Estate Planning

Writing a Will is one of the most important things you can do to protect your family. In this blog, our Will solicitors explain why you should make a Will and the things to consider. Contact Evolve Family Law for advice on writing a Will. Why write a Will? You should make a Will because a Will can: Set out how you want things to be dealt with after you have passed away. Provide for your family and loved ones. Protect your family. Help reduce the inheritance tax payable on your estate. Through estate planning, you can reduce the inheritance tax payable on your estate. If you leave all your estate to your spouse, civil partner, or to charity, there is usually no tax to pay. There are other ways to reduce the inheritance tax payable, such as placing all or part of the estate in trust or making lifetime gifts.   What is a Will? A Will outlines how you want your estate distributed after your death. As well as specifying who will inherit and what they will inherit, your Will can also: Appoint executors to administer your estate. Appoint a testamentary guardian. Appoint substitute beneficiaries in case the intended beneficiaries die before you. Create a trust. Explain why your estate, or part of it, is not being left to people who might have an estate claim. Offer comfort to loved ones, as they will know you took time and trouble to protect them with a Will.   Wills and protection Not having a Will makes an already devastating time for your family even more difficult. Having a Will offers protection because: Those who would not receive a share of an estate under intestacy rules can be left the estate or legacies, such as unmarried partners or stepchildren. If there are children from a previous marriage, the Will can leave their estate between their spouse and their children as the Will maker thinks is appropriate. If the deceased is a business owner, the Will, a shareholder agreement, or cross-option agreement can provide business continuity until the business is sold or transferred to the chosen beneficiary or other business shareholders as part of the cross-option agreement. Wills and protecting children As well as providing a legacy for a child, a Will can protect a child by: Appointing trustees in the Will who deal with the legacy until the child is of an age to inherit. Providing a specified age for inheritance, such as at age 18, 21, or a later age. Giving the trustees the power to advance capital or income to the child before the age of inheritance. Placing money in a discretionary trust so the child is protected from potential future claims, for example, by a step-parent. Appointing a testamentary guardian. A testamentary guardian can be appointed in a Will for any child under the age of 18 at the time of their parent’s death. Although family members can dispute who cares for a child after a parent’s death, the appointment of a testamentary guardian is compelling evidence of who the Will-maker thought would be the best person to bring up their child.   What is Intestacy? If a person dies without making a Will, then they die intestate. Problems with intestacy include: The deceased’s estate is distributed in accordance with intestacy rules. The intestacy rules are inflexible and dictate who inherits the estate. The intestacy rules mean relatives inherit according to a strict order, set out in legislation. The beneficiaries of the estate under intestacy rules will be the closest biological relatives, but not necessarily those closest to the deceased or those in the greatest financial need. The intestacy rules may not reflect how the deceased would have left their estate if they had made a Will.   The effect of intestacy The unintended effects of intestacy include: An unmarried partner or stepchildren will not inherit under the intestacy rules. An estranged husband or wife may inherit. Family members may bring claims against the estate because they believe the intestacy rules do not make reasonable provision for them. The estate may pay more in inheritance tax because estate planning did not take place. You might also be interested in [related_posts]   Frequently Asked Questions on Wills  Do I need a Will if I have a Lasting Power of Attorney? A Lasting Power of Attorney provides the authority for your attorneys to handle your financial or health and welfare affairs during your lifetime. A health and welfare Lasting Power of Attorney only becomes operative if you lose capacity to make your own decisions, and both types of Power of Attorney end on death. You therefore need a Power of Attorney and a Will. Do I need a Will if I want to leave everything to my wife? It's still a good idea to make a Will even if you want to leave everything to your husband or wife. Depending on your family situation and the size of your estate, your spouse may not receive the entire estate under intestacy rules. In addition, a Will allows you to appoint executors and trustees, estate plan, provide substitute gift clauses if your spouse predeceases you (so you do not need to change the Will) and create a trust in your Will. Do I need a new Will if I divorce?   If you have a Will and get divorced, any bequests to your ex-spouse or their appointment as your executor are cancelled. However, it's best to get a new Will when you divorce so you can discuss what you would now like to happen to your estate with your Will solicitor and obtain advice on how to minimise the risk of a former spouse claiming a share of your estate if you have not obtained a clean break financial court order. How much does a Will cost? Evolve publishes a price guide outlining the cost of a Will. If you have an existing Will, a Will solicitor can check and review your existing Will for you. It is sensible to get your Will checked because family and personal circumstances change, or your Will may no longer be as tax-efficient as it could be. If you have complex financial and business affairs and need in-depth advice on trusts, estate planning, tax, or domicile, our Will lawyers can provide a bespoke quote. Contact Evolve Family Law for advice on writing your Will.  

