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Frequently Asked Questions

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Frequently Asked Questions
Home > Why BMcF? > Frequently Asked Questions > Wills, Trusts and Probate
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Wills, Trusts and Probate

 

Planning for later life, ensuring children are provided for and putting your affairs in order through a variety of processes.

 

Wills, Trusts and Probate
Can anybody witness my will?
Any adult of full understanding, yes, but some categories will disqualify themselves from benefiting from the Will.
Can I contest or challenge the validity of a Will?
Yes, in certain circumstances. If you have concerns about whether any of the following situations apply to the deceased’s last Will, then you should seek legal advice: • The Will was not signed or witnessed properly; • The person who made the Will lacked the capacity (mental understanding) to do so; • The person who made the Will was pressured into or coerced by another person to make the Will in the terms that they did; • The person who made the Will did not know and approve the contents of their Will; • You suspect that the Will is forged. If a Will is found to be invalid by reason of any of the above, then the estate will be administered in accordance with the terms of the deceased's previous valid Will or, if there isn’t one, in accordance with the intestacy rules.
Can I create a trust for my children in my will?
Yes, children cannot generally receive money until they are 18 years old. It may be wise to let them benefit at a greater age, or be assisted by Trustees until, say, they finish education and training. A properly prepared Will can set this up.
Can I make my own Lasting Power at Home?
Yes. However, if you make a small error, e.g. a wrong date in a 21 page form, the Office of the Public Guardian will keep your Court fee of £82 per document. A mistake may mean that you have to complete the whole form again. In the unlikely event that we get it wrong, we absorb the cost of getting it right. Think of it as an insurance premium of sorts. In addition we can explain the ins and outs. There may also be additional information that needs to be contained in the LPA that you may not have thought of.
Can’t my executors in my Will set up Powers of Attorney?
No. Executors have no power until a person dies and the Will becomes effective. The authority your attorneys have under a Lasting Power of Attorney comes to an end on the death of the Donor.
Certified?
Yes, the Power, not you! When signed, someone has to sign to confirm that the Donor has the requisite capacity (as detailed under the Mental Capacity Act).. To become effective it is then stamped by the Office of the Public Guardian, a government body which oversees these powers and is there to prevent abuse of powers.
Do I need to employ a solicitor to prepare my will?
At present anyone can prepare your Will. We believe the safest way is to instruct a trained, regulated, insured specialist solicitor, with no hidden fees and guaranteed safe storage.
Do I really need to make a will?
Yes! Although the legal system will provide basic rules, known as the intestacy rules, for your estate (money and property), these may not suit your circumstances. It will not deal with guardianship, i.e. who supervises your children, and this can finish up being dealt with by Social Services. A Will cures both these problems. Co-habitees do not benefit under the basic rules, nor do step-children.
How do I decide whom to make my trustees?
As mentioned above, executors and trustees can benefit under a Will, but care should be taken to avoid conflict of interest between trustee duties and personal gain. Your solicitors will be able to give more detailed advice.
How do I set up an attorney?
With a document called a Power of Attorney. Find out more on our Lasting Powers of Attorney page.
How long will it take to sort out the estate?
This varies depending on each estate. It is not recommended to distribute an estate before 10 months has expired since the date of the Grant of Probate. This is because, anyone wishing to make a claim against the estate can do so within 6 months of obtaining the Grant of Probate. They then have a further 4 months in which to serve the claim. In the event that the Executors wish to distribute before the expiry of 10 months, then it is recommended that they obtain Early Distribution Insurance.
How much will it cost me for the legal proceedings?
We understand that the costs of bringing and defending such claims can be prohibitive and can offer an unparalleled range of funding options including, in appropriate cases, conditional fee ("no win, no fee") and discounted fee ("no win, low fee") arrangements. We can also offer 'after the event' legal expenses insurance cover against the risk of having to pay your opponent's legal costs. If the parties settle the dispute between themselves, then they can agree between them who should pay the costs. If the matter goes to a trial and is decided by a judge, then the judge will also decide who should pay the costs of the dispute. The usual rule is that the losing party will pay the winning party’s costs, although on some occasions the court can order that costs be paid by the deceased’s estate. The court will decide not only who should pay the costs but also the amount of cost that a party should pay another and this is determined by a procedure known as assessment. In practice, it is unusual for a party to recover all his or her costs from another party, even if you win. A full trial is likely to cost several thousand pounds at least. However, many matter settle at an earlier stage and in that case the costs would be less than those incurred at a full trial. It is not possible to be more precise as to costs as each matter is unique, but your solicitor will give you an estimate for each stage of work as matters proceed.
