Court of Protection & Power of Attorney

 

The death of a loved one and the subsequent responsibility of dealing with estate administration and probate can be very difficult indeed.

Benson Watkins specialist team can give advice and support on dealing with an estate, or acting as an executor or administrator. We will aim to make the experience as stress-free as possible.

Experts in Probate and Estate Administration

In order to collect assets, sell property and wind up and estate, you will usually need to obtain a “Grant of Probate” from court.

The Grant of Probate confirms that the person appointed in the Will (the Executor) or if there is no Will, the Administrator, has the authority to deal with the deceased’s estate.

 

 

 

FAQ - Wills and Probate

1. What happens if I do not make a will?

It becomes necessary for your closest relative to apply to the Probate Court for what is called "Grant of Administration". If the Court is satisfied with the formal documentation lodged with them, a sealed court certificate (called "Letters of Administration") will be issued and that will be full authority for the named person to collect in the assets of the deceased.

There is a strict "pecking order" of beneficiaries depending upon whether the deceased left a husband or wife and whether or not there were children. If for example there is a widow and there are children then the first £125,000 of value is paid to the widow plus the personal household items and the rest of the estate is divided into two halves:

One half is shared immediately between the children and the other half is held on trust so that the widow receives the income for life after which it is divided between the children. This usually is a most unsatisfactory arrangement and can have very unfortunate financial consequences for the widow. It would be the direct result of the deceased having failed to protect his family by making a will.

2. Is it expensive to make a will?

The charge for a simple will should be about £150 + VAT. It will, of course cost more if you have complicated requirements involving trusts etc. The legal charges involved are relatively insignificant when compared, in some cases, to the tax savings that can be achieved. More importantly than cost is that the distribution of your assets is done in accordance with your wishes and not some rigid and often irrelevant intestacy rules.

3. How can I avoid paying inheritance tax of 40%?

Firstly of course you must make a will because Inheritance Tax mitigation is virtually impossible otherwise, except by giving assets or money away during your lifetime and successfully surviving seven years. At the present time every individual has a tax free allowance of £300,000. If the estate is less than that figure then there is no tax payable at all.

Due to a recent change in the law, it is possible that the Inheritance Tax entitlement of one spouse can be passed to a second spouse if any part of it remains unused on the death of the first spouse. This means that in the event of the death of the second partner, a tax allowance of up to £600,000 can be made available to avoid the payment of Inheritance Tax. There is also an exemption from tax relating to any sum left by a husband to wife or vice versa.

Each individual will need to consult in some detail with his or her solicitor on these points. There are other allowances against Inheritance Tax, which can be discussed at that time.

4. What is an executor?

After selecting the individuals who will benefit from your will, you have to appoint someone you trust to carry out the administration work and to put your wishes into effect. This is your executor. You can appoint anyone as your executor such as a member of your family, a friend or a professional person.

You could even appoint your bank although you would be dismayed to learn how much your bank would take out of your estate as payment for their services. Normally the executor carries out his duties free of charge except where you choose to appoint a solicitor or other professional person.

5. Who should I appoint as executor?

By far the best person is a close relative or a major beneficiary of the will.

6. Why should I make a will?

Without a will you could create serious financial problems for your spouse by depriving them of funds needed to maintain their standard of living. You could paying substantial sums in Inheritance Tax that could have been avoided and you will give up the opportunity to make individual specific gifts to persons you would have preferred to "remember" in your last will and testament.

7. How should a will be signed?

The formalities are extremely rigid. Two witnesses who are not beneficiaries must be present when you sign and they themselves must sign as witnesses in the presence of all three of you. A mistake in this respect cannot be corrected after the testator has died.

8. What exactly is involved on an application for a grant of probate?

Estates vary in their constituent assets and in value generally. The Executor will probably need the help of a solicitor who will firstly investigate all assets in order to calculate the estate value and this may entail the engagement of a professional property valuer or accountant where a business is involved. After that the application forms need to be prepared and signed by the Executor including in particular an oath to be sworn by him confirming the facts of the application generally and undertaking to carry out his duties lawfully. Details must be supplied to the Capital Taxes Office of the Inland Revenue and all Inheritance Tax paid at that stage. Only when you have a clearance and tax receipt can the matter proceed further to an application to the Probate Court.

9. What do solicitors charge for probate work?

This varies from firm to firm. Some charge as much as two and a half percent of the estate plus a time charge. Benson & Watkins Solicitors will normally charge half a percent plus a time charge of £150 per hour but this will need to be negotiated between solicitor and client on each occasion.

 

 

 

The Court of Protection is the judicial body responsible for decisions relating to the management of the finances and affairs of people who lack the mental capacity to manage them themselves.

We have a team of solicitors who specialise in assisting people who need to deal with the Court of Protection. We can help you if:

  • You are responsible for managing someone else’s affairs
  • You are concerned about the ability of someone else to manage their affairs
  • You are concerned about your own ability to manage your affairs
  • There is a dispute or uncertainty about someone's ability to make decisions for him/herself
  • There is a dispute about what social care, residence or medial treatment is in a person's best interests

Contact us now on 01792 704320 to see how we can help you prepare for the present and future and ease any burdens that you may be currently experiencing.