If you are considering giving your child money to help them purchase their first home or making a gift to reduce the size of your estate, you and your beneficiary need to understand the tax rules for lifetime gifts. Contact Evolve Family Law for expert private client and Will advice.   What is a lifetime gift in the UK? A lifetime gift is a gift made without conditions by a donor during their lifetime to a beneficiary. It is distinguished from a gift in a Will as a Will legacy only takes effect after the Will maker or testator’s death. Limits on lifetime gifts in the UK There are no limits on the amount of money you can give away, and there are no restrictions on who you can give your cash or assets to. However, depending on the size of the gift, there may be potential tax implications. Lifetime gifts become fully exempt from inheritance tax if the donor survives seven years after making the gift. However, some exemptions to the seven-year rule enable a donor to leave a gift without the risk that it will attract IHT liability if the donor passes away within seven years of making the gift. Tax and UK lifetime gifts Although the definition of a lifetime gift in the UK is broad, the inheritance tax rules on lifetime gifting are complex. Many feared tax rule changes in the 2025 Budget and delayed estate planning. However, tax rule changes were not announced, leading to an increase in inquiries about estate planning. Lifetime gifting UK and the annual £3,000 exemption Current inheritance tax rules allow a donor to give £3,000 a year in gifts exempt from inheritance tax. The gifts can be made to anyone; the donor does not need to be related to the beneficiary. Many people want to give their children or other family members more than £3,000. For example, for a deposit on a house purchase or to help pay for home renovations. Gifts of over £3,000 may fall within the seven-year inheritance tax rule unless the gift is within one of the exemptions. Lifetime gifting UK and the seven-year rule If a donor wants to give more than £3,000 away in a year, they can do so. However, unless the gift falls within one of HMRC's recognised exceptions, it may be subject to inheritance tax if the donor dies within seven years of making the gift. Whether inheritance tax (IHT) will be payable on the gift depends on the size of the donor’s estate, the availability of the inheritance tax nil rate band for lifetime gifts and the residence nil rate band. The IHT amount on the gift is tapered based on how long the donor survives after making the gift, with no IHT payable if the donor survives for seven years. The seven-year rule should not deter donors from making lifetime gifts or beneficiaries from accepting them, but specialist estate planning legal advice is needed so the donor and beneficiary understand the taper relief IHT rules and the family law implications of the gift. For example, a family may want to combine estate planning and family law advice to protect the gift by signing a relationship agreement. Lifetime gifting and the exemptions to the seven-year rule There are six main exemptions to the seven-year IHT rule. These exemptions allow a donor to give away over £3,000 per year, in the knowledge that IHT should not be payable on their gift in the future. The exemptions are: Small gift exemption. Money paid in maintenance. Marriage and civil partnership gifts. Gifts to a husband, wife or civil partner. Gifts out of normal income. Charitable or political gifts.   You might also be interested in [related_posts]   Lifetime gifting UK and the small gifts exemption Donors can give gifts of up to £250 to as many people as they like. However, the small gift exemption cannot be combined with a £3,000 gift to one individual in the same tax year. Lifetime gifting UK and family maintenance The family maintenance exemption allows donors to make gifts to: A spouse or civil partner’s maintenance, or Children under the age of 18 for maintenance, training or education. If the gifts exceed the £3,000 cap, the gifts remain exempt from the seven-year rule if they fall within the definition of family maintenance. Lifetime gifting UK, marriage, and civil partnership Under current IHT rules, some relatives can make lifetime gifts in contemplation of a relative or friend's marriage or civil partnership. The amount depends on the relationship. The rules are: Parents can give up to £5,000. Grandparents can give up to £2,500. Anyone else can give up to £1,000. Lifetime gifting to a spouse or civil partner Gifts to a spouse or civil partner are usually free of inheritance tax. The relationship rule does not apply if the donor is in an unmarried or cohabiting relationship with the beneficiary. If one partner is UK domiciled and the other is not, then complicated inheritance tax rules and exemptions apply. Domicile is a tricky legal concept, so if there are any questions about your domicile or that of your beneficiary, it's best to seek professional advice. Lifetime gifting UK out of normal expenditure The normal expenditure exemption allows a donor to make regular gifts from their surplus income. Gifts from surplus income can exceed £3,000 per year and are inheritance tax-free on death, even if the donor dies within seven years of transferring the gift. Parents and grandparents can use this tax-efficient method to pay or contribute toward private school fees, or to provide regular financial support to family members. Estate planning solicitors recommend that professional advice be taken on the definition of normal expenditure and income to avoid future difficulties with proving that the gifts were made from income and as part of the donor’s normal expenditure. Income can include various income sources. However, income does not include capital investments transferred into a current bank account or the sale proceeds of property. Lifetime gifting, charity and other exceptions Another major exception to lifetime gifting and potential payment of IHT is lifetime gifts made to: Charities. Gifts to the nation for national purposes. Qualifying political parties. Lifetime gifting UK legal advice Lifetime gifting is a lovely thing to do to help friends and family, but it should be carried out after taking estate planning advice so you and your beneficiaries understand the potential inheritance tax implications. The estate planning solicitors at Evolve Family Law provide lifetime gifting advice and can help you make or update your Will or Lasting Power of Attorney. Contact Evolve Family Law for expert private client and Will advice.

