The way we help clients plan for their passing is to draft a Will, which is a document that captures everything from last wishes and organ donation preferences, to how your estate should be distributed and who you would like to care for any minor children that were in your care. A Will is the only legally binding way your legacy can be protected and enforced in death. Our Wills and Probate team are experienced in dealing with both complicated estates that involve trusts, inheritance and tax planning, property transfers, legacy gifts, Will and inheritance disputes or perhaps debt, as well as uncomplicated estates where no-one is contesting the Will and the distribution of assets and possessions are straight forward.
When drafting a Will, we go through a number of scenarios with you so that if the unexpected does happen, loved ones will be clear as to your wishes and know how to act accordingly. Losing a friend or family member is already difficult enough without having the extra pressure of having to make final decisions on behalf of another person. That is why planning early and having a Will in place is recommended – this acts as a set of instructions for loved ones in your passing, removes the uncertainty and allows them to honour your wishes.
Without a Will in place, people may assume their estate will still go to their family and loved ones, but this is not always the case. When a person dies in England without a valid Will, government inheritance rules will apply, which are known as Rules of Intestacy. These rules strictly set out who may inherit parts of an estate and limits how much any one person can receive – regardless of asset or property value. These distributions will be made according to your relationship with the person and problems can arise if you’re in a relationship but not married, which can see loved ones left out.
As well as supporting you in making a last Will and testament, we can also aid you in making a Living Will. This is a special type of document that sets out your wishes should you become infirm and lose the capacity to make decisions for yourself or communicate them. A Living Will is also known as an Advance Healthcare Directive or an Advance Decision and captures how you’d like to be cared for and whether you’d like medical intervention, or if you’d like to refuse treatment and in what circumstances. This allows you to remain in control even if you can’t later.
Appointing a Power of Attorney gives another person control over your affairs should you no longer be able to make or communicate decisions about your health, welfare or finances, or you no longer wish to do so. You can only appoint a Power of Attorney if you have the mental capacity to do so and understand the authority that you are conveying to that person. You can specify that a person with lasting Power of Attorney powers will only be able to make decisions on your behalf about medical treatment and care options, or that they can also take control of your finances. As this person will be able to make final decisions, you should only appoint someone you trust – this can be a family member, friend or even a trusted professional, such as a solicitor – and they must be over 18 years of age. If you would like us to, a member of our Wills and Probate team can act as your Power of Attorney and ensure your best interests. You also have the option of appointing more than one person to serve as your Power of Attorney. In doing so, you must specify if either of your Power of Attorneys can convey a decision on your behalf separately, or if both must agree and give consent.
In the event that you’re no longer able to make or communicate decisions about your affairs and wellbeing because you lack the mental capacity to do so, the Court of Protection may appoint a Deputy to make decisions on your behalf. This may be necessary if you have not already appointed someone to act as your Power of Attorney. A Deputy may be appointed to make decisions for an incapacitated person on an ongoing basis or for one-off decisions. Reasons someone may lack mental capacity to make decisions might include being affected by severe learning disabilities, dementia, or suffering from a serious brain injury or illness.
A Deputy can either be appointed to take care of someone’s property and financial affairs, or to make decisions about a person’s welfare, care and medical treatment. Under the Mental Capacity Act 2005, Deputies and Power of Attorneys have similar responsibilities, but there are practical differences in how those roles are fulfilled. A Power of Attorney has a greater level of freedom to act on behalf of the person who appointed them how they choose. A Deputy, however, is subject to a greater level of scrutiny and must report to the Office of the Public Guardian (OPG) each year. The OPG requires very detailed information about any expenditure made on behalf of the person who has lost capacity. Deputies are also required to pay an annual fee towards the cost of their supervision. We can offer support for Deputies in their duties, including helping to complete the OPG report.
Probate, also known as a grant of representation, is a process that everyone must go through if they are dealing with the administration of a deceased estate. Once granted, Probate gives the person legal authority to access any assets in the deceased person’s name or to have the assets released to them and transferred into an executorship account. Different processes apply depending on whether the person did or did not leave a Will. If a person did leave a Will, any named executor will be able to apply for Probate. If a person did not leave a Will, only those who are the person’s next of kin, spouse or child may apply for Probate. People who were not married or in a civil partnership with the person will not be granted Probate and instead the Rules of Intestacy will apply. Our team are on hand to help if you have been appointed the executor in the Will or if you are seeking to act as the administrator in lieu of a Will.