Probate, Wills, Trusts And Lasting Powers Of Attorney Frequently Asked Questions
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Yes, by making a Will, you can set out exactly who is to get what amount. For example, if one child needs more money than another, you can leave them unequal amounts if you wish.
Yes. In most cases, there is no reason why the people inheriting your estate can't be the same people as those dealing with the practicalities. We can tell you whether this will cause a problem in your particular circumstances.
No. If you have any asset worth over £5,000, any stocks and shares or a property then your executors will usually need to apply for probate. If you don't make a Will, they need to apply for Letters of Administration instead, which is very similar. Unless your assets are all owned jointly with someone else and pass to them automatically, you will need Probate before your estate can be paid out.
We tailor-make your Will for you, the cost will depend on your own particular needs and circumstances.
If you don't have a Will, anything which your children inherit passes to them at the age of 18. By making a Will, you can determine when your children will inherit, safeguarding the money for a time when they may really need it. You can include a provision saying that your children are not to inherit until they reach 21 or 25 (for example).
The Intestacy Rules don't allow for any gifts to charity out of your estate but by making a Will you can leave a set amount or a percentage of your total estate.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a document that gives power to another person (called your ‘Attorney’) to make decisions for you. They are needed because the law doesn’t allow another person to do this for you without one, even if you are married.
There are two types of Lasting Power of Attorney:
- Property and Financial Affairs
- Health and Welfare
How many attorneys can I have?
As many as you want, but remember that the more people involved the more drawn out a decision may become.
Can I make my own Power of Attorney?
Yes, you can make a Power of Attorney yourself if you are well enough to do so. You cannot make a Power of Attorney for another person if they don’t have the mental capacity to understand what the document is, and the decision they are making.
Does having a Lasting Power of Attorney mean I lose my independence?
No. Your attorneys can only make decisions for you if you don’t have the mental capacity to do so, or if you give them permission to make the decision for you / act on your behalf. At Lawson-West, we employ extra precautions for our clients if they wish to use them to dissuade any misuse of a Lasting Power of Attorney.
Who is the “Donor”?
The Donor is the person giving away the power to the other people i.e. the person making the document. The donor is named on page 1 of the Lasting Power of Attorney.
Who is the “Attorney”?
The Attorney, or Attorneys, are the people being given the power by the donor. This is often the Donor’s partner, children, solicitor, or good friends.
Who is the “Certificate Provider”?
The Certificate Provider confirms to the Office of the Public Guardian that the donor has mental capacity to make a Lasting Power of Attorney. It is a very responsible role, as if it is found that the donor did not, the Certificate Provider is held accountable. If you use a solicitor to make your Lasting Powers of Attorney, they will often act as your certificate provider.
What is an Enduring Power of Attorney?
Enduring Powers of Attorney are the old version of Lasting Powers of Attorney. They are still valid, but they have different rules.
What is a General Power of Attorney?
General Powers of Attorney are documents that allow another person to act for you immediately. They do not require registration, and can be created instantly. However, if the donor loses mental capacity, they end immediately.
They are useful for short term assistance, and generally we create them to bridge the long gap between creation and registration of an Lasting Power of Attorney.
They are also known as ordinary powers of attorney.
How long does a Power of Attorney last?
Until the donor (the person who made the document and gave the power away) dies or cancels the document. If it is a General Power of Attorney, it finishes either at the event specified in the document being completed, on the loss of mental capacity of the donor or when the donor dies.
Can I cancel a Power of Attorney?
Yes, just contact the Office of the Public Guardian to cancel your own Lasting Power of Attorney. If you want to cancel a Power of Attorney for someone who doesn’t have capacity, you will need to make an application to the Court of Protection.
How long does a Power of Attorney take?
Registration of a Lasting Power of Attorney takes around 20 weeks at present from the date of submission.
Can I make a Power of Attorney for someone else?
You cannot make a Power of Attorney for another person if they don’t have the mental capacity to understand what the document is, and the decision they are making. Instead, you will need to apply to the Court of Protection for a Deputyship order.
Probate, Estate Administration and bereavement FAQs
What is Probate?
Probate is the word used to mean a certificate granted by the Probate Registry to executors of a Will that allows them to deal with the assets of someone who has died.
The word probate is commonly, but incorrectly, used interchangeably with other terms, which mean different things. This can be confusing! “Probate” may be used instead of:
- Grant of Letters of Administration - a certificate granted by the Probate Registry to people who are inheriting under the intestacy rules that allows them to deal with the assets of someone who has died.