The short answer is yes; you can do probate without a solicitor. However, if you are an executor, you need to know what administering an estate involves to decide if you want to instruct a probate solicitor to administer the estate under your instructions. If you have questions about probate or about appointing a probate lawyer, our team of specialist private client solicitors are here to help. For probate advice call our specialist probate lawyers or complete our online enquiry form.   Applying for probate without a solicitor Any executor can apply for probate without instructing a solicitor. Sometimes, when the executor and beneficiary are the same person and the estate is small, the risks of acting as executor without a probate lawyer are low. In other situations, the risks and personal liability could be significant. If you are named as a joint executor in a Will, you can decide jointly with the other executors if you want to appoint a probate solicitor.  The fact that a solicitor was not appointed as an executor in the Will does not prevent you from instructing a lawyer. If you decide to apply for probate without a solicitor, you need to consider: If you have the time to act as an executor. Whether acting as executor will cause family friction. If you are prepared to accept the personal liabilities that come with an executor appointment. If you can cope with the additional stress at a time of bereavement. If you are applying for probate without a solicitor, there is a potential for an increase in time to administer the estate and distribute it to the beneficiaries. Time, worry and liability may all be non-issues for you if you are the sole executor and beneficiary of a small estate. We recommend that you speak to probate lawyers to get a quote so you understand what a solicitor is likely to charge, so that you can make an informed decision. At Evolve Family Law, we provide transparent information about our costs. Some information can be found here on the typical costs of probate services. For more information on costs, give us a call.   Who pays for a probate solicitor? The estate pays for the costs of instructing a probate solicitor. The costs are not the liability of the executor/s. The lawyer’s fees are discharged along with other debts, such as utility bills on the deceased’s home and funeral expenses. The estate pays the costs of the probate lawyer even though an executor, rather than a lawyer, was named in the Will. Most Will makers understand that their executors may elect to instruct a lawyer because their Will solicitor will run through the options with them.   The role of an executor An executor’s job is to administer the estate of the deceased. That involves: Ascertaining the deceased’s assets and the value of the estate. Checking to see if tax will be payable. Working out if there are any debts. Applying for probate. Completing a tax return and paying any tax. Selling or transferring assets so the terms of the Will can be implemented. Paying the debts. Dealing with any challenges to the Will, such as on the grounds of validity or because the Will did not make reasonable financial provision for a dependant partner, second spouse or other claimant. Sorting out any specific bequests, such as jewellery. Paying any legacies to beneficiaries. Creating estate accounts. Finalising the estate accounts by paying the remaining estate monies to the residual beneficiaries.   The 12-point list is long and can be daunting to some lay executors, especially as the law says that an executor is personally liable for any mistakes made, even if they are genuine errors. For example: Undervaluing the estate for tax purposes. Paying the wrong amount to a beneficiary. Not paying a debt that was due before distributing the money from the estate. Paying a residuary beneficiary too much from the estate. Not realising that some assets fall within the estate, such as jointly owned property owned by the deceased as a tenant in common with the co-owner. Facing complaints by a residuary beneficiary, such as a charity, that the money raised should have been more, as the sale of property or other assets was not handled correctly. Not understanding what to do when faced with someone challenging the deceased’s Will because they say the Will was not drawn up correctly, was signed under duress, was signed when the deceased did not have the capacity to sign a Will, or because the Will did not make adequate provision for them. Not paying HMRC the correct amount of tax. Some mistakes are easy to make. For example, not realising that inheritance tax will be payable or assuming that a beneficiary is liable to pay the tax. The issue for executors is that they can be held liable for the error. This can be a significant problem, especially where the executor is not the sole beneficiary of the estate.   The role of a probate lawyer If an executor instructs a probate solicitor, the lawyer sorts all the estate administration out for them or can agree to do the more limited task of obtaining the grant of probate and then leaving the executor/s to finalise the estate distribution. Although the executor appoints a lawyer, the executor remains in post. The executor’s job is to instruct the lawyer and authorise the actions they take. For example, the executor will formally approve the estate accounts prepared by the solicitor.  In the unlikely event that an experienced probate firm makes a mistake during the probate process, the executor has redress, as all qualified and regulated probate solicitors must adhere to standards set by their professional regulatory bodies and have professional indemnity insurance.   