Wills and Probate

Probate

Probate refers to the legal right to deal with someone’s estate when they die.

If a deceased person left a will, an application must be made to the Probate Registry for a Grant of Probate. The executors named in the will are legally responsible for distributing the estate in accordance with this, as well as carrying out tasks like paying off the estate’s debts, arranging to pay Inheritance Tax (IHT) and preparing estate accounts. 

If the deceased did not make a will and therefore died ‘intestate’, an application must be made for a Grant of Letters of Administration. The persons who can apply for these are governed by statute but are usually the next of kin. Setfords’ wills and probate lawyers can advise you on the rules of intestacy if this is required. 

Setfords’ wills and probate solicitors can also advise executors on what to do when dealing with somebody’s estate, with our complete selection of probate services including:

• Sorting through the deceased’s papers and contacting the various creditors and debtors of the deceased.
• Obtaining valuations for the various assets of the estate.
• Preparing the IHT accounts — this needs to be done before an application for probate can be submitted.
• Drafting the oath for executors or administrators.
• Collecting the assets of the deceased once probate has been obtained.
• Distributing the estate in accordance with the will or intestacy rules.
• Preparing the estate accounts.

Wills

Wills are not just a tool for the elderly or for high net worth individuals — they are an important legal arrangement to ensure that, whatever your circumstances, you have the peace of mind of knowing your affairs are in order following your death. Benefits of having a will include:

• If you die without a will, it could result in your estate going to the Treasury rather than your loved ones or desired beneficiaries.
• Unmarried partners cannot inherit from each other unless there is a will, so the death of one partner may create serious financial problems for the remaining partner and any children. 
• If you have minor children, you will need to make a will so that arrangements for the children can be made if either one or both parents die. 
• It may be possible to reduce the amount of tax payable on the inheritance if advice is taken in advance and a will is made.
• You can set out your wishes for your remains, be this cremation, burial or medical research.
• You can make sure that family businesses stay in the family and pass to those of your choosing. Not only does this offer peace of mind, but it is extremely tax efficient.

Putting a valid will in place that sets out your intended wishes is a complex process and mistakes, which are easy to make, can render the will invalid. This is why you should rely on dedicated lawyers for wills like the ones here at Setfords. By considering your personal circumstances we are able to assist you in deciding:

• Who you would like to manage your affairs following your death.
• Who you would like to benefit from your estate and, if children will be benefiting, when you wish them to receive their inheritance.
• Who should look after your children if you should die whilst they are minors, and how you can make your wishes for their upbringing known.
• If there may be any potential claims on your estate from family members that you have not included and how to minimise the risk of these claims succeeding.
• Whether or not your estate may be liable for IHT and how this can be met and any liability minimised.
• What sort of will best suits your needs.

IHT and Trusts

IHT and trusts refers to inheritance tax and legal trusts. 

IHT

IHT is charged at 40% on all of a person’s worldwide assets over £325,000 (The Nil Rate Band). It accounts for about 0.8% of government income and affects around one in six people’s estates.

Trusts

A trust is simply a legal arrangement under which ‘trustees’ hold assets for the benefit of one or more ‘beneficiaries’. They are used to minimise the tax liability of a person’s estate and to preserve capital.

Setfords’ estate planning lawyers can help minimise an estate’s liability to IHT in multiple ways, from shifting the ownership of assets between spouses, to putting assets into a trust so that they are not part of your estate on your death.

General Power of Attorney

A General Power of Attorney (GPA) is a legal document giving someone else (an attorney) the authority to manage your (the donor’s) affairs for a set period of time. The most common reason you need one is because you go abroad. 

Case study

Mr. N worked abroad and owned a property in England which he instructed Setfords to sell. By granting a GPA to his sister, he was able to have her sign the required documentation on his behalf, thereby avoiding untimely delays due to overseas post.

Lasting Power of Attorney

An LPA is a legal document under which you (the ‘donor’) can appoint one or more persons (‘attorneys’) to act on your behalf. Unlike a normal Power of Attorney, which will cease to have effect when the donor loses capacity, an LPA will continue to be effective in such a situation. There are two main types:

Personal Welfare LPA 

This allows attorneys to make decisions on a donor’s health and welfare, from giving or refusing consent for medical treatment to deciding where the donor will live and with whom.

Property & Affairs LPA

This replaces the old Enduring Power of Attorney (EPA), and, like its predecessor, it allows the attorney to make decisions relating to the donor’s property and affairs. These include things like buying or selling property, managing investments and running a business.

For both types of LPA, Setfords’ wills and probate lawyers can help draft the necessary documents, as well as act as attorneys if the donor wishes, be certificate providers, and advise an attorney on their duties, obligations and powers.

Enduring Power of Attorney

An Enduring Power of Attorney (EPA) is a document that appoints somebody (an estate planning attorney/probate attorney) to help manage your property, money, and financial affairs. 

From 1st October 2007, however, EPAs have been replaced by the two forms of Lasting Power of Attorney. That said, an EPA signed before the 1st October 2007 that hasn’t been registered can still be enforced. Setfords’ wills and probate solicitors can advise you further, if required.

Change of Name

Although there is no legal procedure for changing your name, many authorities and bodies require some evidence that you have done so.

In the case of a marriage or civil partnership, the marriage certificate can serve this purpose. Equally, when getting divorced, many women choose to revert to their maiden name and the Decree Nisi or Decree Absolute acts as proof of the change.

Aside from these, there are several methods of evidencing your chosen change of name that Setfords’ private client lawyers can help with:

• A letter from a responsible person, such as a GP, solicitor, minister, priest or MP.
• A public announcement, like by placing an advert in a local or national newspaper.
• A statutory declaration, which will need to be witnessed by an independent solicitor.
• Via deed poll, a legal document that proves a change of name.

When it comes to changing a child’s name, the consent of all parties with parental responsibility is required.