Wills, Trusts & Probate Team
The Wills and Probate Team currently provide expert legal advice on the preparation amendment and updating of Wills.
We also have sister companies with financial advisors and tax experts to provide you with a comprehensive and bespoke service for the preparation of your Will, financial advice and tax planning.
A truly holistic solution to your needs.
We undertake the full complement of work that you would expect in our Wills & Probate Team and much more.
There is a saying in common usage, which is that you get what you pay for. This is true also in the case of Wills. You can obtain a Will pack from stationers and from the classified advertisements in a newspaper or indeed you can prepare a Will yourself. There are substantial risks in doing so, and often the problems do not surface until after you pass away, in which case it is too late to change the Will or remedy any defect.
The common pitfalls are:
1. Not being aware of the formal requirements needed to make a Will legally valid
2. Failing to take account of all the money and property available which could have considerable tax implications
3. Failing to take account of the possibility that an executor, trustee, guardian or beneficiary may die before the person making the Will
4. Making changes to the Will without following the proper procedures. Simply put, if these alterations are not signed and witnessed, they are invalid.
5. Being unaware of the effect of marriage, a registered civil partnership, divorce or dissolution of a civil partnership on a Will
6. Being unaware of the rules which exist to enable dependants to claim from the estate if they believe they are not adequately provided for. These rules mean that the provisions in the Will could be overturned.
Why take the risk?
People who lack mental capacity need someone else to manage their legal, financial and health affairs. The Mental Capacity Act 2005 made provision for people to choose someone to manage not only their finances and property should they become incapable but also to make health and welfare decisions on their behalf.
They will be able to do this through a Lasting Power of Attorney (LPA). LPA's replaced Enduring Powers of Attorney (EPA's) in 2007 when the Mental Capacity Act came into force.
An LPA is a complex and serious document and should be properly and carefully prepared by a fully qualified Solicitor. At Penn Chambers, our specialist Solicitors can ensure that is done.
You may wish to draw up an LPA for yourself safe in the knowledge that you no longer need to worry about what would happen if you become a victim of an accident or serious illness. However, for many people, it is as they become older or more infirm that they seriously consider what they would wish to happen to them should their mental and physical condition deteriorate.
This could be because the first signs of dementia or another neurological disorder have been diagnosed or perhaps they have suffered a mild stroke and want to prepare for the possibility of a second, more serious attack.
If you or your loved one become incapable of making decisions for themself and have not appointed another person as their attorney, their personal affairs would become the responsibility of the Public Guardianship Office.
At Penn Chambers we can:
a) Assist in the preparation of the LPA
b) Help you decide who should be your attorney
c) Help you decide whether restrictions or conditions should be attached to your LPA
c) Act as a certificate provider, an essential part of an LPA
d) Assist in ensuring your LPA is properly registered at the Office of the Public Guardian
e) Advise attorneys on their duties under a lasting power of attorney
f) Provide an independent audit as reassurance in the event of family conflict
One day too late is forever too late - contact us now for further discreet professional advice.
Why Do You Need An Advance Directive?
When you are ill, you can usually discuss treatment options with your doctor and then jointly reach a decision about your future care. However, you may be admitted to hospital when unconscious or unable to make your own decisions about your treatment or communicate your wishes. For example, this may happen if you have a car accident or a stroke or develop dementia. To use the legal term, you would ‘lack capacity’ to make or communicate your decision(s).
In these situations, doctors must act in your best interests. The exception is if you have made an advance decision. An advance decision lets you indicate that you want to refuse certain types of medical treatment in certain situations.
It must be respected by medical professionals providing your care, whether or not they think it is in your best interests.
The term advance directive (increasingly being replaced by the term advance decision) is a statement explaining what medical treatment you would not want in the future, should you lack capacity' as defined by the Mental Capacity Act 2005. Some people refer to this as a living will. Whilst the term 'living will' helps people to understand the concept, is somewhat misleading in that, unlike a will, it does not deal with money or property. In addition, and advance directive can relate to all future treatment, not just that which may be immediately life-saving. An advance directive is legally binding in England and Wales.
Except in the case where the individual decides to refuse life-saving treatment, it does not have to be written down, although most are and a written document is less likely to be challenged. Whilst you have mental capacity, your word overrides anything contained in your advance directive.
Talking to your loved ones about end-of-life choices
To ensure that your future care wishes are understood and respected by all those who are important to you, it is imperative that you sit down and talk to your family and loved ones about your end-of-life choices. For many of us, the prospect of such a conversation can seem like a daunting task. You or your loved ones may be uncomfortable talking about serious illness or death, or it may seem “too soon” to have a conversation about end-of-life preparations. However, it is better to have the conversation when you and your loved ones are in a calm and relaxed state, rather than in the midst of a medical emergency when everyone is stressed and it is difficult to think clearly.
While you may think that your loved ones already know what you want, the truth is there is often a startling difference between what people say they want and what their family members think they want. The only way to be certain that your loved ones understand your wishes is to sit down and have the conversation.
Preparing an advance directive
We can prepare your advance directive in a systematic sensitive way that calls on our experience as fully qualified professional Solicitors.
The documentation that we prepare for submission are always discussed with you carefully and in detail so that you fully understand that implications of your advance directive.
It is never too soon to prepare a advance directive – do not assume that advance directives are for old people only. Sadly a fact of life is that we can all be struck down at any time and “there but by the grace of God, go I”
Applying for probate, through the Will, is the process of calling in all the assets, paying all the liabilities (including any Inheritance or other tax) and then distributing the remainder to those entitled.
The executors are appointed in your Will and need to act swiftly and properly to call in all the assets and hand over the correct assets to the correct beneficiaries.
We can act as your professional executors leaving your loved ones to come to terms with their loss or alternatively act side by side with family executors to ensure that your estate or the estate of a loved one is correctly and properly administered leaving you happy in the knowledge that your loved ones are cared for.
We will guide you through what can be a difficult and emotional time.
Letters of Administration
You would apply for Letters of Administration where no Will was found or if an executor was not appointed in the will.
The administrators can only act once they have been formally appointed by the court and to deal with the assets beforehand could be a serious matter.
The administrators are the people who will be responsible for distributing your assets in accordance with the Rules of Intestacy (because no Will had been prepared or found at death).
They will have to collect together all the assets of the estate, deal with all the paperwork and pay all the debts, taxes, funeral and administration costs out of money in the estate. They will then distribute the remainder in accordance with the Law.
Executors are the people who will be responsible for carrying out your wishes and for sorting out the estate. They will have to collect together all the assets of the estate, deal with all the paperwork and pay all the debts, taxes, funeral and administration costs out of money in the estate. They will need to pay out the gifts and transfer any property to beneficiaries.
The people most commonly appointed as executors are:
2. Close trustworthy friends
As with any Solicitor, we would charge you for the administration of your estate but at least that way you can be assured that the Will is administered correctly and in accordance with the law and the terms of a Will itself.