There are many ways in which Aston Brooke can assist with the probate process ranging from limited fixed fee guidance on certain aspects such as assistance with form filling and procedures, to dealing with the entire estate administration process – especially where the assets and liabilities are complex, inheritance tax may be payable, or there may be missing beneficiaries or trusts involved.
Why do I need a Will?
Making a Will is a way of communicating your wishes once you are no longer here. It gives you peace of mind as you can make sure that your beloved ones are provided for, and it also guides your family at a time of great emotional stress.
Other benefits include:
- Choosing your own Executors and Trustees
- Choosing Legal Guardians for your children who are under 18
- Providing for your family
- Making charity donations
- Setting up trusts for beneficiaries which can be fixed or discretionary
- Providing for your pets
- Planning for your beneficiaries’ future
- Minimising Inheritance Tax
- Choosing your burial wishes
- Avoiding the situation where you don’t leave a will (known as Intestacy) whereby government rules determine who is entitled to benefit under your Will
How can we help?
Aston Brooke’s specialists will guide you every step of the way and will offer you tailor made advice. We recommend clients to change their Wills every 3-5 years as personal circumstances change. We can provide legal advice and assistance in a variety of issues which include:
- Preparing, reviewing and amending wills
- Inheritance tax planning
- Estate planning
- Advising on issues in wills such as guardianship, adoption and divorce
- Advising on contested wills
- Advising on trusts
- Lasting Powers of Attorney
Why do I need a Lasting Power of Attorney?
We also suggest putting in place Lasting Powers of Attorney (LPAs). Your Will will deal with your assets once you are no longer here but your LPAs deal with your assets in the event you lose mental capacity.
An LPA is a deed which is put in place between you (the donor) and someone you trust (the attorney). There are two types of Lasting Powers of Attorney:
1.Health and Welfare
This type of LPA deals with your health and your medical treatments. It allows your attorneys to make decisions regarding for instance life sustaining treatments.
2.Property and Finance
This type of LPA deals with your bank accounts, your shares and your property. You authorise your attorneys to make decisions regarding handling your bank accounts and dealing with your property.
Once all the parties to the LPA have signed, the LPAs will then be registered at the Office of the Public Guardian in order to take effect. There is a registration fee of £82 per LPA.
When it matters most, Aston Brooke can support you in many ways with all aspects relating to the probate process. From limited fixed fee guidance on basic elements, for example form filling and procedures, to relieving the burden of coping with the administration process for the entire estate.
Unlike the “traditional” approach used by many solicitors, whereby they offer only to deal with the whole probate process based on a percentage cost of the finalised value of the estate, we offer a flexible service so that you receive the correct level of help and professional support you need.
The Probate Process
When someone dies, it is important to local the Will as soon as possible in order to establish whether the deceased made any funeral wishes in their Will and who is appointed as the Executor. The family then deals with the funeral and with registering the death at their local Registrar. Often a family member (spouse or children) is appointed as the Executor in the Will. The Executor’s powers comes from the Will and in certain circumstances in order for the Executor to deal with the estate, they will need to apply for Probate.
Administering an estate takes time and so it can take from 6 months to a year if it is a straightforward estate or years if it is more complex.
If there is a Will, the estate will pass to the people named in the Will. If there is no Will, the Intestacy Rules will apply meaning that certain people will inherit.
The Role of Executors
Executors are the persons named in a will by the deceased as individuals the deceased chose to deal with the administration of his estate and if applicable, will apply for probate. Their role is to collect assets, pay off liabilities including any inheritance tax and then to distribute assets according to the Will. Some probate matters are straightforward; others involve significant legal and practical challenges.
Executors are not legally required to accept their appointment and can renounce their role. In general, executors are family members and also the beneficiaries under the will. Due to the technicalities of administering an estate, it is usual for the executor to appoint a firm of solicitors to guide the executor or to take over the administration all together.
The executor’s duties include gathering in all of the assets and liabilities, preparing estate accounts and possibly enabling any necessary tax return to be completed.
The executor’s duties vary depending on the type of estate but generally they tend to deal with the following:
- Inform the next of kin, close family and any potential heirs of the death and of their role as executor.
- If necessary, register the death and assist with funeral arrangements.
- Possibly appoint a solicitor to help administer the estate
- Obtain a copy of the will and carry out instructions within it.
- Ensure assets are listed and if necessarily made secure, for example, locating the house keys and making sure the property is insured.
- Locate any life insurance policies and paperwork such as membership forms, shares and stocks, bonds and pension information.
- Find all household bills.
- Collect together all tax records. At this stage do not dispose of things such as business-related paperwork, tax records, wage slips etc. even if they appear to be out of date.