I am not happy with the way in which the executors are dealing with the estate, what can I do?
I am a beneficiary of an estate and am not happy with the way in which the executors are dealing with the estate. Is there anything I can do? It depends on what the problem is. Each estate and each administration is different and therefore there is no set time in which an estate should be administered. However, you are entitled to ask for information about the estate from the executor and to receive updates. If you have concerns that an executor is not dealing with an estate properly, or is not fit to administer the estate, then you may be able to apply to the court to remove him or her and replace him with another person.
Is there anything I should have ready before contacting you?
You will need to consider who will be your executor(s), to manage things after you die, and guardian(s) of minor children. Full names and addresses of all concerned are needed. Executors can benefit under the Will.
My partner and I were not married and he / she died without making a Will.  What can I do?
As your partner died without making a Will, his or her estate will be administered in accordance with the intestacy rules and you will not inherit anything. If you owned assets in joint names, such as your home, your partner’s share may pass to you depending on how you owned that asset. For example, if you owned your home as what is called joint tenants you would inherit your partner’s share. However, if you owned your home as what is called tenants in common, you would not and your partner’s share would fall into his or her estate to be administered in accordance with the intestacy rules. You may be eligible to bring a claim under the Inheritance (Provision for Family & Dependents) Act 1975. We suggest that you seek legal advice about whether such a claim would be appropriate in your circumstances.
So, an attorney has a free hand, and can take my money and house?
Not so. The Mental Capacity Act says attorneys must abide by your decisions until you are clearly unable to make them at all. Attorneys must always act in your best interests. Having said that, you should only appoint someone you trust.
What about my next of kin?
People do not have authority by reason of being related to you, or regarded as “next of kin”. Someone needs legal authority, under a Will, or, in the case of a living person, an appointment in writing.
What are attorneys?
Put simply, someone, or a number of people, whom you trust and authorise to do things and make decisions for you.
What constitutes a valid Will?
A Will is an official legal document, so there are certain rules that must be followed in order for the Will to be valid. These rules range from the relatively simple (for example, the person writing the Will must be 18 or over) to the potentially complex, such as the person writing the Will must be of sound mind. It is common for nobody to realise that a Will is invalid until the person making the Will has died. That leaves friends and family in a difficult position – what do you do when a loved one has died but their Will is invalid? In some cases mistakes can be rectified by applying to court to have the Will corrected. In other cases friends and family may end up in a dispute over what to do with the estate, especially when somebody feels they have been unfairly left out of the Will or not adequately provided for.
What do I do when somone dies?
There is generally a lot to do, from registering to winding up business matters. A specialist solicitor can help to guide you through this difficult time, where mistakes can bring disaster.
What do the words testator and testatrix mean?
Testator - a man who makes a Will. Testatrix - a woman who makes a Will.
What does an Executor do?
An Executor (or Administrator where there is no Will) has to safeguard the deceased person’s assets, insure them, value them, trace them, deal with applying for Probate, deal with taxes, pay debts and costs, “call in” or cash them, and pay what is left to those who are properly entitled. This may involve bankruptcy searches, identity checks and accounting. Or you could instruct a solicitor to do it and just check and sign the documents
What does beneficiary mean?
A Beneficiary is a person who receives a benefit under a Will or a Trust.
What does it cost to make a will?
The cost, like anything, varies according to the amount of work involved. A simple Will starts from £180 including VAT and a pair of simple Wills for a couple start from £300 including VAT. Storage is free and we supply the advice and witnesses (where you sign in the office) needed. You should consider what it might cost not to make one.
What happens if I die without a will?
The law writes your Will. There is currently no provision for survivors of unmarried couples, and widows/widowers do not automatically take the whole estate. Step-children can also miss out. Disputes can result, with huge costs and unfairness.
What happens if I have made a will but then want to change it?
Unless a couple make a specially made “mutual” Will it can be changed at any time before death or loss of mental ability. “Mutual” Wills can be created unintentionally - your solicitors will be able to avoid this.
What happens if my circumstances change?
Marriage revokes (cancels) a Will made prior to a marriage, unless it is specifically worded in a Will that it is not to be revoked (cancelled). Divorce does not cancel the Will, but treats the ex spouse as having predeceased the testator/testatrix.
What happens if there is no Will?