- Grant of Letters of Administration with Will Annexed - a certificate granted by the Probate Registry to people inheriting under the Will, when there is no executor appointed, that allows them to deal with the assets of someone who has died.
- Estate Administration – the whole process of dealing with a deceased’s persons affairs. You can find out more about this process here
Do I need Probate?
Whether or not you need to obtain a Grant of Probate (or another type of Grant, see “What is Probate” above) depends on the assets in the estate. You will need a Grant if the estate includes one or more of the following:
- A house that is held in the sole name of the deceased, or it is held as a tenant in common;
- A large amount of money in the bank (this is usually around £50,000, but varies from bank to bank)
- A large amount of shares
- A large pay out from a life insurance
Sometimes, asset holders will tell you they need a Grant of Probate or a Grant of administration before they can release the money. In this case, you will need to take one out.
You may also want to take out a Grant of Probate or a Grant of Administration because you think that someone will make a claim on the estate. By taking out a Grant, you give people notice that you intend to administer the estate, and therefore they need to bring a claim quickly.
Why do I need Probate?
Most people need probate because the estate has one or more of the assets listed above under “Do I need Probate?”. You may also want to take out a Grant of Probate or a Grant of Administration because you think that someone will make a claim on the estate. By taking out a Grant, you give people notice that you intend to administer the estate, and therefore they need to bring a claim quickly.
How much does Probate cost?
There is a Court Fee to get a Grant of Probate or a Grant of Representation. The Court Fee changes, and can be found at Probate Fees - GOV.UK. If you want a solicitor to help you make the application, they will charge their own fees.
Lawson West Solicitors have a set price for “application only” assistance, and can provide a price proposal for full estate administration. Our fees can be found here (LINK TO OUR FEES)
How long does it take to get a Grant of Probate?
It depends on the estate, the assets, the person applying for the Probate, how they are applying and why they are applying.
In the simpler cases, His Majesty’s Courts and Tribunal Service say the time between application and receiving the Grant can be up to 8 weeks, although it can be much quicker or much slower.
In more complex cases, it is not uncommon for a Grant of Probate or Administration to take around 5-6 months from the time of application.
How long does it take to administer an estate?
It depends on what the estate consists of and what needs to be done. Because estate administration requires the responses of third parties, the timeframe is heavily dependent on them. However, it is not unusual for estate administration to take up to 1 year, although more complex estates can take longer than this.
Can Probate fees be paid from the estate?
Yes, the Court Fee can be paid directly from the deceased’s bank account. Any solicitor fees cannot be paid in this way, but if the solicitor is completing Full Administration, they will usually take their fees from the deceased’s assets when they are available.
Can the funeral bill be paid from the estate?
Yes, it can be paid directly from the deceased’s bank account. You do not need to pay this yourself.
Are Probate fees deductible for Inheritance Tax?
No, it is only liabilities that were outstanding at the date of death, and some funeral expenses, that are deductible.
What if there isn’t enough money to cover the debts of a deceased?
The estate is insolvent. It is the executors or administrators' job to pay people in the correct order to avoid paying people themselves. The order of payment is:
- Secured Creditors
- Funeral and Legal Expenses
- Preferred and Preferential Debts
- Unsecured Creditors
- Deferred Debts
Can children inherit money?
Yes, but if they are under 18 they cannot take the money themselves and it should be received by a parent or guardian on their behalf.
Do estates pay income and capital gains tax?
Yes. Estates do not have a personal allowance, so more and more estates are being required to pay income and capital gains tax.
Can I apply for Probate myself?
Yes, but make sure that you are answering the queries correctly as you will be personally liable to the Court for any errors.
Are Probate Records Public?
Yes. Once Probate has been granted, anyone can purchase a copy of the Grant of Probate and the Will (where there is one) for £1.50. You can search the register here.
What if I can’t find a beneficiary?
Executors must take all reasonable steps to locate beneficiaries. This will usually include taking out section 27 legal notices, checking with the Department for Work and Pensions and a beneficiary finding company to attempt to locate them. If you still cannot locate the beneficiary, it is recommended to take out missing beneficiary insurance in case they appear in the future.
Am I liable to pay beneficiaries myself if I am an executor and there is no money?
Executors are liable to pay beneficiaries personally if there is no money because of their own actions. If the estate is insolvent, the executors do not have to pay from their own money.
What is a Trust?