You might also be interested in [related_posts]   Taking probate legal advice The best advice for anyone thinking about dealing with probate without legal help from a specialist probate solicitor is to get advice on whether it is sensible to try. A good probate solicitor will tell you if probate is required and, if it is, whether there are warning signs to suggest that you will need legal assistance. Some key flags for taking probate legal advice include: The estate is likely to be liable to pay inheritance tax. The deceased owned their own business, either as a sole trader, partner in a firm or as a company director. The deceased has left all or part of their estate to charity. The estate has complicated assets in it, such as a buy-to-let property portfolio or overseas property. The deceased has left their estate to minor children, and there are trusts involved. The deceased had a complicated personal life, so there is an increased risk of an inheritance dispute or estate challenge. For example, the deceased left a separated or former spouse, unmarried partner, or children from different relationships, and there is a risk that the Will may be challenged on the basis that it does not contain adequate financial provision. The deceased had a complicated financial life with lots of investments and debts that will need to be sorted out before the estate is distributed. You will find the process of acting as an executor and handling the probate yourself too distressing during a time of bereavement. There is a risk that you will fall out with sibling executors or fall out with members of the family who are beneficiaries because they have unrealistic expectations of timescales and what a lay executor can do.   Talk to Evolve Family Law If you need help in deciding whether to handle a probate, give us a call to discuss the estate and your options. If you choose to ask us to handle the estate, we can take care of it entirely, relieving you of the stress whilst keeping you informed.   For probate advice call our specialist probate lawyers or complete our online enquiry form.

If you have inherited a legacy, whether it is a part share in a house or a cash gift, you are reliant on the executors of the estate to sort out probate, gather in the assets, and then distribute the assets in accordance with the deceased’s Will.   For expert Will writing and probate advice, call our team of specialist Will and probate lawyers or complete our online enquiry form.   The executors of a Will The executors of a Will are people chosen by the deceased to handle their Will. The executors could be family members, friends, or professionals, such as a solicitor, accountant, or the bank.   Appointing a probate solicitor   If the executors are friends or family of the deceased, then the executors can hand over a lot of the responsibility for sorting out the deceased’s estate by instructing a probate solicitor to administer the probate, the sale of assets, and the distribution of legacies to beneficiaries. Most lay people take this option as they are honouring the appointment made in the deceased’s Will, but not leaving themselves open to criticisms about delays in payment of legacies or problems with securing probate.   Problems with executors Here are some examples of problems that beneficiaries can experience with the probate process: A friend or family member appointed as an executor may not get on with the other executors or with the beneficiaries. This can lead to a lack of trust and frustration due to delays. The executor may say that they want to sort out the probate themselves without instructing a probate solicitor, leaving the beneficiaries fearing there will be a delay in sorting out the estate and the payment of legacies. The deceased may have appointed a bank as his or her executor not appreciating that the bank’s charges for handling the estate may be a lot more than a local Cheshire probate solicitor. The additional administrative charges might be an issue for the beneficiaries, as the costs of sorting out probate and administering the estate will be deducted from the estate before the remaining estate, after payment of any legacies, is divided between the residuary beneficiaries.   How do you remove an executor from a Will? If you think that an executor is not up to the job, or think that they are too slow, or maybe acting improperly, then a court application can be made. The court can make a wide range of orders, including an order to remove an executor. Cheshire probate solicitors usually recommend that you try to resolve the difficulties with an executor first before starting court proceedings. Sadly, that isn’t always possible. As a last resort, court proceedings can be started to secure an order to remove an executor.   You might also be interested in [related_posts]   Avoiding executor problems A specialist Will solicitor will discuss the choice of executors when preparing a Will because it is important that the executors are not too elderly or frail to be up to the task and will be able to work with one another. It is sometimes thought that it does not really matter who the executor is if the executors are going to appoint a solicitor to sort out the estate for them. However, it is still essential to choose your executors with care and to make sure that they are willing to undertake the task for you.   For expert Will writing and probate advice, call our team of specialist Will and probate lawyers or complete our online enquiry form.