If the deceased died without leaving a valid Will, then his or her estate (the assets after payment of any debts) will be administered in accordance with the intestacy rules, which are rules set down in law as to who inherits what proportion of the estate. Those entitled to inherit under the intestacy rules include a spouse, civil partner and children. The rules also provide for parents and siblings to inherit where there is no surviving spouse, civil partner or children. Currently there is no provision in the rules for unmarried cohabiting couples. A surviving unmarried partner will not be automatically entitled to anything from the deceased partner’s estate if there is no Will. In these circumstances, the surviving partner may wish to make a claim against their deceased partner’s estate. Advice should be sought from a Solicitor.
What if I haven’t been provided for or I am unhappy about my share?
If the Will is valid you may be able to bring a claim under the The Inheritance (Provision for Family and Dependents) Act 1975. This Act allows certain categories of claimant to bring a claim against an estate where 'reasonable financial provision' has not been made for them either under a Will or intestacy (where no Will was made). Husbands and wives, civil partners, ex-spouses, ex-civil partners, children, those treated as children, people who live together and those who were financially dependent on the deceased immediately prior to their death, are all entitled to claim. Claims under this Act must be issued at court within six months of the date of the grant of probate or grant of letters of administration.
What if there is a dispute?
It is important in those circumstances to have sound, experienced advice and to do nothing which might later be challenged. All concerned should be advised by separate firms to avoid conflict of interest.
What if there is no will?
There is a set of rules (the Administration of Estates Act) which sets a pattern for who is in charge, and who receives which assets.
What is a Lasting Power of Attorney?
What is a Lasting Power of Attorney?
There are two types - Health and Welfare is one, authorising your attorney to decide care and treatment matters for you, and the other is Property and Affairs, that is, to deal with money and property, investments, tax and business generally.
What is a Legal Executive?
Legal Executives are highly skilled specialist lawyers, generally employed and supervised by solicitors. In these replies the expression “solicitor” and “legal executive” are interchangeable.
What is Probate?
Probate is a Court certificate proving that the Will is the correct one, and identifying the Executor named in the Will as having authority to act. Where there is no Will the Grant is called Letters of Administration.
What is the possible benefit of a trust?
Some people you want to leave money to may be receiving benefits calculated according to their savings. The benefits may be lost if they inherit money, but not if it is in a properly worded trust in your Will. If a beneficiary is in financial trouble, a trust can protect their inheritance. There are many other possible reasons to make a trust Will, saving a lot by spending a little.
What should I do if I want to contest a will?
You should seek legal advice as soon as possible. As an initial step you may be advised to apply to the Probate Registry to enter a caveat which will prevent the executors or administrators from obtaining a grant of probate, or grant of letters of administration, and administering the estate. This will allow further time in which to make investigations as to the circumstances surrounding the preparation and signing of the Will, which may include obtaining the deceased’s medical records and information from any solicitor instructed in relation to the preparation of the Will.
What sort of appointment can I make?
Basically there are quite a few: Pension and Benefit appointees, set up with the Pension Service, and you do this direct. Your bank may accept a separate signature authority. A short (Section 10) Power of Attorney is good for one year, or until a person loses mental ability to deal with business matters. A Lasting Power of Attorney is the Rolls Royce of appointments.
What types of Will can I get at Bridge McFarland LLP?
A simple Will, a Trust Will, Wills in contemplation of marriage, any sort of Will.
What will it cost?
Your solicitor must tell you the likely cost, hourly rate and should set a ceiling, which will only be raised in exceptional circumstances. Costs can be reduced by doing parts yourself, and a good solicitor will advise which parts are safe to do in that way.
When I die could there be taxes chargeable to my estate?
When a person dies there is a possible charge to Inheritance Tax. Bridge McFarland LLP can advise on how to minimise this, if it is likely to apply to you.
Where do I start?
Ring for a no-obligation meeting with our Private Client lawyers. Home visits are not charged extra.
Why do I need a Grant?
It depends on what assets need to be administered during the estate and so a Grant, whether to deal with Probate or Letters of Administration, is not always needed. If the deceased owned a property or land in their sole name then a Grant will be needed. You will need to speak to a Solicitor for advice as to whether or not a grant is required.
Why should I use a Solicitor?
A specialist solicitor will be skilled, sympathetic, efficient and heavily insured against mistakes. The cost need not be high, and the complex processes made easier to understand and go through.
Will it involve going to court?
We aim to resolve matters by negotiation, mediation or other methods of alternative dispute resolution where possible. If it is, in those circumstances you would not need to go to court. However, this all depends upon the other side and their attitude to the dispute. You will only need to physically attend at court if your matter proceeds to a full trial, and in those circumstances we will provide you with full support.
Will there be tax to pay?
Not necessarily. All estates requiring a Grant must file an HM Revenue Inheritance Tax return, whether tax is payable or not. Getting it wrong can be a criminal offence and lead to penalties.