- If the deceased is a business owner all paperwork relating to the business including VAT records and accounts will be needed.
- Gather details of professional advisors such as accountants, solicitors etc.
- Complete a tax return if needed.
- Pay off any outstanding debts.
- Locate beneficiaries and creditors and if necessary advertise in local or national papers for any missing beneficiaries.
- Distribute the assets after payment of liabilities, including any tax.
- Executors should set up an account solely for the purpose of dealing with the estate so that any money paid to the estate is easy to see.
Is a Grant of probate always needed?
There are circumstances in which a formal grant may not be required, notwithstanding that it is always safer to obtain one. Generally, if a deceased had very limited assets, it is possible that a Grant may not be needed, and the below factors may help in determining whether one is needed:
- Has a bank or insurance company, National Savings or Government body, holding the Deceased’s money or policies or pensions, asked for a Grant?
- Did the Deceased own property (house, land & buildings) at the date of death and which was not held as ‘Joint Tenants’?
- Did the Deceased have more than £5,000 in total Estate left at the date of death?
- Did the Deceased have foreign money or property at the date of death?
- Did the Deceased have business interests, beyond just self-employed trade?
- Was the Deceased domiciled in UK?
How can we help?
We can assist in a variety of ways:
- Help determine the size of an estate for Probate and Inheritance Tax purposes
- Prepare an application for the Grant of Representation on your behalf and help lodge the required forms with the relevant organisations to collect monies due to the estate and settle any outstanding debts
- Advise on deeds of gift or deeds of variation
- We can arrange the transfer or sale of any shares and our Residential property team can handle the sale of any property or land owned by the deceased. property or land owned by the deceased
Aston Brooke can also assist you in case the deceased left no Will and an Administrator will have to be appointed in order to apply for Letters of Administration. This is when the Intestacy Rules come into place to establish who is entitled to inherit. We can discuss this further.
What is a Living Will and how does it work?
A Living Will, or Advance Directive as it’s known in law, is a statement which expresses a person’s preferences about medical treatment in the event of becoming incapable of making or communicating a treatment decision.
It can take the form of:
- An instruction directive giving information about the kind of treatment an individual wants (a request directive), or does not want (a refusal directive)
- A proxy directive in which the maker appoints someone else to make and communicate treatment decisions on his or her behalf.
- A combined instruction and proxy directive
In England and Wales, recent Court decisions on medical treatment and end of life issues have held that a refusal directive (a directive to refuse treatment) will be valid and enforceable at common law provided that:
- It is clearly established.
- It is applicable to the circumstances.
- The maker was competent when it was made.
- The maker was not unduly influenced by anyone else.
- The maker contemplated the situation that eventually arose.
- The maker was aware of the consequences of refusing treatment.
- It does not request any unlawful intervention or omission.
- It does not request treatment the medical team considers to be clinically inappropriate.
There are many circumstances in which a Living Will can be used. Very careful thought needs to be given by the maker before they ask for a Living Will to be made.
They may wish to consider some of the following:
- Whether to have their life prolonged by drugs or artificial means when there is little or no hope of recovery.
- Whether to refuse certain types of treatment.
- Whether to be kept alive long enough to enable an organ donation to take place.
- Whether to receive maximum treatment.
- Treatment preferences; i.e. to be resuscitated or to have surgery, or to be put on a breathing machine.
- Which people doctors should consult before a treatment decision is made.
A copy of your Living Will is lodged with your doctor or hospital and attached to your medical records. This makes sure that your treatment wishes would be honoured if the situation arose in which you were unable to take control yourself.
How can we help?
We offer a sensitive and confidential service for drafting a Living Will. We will make sure the document fits your requirements and beliefs and we store it if necessary – free of charge. We’ll arrange correspondence with your doctor and ensure a copy of the document is lodged with your doctor or hospital medical team. We also offer a laminated carrying card displaying a ‘medical alert’ symbol. It is recognised by the medical profession and indicates to them that you have a Living Will in place.
Elderly Clients and End of Life Issues
The services we offer in respect of Elderly client and End of Life Issues is listed below:
- Registration of existing Enduring Powers of Attorney with the Office of the Public Guardian.
- Helping to create lasting Powers of Attorney (now under two headings: Financial matters and Personal & Welfare issues).
- Drafting Advance Directives or Living Wills including making sure your GP or medical team have a copy of your Living Will. We’ll also provide you with a Medical Card which alerts the medical profession to the fact that you have drafted a Living Will.
These are very sensitive subjects and require much thought and guidance before creating a legal document. If you would like more information, give us a call.