Whether your estate will be liable to pay inheritance tax and the extent of the bill depend on a few factors. In this article, our estate planning solicitors outline the current inheritance tax rules.   Call Evolve Family Law for specialist estate planning and Will advice or complete our online enquiry form.   What is inheritance tax, and how much is inheritance tax? Inheritance tax is paid upon a UK-domiciled person’s death if their estate exceeds their IHT threshold (known as the nil rate band). Over the last 15 years, more estates have been left footing inheritance tax (IHT) bills on the death of a loved one because: Property values have risen, and Tax thresholds and exemptions have not increased with inflation. How much inheritance tax is payable?  If a deceased’s estate amounts to more than the nil rate band, then inheritance tax is payable at 40% by the estate. The nil rate band The tax-free inheritance tax allowance, also known as the nil rate band, is £325,000. The allowance has not changed since 2010, but it could be increased or reduced in future budgets. The inheritance tax rate The IHT rate is 40% of anything in your estate over the £325,000 threshold. However, special rules apply if: You are passing on a family home, or Some or all your estate falls within an IHT exception. Passing on a home The value of a family home is included in the value of your estate, but you will avoid paying IHT at 40% on the value of your family home if you leave your house to your husband, wife or civil partner. IHT rules also allow you to pass on a home to a family member with an extra £175,000 of tax-free threshold, so the total nil rate band is £500,000. The rules say the family home must be left to either: Your children – this includes adopted, foster and stepchildren, or Your grandchildren. To qualify for the additional nil rate band, the estate must be worth under £2 million. Exceptions to the payment of inheritance tax There are several ways for individuals to reduce the inheritance tax burden payable by their estate, such as: Giving money away during life, known as lifetime gifting. Putting money into a trust. Leaving money to charity. Business or agricultural reliefs. Leaving the estate to a spouse or civil partner – no tax is payable on the death of the first spouse, but tax will be payable on the death of the second spouse. There are complicated rules relating to inheritance tax planning, such as rules on taper relief. The rules are different if the deceased was not domiciled in the UK at the time of death. These tricky rules mean that it is always sensible to take professional legal advice on your Will and effective estate planning options. Lifetime gifting If you give away an asset, including a family home, there is usually no IHT to pay if you survive for seven years after making the gift. If you die within seven years of making the gift, then the amount payable in inheritance tax is tapered. If you continue to have an interest in the property that you have given away, HMRC may consider this a gift with reservation. HMRC could say the asset remains part of your estate when calculating liability for IHT. An example of a gift with a reservation is the transfer of the family home to your children during your lifetime, and you live in the property without paying your children market rent. If you unreservedly give property away but do not survive seven years from the date of the gift, then the seven-year tapering IHT rules will apply if the total value of gifts made in the 7 years before you die is over the £325,000 tax-free threshold. Taper relief rules The taper relief rules for gifts and payment of IHT are: Years between the date of the gift and death  Inheritance tax rate on the gift 3 to 4 years 32% 4 to 5 years 24% 5 to 6 years 16% 6 to 7 years 8% 7 or more 0%   You might also be interested in [related_posts]   Small gifts and gifts out of income Under current inheritance tax rules, you can also give away some money or possessions free of inheritance tax each year. There are four main exemptions: Annual exemption of £3,000. Small gift allowance. Gifts for weddings and civil partnerships. Regular gifts out of income. Annual exemption of £3,000 The annual exemption allows you to give away a total of £3,000 worth of money or gifts each tax year without the money or the value of the gift being added to the value of your estate. The gift of £3,000 can be made to one person or split between several people. Under the current tax rules, you can carry unused annual exemption forward to the next tax year, but you can only do this for one tax year. The small gift allowance The small gift allowance enables you to make gifts of up to £250 per person. There is no limit on the number of people you can give the small gift allowance to. However, you can't use the small gift allowance if you have already gifted the same person money under a different allowance, such as a wedding gift. Gifts for weddings or civil partnerships Gifts for weddings or civil partnerships allow you to give a tax-free gift to someone who is getting married or entering a civil partnership. The amount you can give depends on your relationship to the done. The current allowances are: £5,000 to a child. £2,500 to a grandchild or great-grandchild. £1,000 to any other person. Regular payments out of income If you make regular payments out of your income to a third party, then these are not classed as part of your estate and are not liable to IHT even if you die within seven years of making the gift, provided: You make the payments from your regular monthly income rather than savings, and You can afford the payments after meeting your usual living costs. An example of a regular payment would be an allowance paid to a child or financial support for an elderly relative. Leaving your estate to your spouse If you leave your estate to your spouse or civil partner, then they will not pay inheritance tax on the bequest – even if the gift is more than the inheritance tax nil band rate. However, this does not mean that no IHT is paid. On the death of the second spouse or civil partner, the estate will be liable to inheritance tax unless the second spouse can estate plan. Many families are blended with stepchildren and children from previous relationships. A Will maker (testator) may therefore not want to leave their entire estate to their spouse or civil partner. If an estate is left to a spouse without considering the needs of a child from a previous relationship, this may increase the likelihood of the Will being challenged. Whatever your family dynamics, it is best to take specialist estate planning legal advice. A Will solicitor can create a Will that provides inheritance tax efficiency and reduces the risk of the Will being challenged by a family member disappointed by the size of their inheritance. Wills and leaving your estate to your spouse Some people think they do not need to make a Will as their estate will automatically pass to their spouse under intestacy rules. This may not be the case depending on the size of the estate and how the assets are owned. There are other key reasons why you should make a Will even if you want to leave all your estate to your husband or wife: In your Will, you can appoint an executor to handle your estate. Your Will can say who your estate should go to in case your spouse predeceases you. A Will solicitor can ensure that assets will pass under your Will. People often assume that their assets will pass to their loved ones, but that is not always the case. For example, if you own property with a parent or sibling as joint tenants, then your share in the property will pass to your co-owners rather than to your husband or wife. A Will solicitor can check property ownership and, if necessary, sever the joint tenancy and convert your property ownership to tenancy in common so your share of the property passes under your Will. Estate planning Without estate planning advice, your Will may not be tax-efficient or may be vulnerable to challenge by an unhappy relative, such as a former spouse or a child who hoped to receive a share of your estate rather than your assets being left to a new husband, wife or civil partner. Our specialist Will lawyers can help you ensure that your Will limits your estate’s liability to pay IHT and protects your estate from challenges from potential claimants and challengers.   Call Evolve Family Law for specialist estate planning and Will advice or complete our online enquiry form.