A trust is a legal arrangement created during life or on death. Assets (such as money, property etc) are given to the trust and are managed by the Trustees, for the benefit of someone else, called the beneficiaries.
What is a Family Protection Trust?
A Family Protection Trust is a legal set up that allows money to be removed from one person's estate (the “settlor”) and held aside for other people (often family members). This is often to pass on wealth to the younger generations in a tax-efficient way.
A Family Protection Trust in itself is not a type of trust but is usually a way to describe a type of trust known as a “discretionary trust”. Sometimes these trusts have another type of trust giving income to someone else before the discretion starts. However, because a Family Protection Trust is not a type of trust itself, the terms of the trust will depend on the wording of the trust document and therefore one Family Protection Trust may differ from another.
Are trusts a good idea?
For some people, trusts can be a very good idea. However, they are usually only good in very limited circumstances, and therefore it is very important to take professional advice when seeking one.
How do trusts work?
When a trust is created, assets are given to the trust. When this happens, they belong to the trust and no longer belong to the person who gave them away. This means that the person giving away the assets can lose control of the assets, and also the benefit of the assets. It also means that the person who gave away the asset is no longer the owner, and this can have various consequences. However, giving items to a trust has various tax implications and it is strongly recommended that you seek professional advice when considering this.
How much do trusts cost?
To create a new trust can cost thousands of pounds. As trusts need to be very detailed, heavily advised and written to fit bespoke circumstances, it is usual for creation of a Trust to be around £3,000 - £4,000 before VAT.
You will also need to consider the ongoing costs of running a trust, such as legal costs for creating appropriate documents and tax incurred by the trust.
Do I still need probate if I have a trust?
Potentially, although they are likely to cost you more money and time than an application for Probate would! A Grant of Probate will still be needed if you have assets remaining in your name that require it (such as over £50,000 held with one bank even if it is across multiple accounts).
Can I use a trust to avoid paying care home fees?
If you create a Trust solely to avoid care fees, the answer is no as you will be depriving yourself of assets. If you have other reasons to create a Trust, it is best to discuss the circumstances with your solicitor for bespoke advice.
Can I use a trust to avoid paying Inheritance tax?
They can help to save inheritance tax in limited scenarios, but they can also create an inheritance tax bill where there would not have been one if the circumstances are not properly considered.
Since 1 October 2007, Enduring Powers of Attorney were replaced by Lasting Powers of Attorney. However, any existing Enduring Power of Attorney made before 1 October 2007, is still valid but only in respect of Property and Affairs.
If you’d like us to draft a Lasting Power of Attorney you will need to provide us with the following information:
- Your full name and any previous names (e.g. maiden name), date of birth, address, telephone number, mobile phone numbers and email address
- The names and contact details of the person or people you have chosen to act as your attorney(s). (If you want to make both a Personal Welfare and a Property and Affairs LPA, let us know if you want to appoint the same or different attorneys for each).
- If you choose to appoint more than one attorney, you will need to consider whether you want them to work together or have the ability to work alone.
- You will also need to tell us if you require any restrictions to be placed on your attorneys, e.g. if there are specific assets you don’t want them to have power over, such as a house. If you have any personal views you want them to take into consideration about medical treatment or care, then this needs to be recorded as well.
An LPA cannot be used by the attorney until it has been registered with the Office of the Public Guardian. Before an LPA can be registered, it is necessary to notify members of your family or friends whose details are in the LPA that it is the intention of your attorney to register the LPA.
Once registered with the Office of the Public Guardian, your LPA can be used by your attorney in determining matters to do with your Personal Welfare or Property and Affairs.
Although LPAs are mainly designed to be activated following the loss of mental capacity, a Property and Affairs LPA can also be put into action if you still have mental capacity, but would prefer someone else to deal with such matters for you.
There are two types of LPA, which allow you to choose someone to act on your behalf as your attorney, in relation to either your Property and Affairs or your Personal Welfare.
If you make a Property & Affairs LPA, your attorney can make decisions about matters such as buying or selling property, managing your bank account or claiming benefits for you. If you make a Personal Welfare LPA, your attorney will be able to make decisions about where you should live, your medical treatment and any day to day care you require.
Your Will is a private document whilst you are alive and will not become a public document until after you die and probate is granted. Anyone can then obtain a copy from the Probate Registry for a small fee.
While you are alive, no-one has any right to see your Will unless you want them to.
When you make an LPA, it allows you to decide who you would like to deal with your affairs in the future, if you are unable or unwilling to deal with them yourself.
