property they may have different shares or may have made different contributions to the purchase of a property.  Owning a property is one of the biggest financial steps you can take and often, you will certainty about that investment and what you will receive if it is sold in future.  Similarly, you may inherit a share of a property and want to have evidence of the share of equity you now own.   

A declaration of trust can also be useful in establishing where a loan has been made, for instance where parents assist in the purchase of a property but wish to recover that investment if the property is sold.  This can also protect their investment where a couple is loaned money but ultimately separate as it makes it clear that part of the property is owned by the parents giving the original deposit monies. 

Does a Declaration of Trust affect my mortgage? 

A declaration of trust is only between the parties owning a beneficial share of the property.  It does not affect your mortgage in that your obligations to your mortgage provider are joint – both parties will still be equally liable for ensuring the mortgage is paid.   

Do I need to register this with the land registry? 

The land registry is mainly interest in the legal title of the property.  You can have up to 4 owners listed on the land registry but you could have more people who are entitled to a beneficial ownership.  Usually, a restriction will be registered with the land registry if not already in place but the declaration of trust will not be registered. 

We can assist with drafting a declaration of trust to suit your needs and specific circumstances.  We will discuss the options available in terms of fixing shares or floating shares and how you wish to take into consideration contributions such as mortgage payments or improvement works. 

Details of our charges can be found here 

COSTS

The Costs for Will drafting 

The majority of our Wills are drafted on a fixed fee basis depending on the complexity of the Will.  If you have a bespoke Will request or require a complex Will structure, or if you need a Will drafting within a particularly tight timeline (for example a deathbed Will) then these will be completed on an hourly rate basis.  There may be additional charges to third parties such as the Land Registry in some circumstances. 

Single Will	£350
Mirror Wills	£500
Life Interest Trust Mirror Wills	£750
Discretionary Trust Mirror Wills	£800
Amendments	£100-250

The Costs for Lasting Powers of Attorney 

Lasting Powers of Attorney are drafted and registered on a fixed fee basis.  There will be an additional charge payable to the Office of the Public Guardian of £82 per LPA. 

Single LPA for one person	£650
Single LPA for a couple	£850
Both types of LPA for one person	£750
Both types of LPA for a couple	£1,250
Ordinary Power of Attorney	£550

The Costs for Obtaining a Grant of Probate or Letters of Administration

In some circumstances we can offer a fixed fee price for making an application for a Grant of Probate or Letters of Administration.  These costs are broadly set out below but some Estate may not be chargeable to tax but still require a full tax return to be completed and these will be charged as a taxable Estate.  Fixed fee matters are discretionary and will be offered on a case by case basis.  There will also be an additional charge for the Probate Registry.  Currently their fees are: £273 plus £1.50 per copy of the Grant required. 

Tax free Grant only application	£1,500
Taxable Grant only application	£2,500

Estate Administration will be charged on a hourly rate basis.