When private client solicitors talk legal jargon, it can be hard to take in what they are saying. It is tempting to just let their legalese wash over you, but if you are making a new Will with a Will solicitor or debating whether to sign a Power of Attorney, you need to understand what your lawyer is saying to you. In this blog, Will solicitor and legalese interpreter Chris Strogen explains the difference between the Executor of a Will and an Attorney in a Lasting Power of Attorney. For expert Will and Lasting Power of Attorney advice call our team or complete our online enquiry form. Will or Power of Attorney Do you need a Will or a Lasting Power of Attorney? Our private client solicitors say that, ideally, you need both as the documents are different to one another and serve different purposes. Many people don’t realise that they, and their relatives, need a Will and a Power of Attorney. They think that as they are an Attorney for a parent or grandparent, they don’t need to worry that their relative hasn’t made a Will. That’s not correct. The relative needs a Will and Power of Attorney. Here is how Wills and Powers of Attorney work separately: A Lasting Power of Attorney appoints Attorneys to act for you while you are alive. There are two types of Power of Attorney. The Power of Attorney ends on the death of the person who signed the document granting Power of Attorney A Will sets out how you want your estate administered after your death and says who will receive your estate. An Executor is appointed in your Will to administer the estate and arrange the distribution of money to your beneficiaries in accordance with your Will. A Will has no force or legal effect until the testator or Will maker has died. Therefore, an Executor of a Will has no rights to sort out the Will maker’s financial affairs, even if the Will maker has lost the capacity to make their own financial decisions A Will isn’t an alternative to a Lasting Power of Attorney and nor is a Power of Attorney akin to a Will. Both are necessary tools for an organised life. What happens if there is no Power of Attorney? Firstly, there are two types of Lasting Power of Attorney and they do different tasks. You can choose whether you want one or both types: Health & Welfare Lasting Power of Attorney – this type of Lasting Power of Attorney allows nominated family or friends (called Attorneys) to make decisions about the donor’s medical treatment and care needs if the donor cannot make decisions as they don’t have the capacity to do so Property and Financial Affairs Power of Attorney – this type of Lasting Power of Attorney allows Attorneys to manage the financial affairs of the person signing the LPA A Health & Welfare Lasting Power of Attorney doesn’t come into effect unless the person who signed it has lost the capacity to make their own health or welfare decisions. A Property and Financial Affairs Power of Attorney can come into effect when signed if that is what is required. For example, if a donor wants a relative to handle their financial affairs or a property sale whilst they are living overseas. If a person doesn’t have a Power of Attorney and a doctor assesses them as having lost capacity to make their own decisions then the fact that they are married or have a Will with a named Executor doesn’t give the spouse or the Executor the legal right to act on the person’s behalf even though they have their best interests at heart. Instead, there is a legal limbo situation until an application is made to the Court of Protection for a Deputy to be appointed. The Deputy may be the person’s spouse or Executor in the Will, but most financial institutions won't act unless there is either a registered Lasting Power of Attorney or order from the Court of Protection. Most private client solicitors recommend signing a Lasting Power of Attorney to cover for the hopefully unlikely event of temporarily or permanently losing capacity in an accident or through ill health, such as a stroke or dementia. What happens if you don’t have a Will? If a person dies without a valid Will, it is called dying intestate. The law says that any money and property pass under intestacy rules. The fact that the person had signed a Lasting Power of Attorney giving financial authority to an Attorney is irrelevant as the Power of Attorney ceases to have effect on death. The intestacy rules are very rigid. They say how much of the estate goes to a surviving husband or wife or more distant relatives if there is no spouse or children. This can produce very unfair outcomes when cohabiting partners or stepchildren won't be entitled to receive anything under the intestacy rules and an estranged cousin will inherit the entire estate unless the intestacy rules are challenged by a court application. [related_posts] Should the Attorney and Executor be the same person? A person can be an Attorney and an Executor of a Will but there is no requirement to appoint the same person. Most people prefer to appoint two Attorneys in a Lasting Power of Attorney so there is consultation before important decisions are taken. Most Wills include two Executors as that is necessary if the deceased owned property or if there is a trust because there are minor children. Choosing an Attorney and executor is very much a personal choice. Your choice may depend on the type of Lasting Power of Attorney you are signing. For example, your husband or wife is likely to be your preferred choice of Attorney for a Health & Welfare Lasting Power of Attorney but you may want to appoint your Will solicitor as the Executor of your Will as the solicitor will be handling the administration of your estate and ensuring that assets are sold and money distributed to your loved ones as quickly as possible. Whoever you choose to be your Attorney or Executor it is important to check with them first to ensure they are willing to act as an Attorney or Executor or both. That’s because both roles come with legal responsibilities that won't suit everyone. Making a Power of Attorney or Will Whether you are signing a Power of Attorney or a Will, both types of documents are all about forward thinking and planning. Our experienced Will and Lasting Power of Attorney solicitors can advise you on your choices to help you finalise a Power of Attorney and/or Will that reflects your wishes. For expert Will and Lasting Power of Attorney advice call our team or complete our online enquiry form.