If you have children, you can name guardians to look after them if anything were to happen to you. The choice of guardians is up to you, we are happy to advise you on the factors to consider when making this important decision. If you haven't named anyone to look after your children, it might be that members of your family need to go to court for permission to look after them. In the worst cases, it might mean that your children are taken into care until this is sorted out.
Why do I need a Will if I don’t have anything?
Everyone has something (clothes, a few pennies, animals etc) – but if they don’t, they at least need someone to be able to wrap everything up (such as outstanding debts etc) on their death (an executor). This can only be appointed in a Will.
Why do I need a Will if I'm married?
If you are married and don’t have a Will, the law sets out that:
- If you have children, your spouse will get a set amount and your children will get a set amount
- If you don’t have children, your spouse gets everything.
Often, we find that most people expect their spouse to have everything if they don’t have a Will. This can cause problems if the house is only in one person’s name, as they children can become entitled to part of the house.
It is therefore much simpler to clarify your wishes in a Will.
Can my beneficiaries be my executors?
Yes, as long as they are over 18 when you die.
How much does a Will cost?
Will costs vary. You may have seen Wills advertised for £19.99 online but be aware of these – often they will try to sell extras in your Will that will be vastly more expensive. Our wills are all inclusive, with no hidden extras. Contact us for an up to date quote on 0116 212 1000 or on pskarlatos@lawson-west.co.uk.
Can I write my own Will?
Yes, but be wary if doing so! The Wills Act was created in 1837, and therefore we have nearly 200 years' worth of law telling us what certain phrases and words mean, and how to interpret certain situations. If you accidentally use, or don’t use, one of these, the meaning of your Will may be interpreted incorrectly, meaning your Will may either fail or give your money to the wrong people. You are much better advised to use a solicitor for peace of mind: if it goes wrong, it could cost thousands of pounds to put right when you die.
Do I still need probate if I have a Will?
Having a will doesn’t mean you don’t need probate and needing probate (or a certificate from the Court meaning the same thing) doesn’t require a Will. They are two separate things.
Whether or not you need to obtain a Grant of Probate (or another type of Grant, see “What is Probate” above) depends on the assets in the estate. You will need a Grant if the estate includes one or more of the following:
- A house that is held in the sole name of the deceased, or it is held as a tenant in common;
- A large amount of money in the bank (this is usually around £50,000, but varies from bank to bank)
- A large amount of shares
- A large pay out from a life insurance
Sometimes, asset holders will tell you they need a Grant of Probate or a Grant of administration before they can release the money. In this case, you will need to take one out.
You may also want to take out a Grant of Probate or a Grant of Administration because you think that someone will make a claim on the estate. By taking out a Grant, you give people notice that you intend to administer the estate, and therefore they need to bring a claim quickly.
Can my family members witness my Will?
It is advisable not to. If they are named in your Will, they will forfeit any gift you have left them by witnessing your Will. It is always best to use someone completely independent, such as a neighbour or a colleague.
Are wills public?
If a Will is submitted to the Probate Registry after death it becomes a public document. Before this time, it is a private document and shouldn’t be shared with others.
Can my Will be contested?
After you have died, your Will could be contested for a number of reasons. People contest Wills for lots of reasons, such as:
- They suspect the person who made the Will was forced into making a Will that said something that person didn’t want it to;
- They suspect the person who made the Will didn’t have the mental capacity to make a Will at the time they did;
- They suspect it is a fraudulent Will; or
- They have not been adequately provided for in the Will.
You can prepare documents before you die to help to show that you intended to create a Will on the specified terms to help fight any challenge after death.
Can I change my Will?
Of course! You can either make a new Will, which is often cleaner and easier, or a Codicil, if you only wish to make small changes to the Will.
Can other people change my Will?
Whilst you are alive, no, unless the Court of Protection approves a change because you have lost mental capacity and there is a compelling reason to change the Will.
After death, yes. The beneficiaries can agree to vary the terms of the Will if they so wish.
Can I make a Will for someone who doesn’t have capacity?
No, but you can make an application to the Court of Protection for a Statutory Will to be made. There needs to be a compelling case for this: an example may be where a young person was abused by a parent – if they died, their parent would inherit their wealth and therefore it would be appropriate to make a Will for the young person.
Not necessarily. The Intestacy Rules set out a strict order of who will inherit what. If you have children, your spouse may not inherit everything you own, whether or not you are close to your children or how wealthy they are in their own right. Your spouse might not even get the house, depending on how much it is worth.