If you or your husband or wife has a Will written before your marriage then what is its status after your marriage or civil partnership? It is best not to make assumptions and think that the Will either remains valid or that it is scrapped and invalid. Wills are governed by private client law and it is easy to get caught out. If you are the one who is left as a widow or widower assumptions can have devastating financial consequences for you. If you are a child from a previous marriage and your parent has passed away there can be equally devastating consequences from a parent not realising that they needed to make a new Will to protect you. In this blog, our Will solicitors look at what happens if you write a Will before your marriage or civil partnership. For expert Will and estate planning advice call our team or complete our online enquiry form. Wills written before marriage A Will can be written before marriage and be valid after the wedding BUT the Will must say it is being made in contemplation of marriage. When you make a Will in contemplation of marriage you include a clause saying the Will has been made in the full knowledge of your pending marriage to a specified person and that your marriage should not make the Will invalid. A Will made in contemplation of marriage is allowed under Section 18 of the Wills Act 1837. Since 2005 this also includes civil partnerships. Our private client solicitors recommend that you take specialist advice if you are thinking of making a Will in contemplation of marriage because if you get the wording wrong your Will could be invalidated by your subsequent marriage or civil partnership. The 1837 Wills Act says that you must: Name the person you are marrying – you can't say when signing a Will at age 18 that if you get married at some point in the future your brother won't get your estate and instead most of your estate will go to any future husband or wife The marriage or civil partnership must take place within a reasonable period. That’s normally at most a year. A long engagement or an engagement without a set ceremony date won't work for you If you made a Will in contemplation of your marriage but you are now not sure about its validity our Will solicitors can advise you on whether you need a new Will. For an appointment call our team or complete our online enquiry form. [related_posts] Wills invalid after marriage If you signed a Will before your marriage or civil partnership and it wasn’t said to be made in contemplation of your marriage or if it didn’t comply with the 1837 Act then the Will is invalid. That’s the case even if your Will left your estate to your fiancé. If there is no Will (because your old Will was revoked by your marriage or civil partnership) then your estate will be distributed under intestacy rules. This may mean that your husband or wife will get a lot less than you expected because of the way that intestacy rules work. It will also mean that any gifts to family, friends or charity won't be valid as your earlier Will was revoked by your marriage. Instead, other family members may end up sharing your estate with your husband or wife. That’s the case whether you were married for ten months or ten years at the date of your death. As well as your Will being invalid after marriage any careful tax and estate planning may be worthless. That means your estate could end up paying more in inheritance tax. Why the intestacy rules may not work for your family If you are getting married you need to consider: Signing a prenuptial agreement Sorting out insurance and pension nominations Writing a new Will in contemplation of your marriage or civil partnership or making an appointment to see a Will solicitor after your wedding If you die before your spouse or civil partner and there is no valid Will because your marriage revoked your earlier Will, the intestacy rules will apply. Under the current regime, your spouse or civil partner will either get all your estate or part of it. The rules say: If the deceased was married or in a civil partnership and has no children, all their estate goes to their spouse or civil partner If the deceased was married or in a civil relationship and has children, the first £322,000 of their estate and any personal possessions goes to their spouse or civil partner. Anything over £322,000 is then divided. The spouse or civil partner receives 50% of the balance over £322,000. The deceased’s children are entitled to the other 50% divided equally between them. This rule applies even if the deceased is estranged from adult children or an adult child is wealthy and has no need for an inheritance. However, if the deceased had step-children then under the law they don’t qualify as children so won't get anything under the intestacy rules Even if you think that the intestacy rules will result in fair estate provision you should still make a Will or a new Will after your marriage or civil partnership because: The intestacy rules could change Your assets could increase in value. For example, property prices or your receiving an inheritance You may want to cover what happens if you have children in the future. For example, leaving money in trust for them or appointing a testamentary guardian All your assets may not form part of your estate and be left under the intestacy rules. For example, if you bought a property jointly with a sibling as joint tenants then your share of the property will pass under the right of survivorship to your sibling and not under the intestacy rules You want to reduce the risk of your estate being the subject of an inheritance challenge as your spouse or child is unhappy with what they are receiving under the intestacy rules or a family member says the intestacy rules don’t make reasonable financial provision for them With the help of a specialist Will solicitor making a Will in contemplation of your marriage or after your marriage or civil partnership is straightforward - even where there are complex family dynamics or significant assets. Our private client advisors can focus on your goals and draw up a Will that does what you need it to do by reflecting your wishes and protecting all your loved ones. For expert Will and estate planning advice call our team or complete our online enquiry form.

Most homeowners are concerned about the cost of aging and funding later life care. If you have worked hard to buy a property the likelihood is that you want to be able to leave your property to your children rather than see your hard-earned equity disappear in paying care home fees. Our private client solicitors provide estate planning advice. We can advise you on your Will and answer your questions on estate planning. For help with your Will and estate planning call us or complete our online form. Trusts and care home fees  Our private client solicitors come across situations where parents have spent thousands in legal fees to transfer their family home into a trust in the belief that the money spent on fees represented good value for money because the trust would protect the family home from being sold to pay care home fees and ultimately save their family hundreds of thousands of pounds. When our Will solicitors come across these situations it is frustrating. We can often spot that the money spent on putting a home into a trust was wasted and would have been better spent on a luxury cruise for the homeowners or on helping grandchildren with a deposit for their first home. If something seems to be too good to be true it often is. You should ask yourself: If the trust scheme is so good why isn’t everyone doing it? If the trust scheme works why hasn’t the government closed the loophole?  If your parents or grandparents mention a care home scheme it should raise a red flag and sound the warning bells.  If you are tempted to put your family home into a trust or want to recommend a care home money-saving scheme to your parents, our private client solicitors recommend that you take advice from a qualified estate planning lawyer before you do so.    [related_posts]  Using trust companies to avoid care home fees  With many of these care home schemes, the idea is that a family home is transferred to a trust company so the homeowner is no longer the legal owner. The former owner therefore cannot sell the property to pay for their care home fees. That principle sounds fine as the homeowner is told they are legally protected by a trust deed allowing them to live in the property rent-free. The trust company is responsible for the management of the property and ultimately will hand over the property to the beneficiaries of the trust when the homeowner has passed away. There are many problems with setting up a trust and placing a family home into it. These include: You are no longer the homeowner. If you need to raise equity with a lifetime mortgage you cannot do so The local authority may say the trust is a sham and accuse you of intentionally depriving yourself of assets to avoid payment of care home fees. The local authority can refuse to accept that the property is really outside your control and you are then at risk of an expensive and time-consuming battle with the council. When conducting means testing for care home fees the local authority could say that as you have deliberately deprived yourself of an asset the value of the family home will still be counted and you are therefore ineligible for free care home funding. Ultimately, the council could claim costs in any civil litigation if they think the trust was deliberately set up to evade care home fees and you will have spent thousands in fees in a scheme that does not work and leaves you without control of your property  You may have placed your property in trust as part of an inheritance tax reduction scheme and thought the scheme costs were modest compared to the amount your estate could save in IHT. However, in some cases, homeowners have gone into these trust schemes without being aware that their estate would be exempt from inheritance tax or would only have a nominal bill to pay because of the available inheritance tax exemptions  An unregulated and unqualified advisor recommending a trust to you may not explain the inheritance tax implications of your passing away within seven years of placing the family home into the trust Estate planning  When our estate planning solicitors sit down with you, we will talk with you about your assets, family, goals and priorities. We will give you clear and honest advice about why getting a management company to place the family home in trust may be a bad and expensive idea. A trust may be a good idea for a limited number of people. However, anyone contemplating putting property in trust should take specialist advice from a qualified estate planning solicitor to ensure that you and your family fully understand the risk and come to an informed decision. For help with your Will and estate planning call us or complete our online form.