Wills & Probate FAQs

Why do I need to make a will?

It is estimated that two thirds of the UK population have not made a will. At Hodge Jones & Allen Solicitors, we see many examples of what can go wrong when a person dies without a will.

If there is no will, fixed rules apply as to who will inherit, in what proportions and when. Some of the problems which can arise include:

  1. Your spouse may only inherit part of your estate if you have children.
  2. If you are not married, your partner will not inherit at all.
  3. If you are in a second marriage, the children from your first marriage may lose some of their intended inheritance.
  4. Your estate may pass to family members that you do not wish to inherit.

The advantages of making a will include:

  1. You can choose who will act as executor.
  2. You choose who will be guardian and trustee for your children.
  3. You can obtain advice about Inheritance Tax planning.
  4. You can leave legacies to charities, friends and family members.
  5. You will ensure that your estate passes to the right people.
  6. If you are in a second marriage, you can provide for your spouse and ensure that your estate passes to children from an earlier marriage on their death.

This is just a short overview of the numerous problems that occur when you don’t make a will.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a formal deed which gives authority to another person (your attorney) to make decisions on your behalf.

This is a useful document as it means that you can choose who should manage your finances and make decisions about your health and welfare if you are unable to do this yourself in the future.

Most powers of attorney become invalid if the person who set it up loses mental capacity, but a Lasting Power of Attorney remains in force whether you have capacity or not.

There are two separate LPAs: one for property and finance and one for health and welfare. You can choose different attorneys for each LPA.

You can appoint one attorney or a number of attorneys. If you appoint more than one attorney, you will have to consider whether they must make all decisions together or whether they can act independently of each other.

It is possible to appoint one attorney, such as your spouse, and also a replacement attorney, such as your children, if your spouse is unable to act.

Setting up LPAs is an important part of planning for the future.

What is a grant of probate?

A grant of probate is a court order which gives the executors authority to deal with property and assets owned by someone who has died (the Deceased). The grant gives the executor the legal authority to access the Deceased’s bank accounts and sell property and shares owned by the Deceased.

If the Deceased did not leave a will, this court order is known as a grant of Letters of Administration.

The grant of probate is presently issued by one of a number of district probate registries but is currently in the process of moving online and being centralised.

Why should I ask a solicitor to help me make a will?

There are many ‘will writing’ products on the market and in theory you can make your own will. However, the rules for making a will are complicated and for a relatively modest fee a solicitor can ensure that:

  • Your will is completed correctly and is a valid legal document.
  • You distribute all your assets, avoiding a possible claim from the Crown against your estate.
  • You make clear your wishes in the event that one of your named beneficiaries dies before you do.
  • You receive advice on how to avoid paying unnecessary inheritance tax.

Badly drafted wills can result in damaging probate disputes each year; expensive litigation is the last thing you want to leave your loved ones.

I made a will years ago, so I don’t need to worry about this anymore, do I?

Even if you have already made a valid will, we would recommend that you review it regularly – at least every 5 years. Your life circumstances may change: perhaps you are getting married? Divorced? Perhaps you now earn considerably more than you did when you made your original will? Or have received an inheritance of your own? Any significant changes in your status or circumstances can affect your existing will, and may even make it invalid. If you marry or remarry, for example, your will is automatically rendered invalid unless it was made clear at the time that you were intending to marry and wanted the current will to remain in force afterwards.

I have two children: a seven-year-old and a twelve-year-old. I am currently thinking about making a will and would like to leave my property to my children. Are they too young to inherit directly?

Since both your children are under 18 then they won’t be able to inherit directly. But this doesn’t mean they can’t benefit under your will. Your solicitor will be able to help you arrange for their inheritance to be held in trust for them until they are older. Meanwhile, you can ensure that your children don’t lose out by allowing the trustees you nominate to use the income and/or capital for your children’s benefit, such as to pay school or university fees on their behalf.

My partner and I live together but are not married. He has children from a previous relationship but has promised that I would inherit the house when he dies. I’m on the deeds of the house so is it really necessary for him to make a formal will?

You should both make a will as soon as possible. Whether or not you automatically inherit your partner’s share of the house depends on whether you own it as Joint Tenants or Tenants in Common. If your ownership is as Tenants in Common your partner’s share of the property will pass to his children, as will his other possessions. If you were married then you would inherit the first £270,000 of your partner’s estate and half the remainder. You should talk to your solicitor (as should he) about making a valid will and also about how you may be able to avoid paying unnecessary inheritance tax.

How do I go about making a Will?

The Procedure to make a new will with us:

  • Call us on 0808 223 0980 and ask to speak to a Legal Help Advisor in the new client enquiries department about making a will; the Advisor will ask you for some basic information, including your contact details and they will pass the message on to a member of our team who deal with wills.
  • A member of the team will contact you to answer any immediate questions that you have and to arrange a meeting. At that stage, they will try to give you an estimate of the cost. But it can only be an estimate at this stage. The cost will depend on the assets that you have and the complexity of the will that you want (or perhaps need). If you want a home or hospital visit, that will also affect the cost.
  • Prior to the meeting, we will send you our will questionnaire and ask you to fill it in and either return it prior to the meeting or to bring it with you to the meeting.
  • At the meeting, we will go through the questionnaire as necessary, and make sure that we have your instructions for the will and have discussed with you all the relevant details. (If someone has brought you to the meeting, we may have to ask them to leave the room while we discuss these issues with you in private). At the end of that meeting, we should have a better idea of the cost of doing this work, and will let you know.
  • We will then send you an engagement letter along with the firm’s terms of business. The engagement letter will set out the work we are doing for you and the anticipated cost. We will ask you to sign that and send it back to us. We are required to have the signed engagement letter before we can start preparing the will.
  • We will then prepare a draft will, with a letter of explanation of the terms of the will for you to approve, along with an explanation of any other matters relating to the will that were discussed at the meeting. If requested, we may also prepare a letter of wishes for your executors, to be read with the will.
  • Subject to any further questions you have or changes you want made to the will, we will prepare a final version for you to sign.
  • If possible, we prefer you to come into the office to sign the will, so that we can supervise this and make sure that it is valid. Otherwise, we can send it to you and explain how it needs to be signed and witnessed.
  • We offer a free storage facility for your will when it has been signed and will be happy to send you a copy.
  • If you would like us to, we can register the will with Certainty for a small additional fee. They keep a record of your name and address, the date of your will and where it is. At a later date, this can be helpful for family or friends if they don’t know where your last will is.

The whole process is usually quite quick (often no more than a few weeks) and quite painless!

Do you need to amend an existing will?

You may already have a will which needs to be updated to take account of changes in your life. Will amendments need to be undertaken with care to ensure your wishes are fully understood and are legally binding. Most importantly, if your will does not reflect your current circumstances, your assets may be distributed in a way you hadn’t intended.

You can’t amend your will after it’s been signed and witnessed. The only way you can change a will is by making an official alteration called a codicil which we can prepare for you. You must sign a codicil and get it witnessed in the same way as witnessing a will.

If you need more substantial changes made to your will it is usually advisable to have a new will prepared by one of our legal advisers which formally revokes your previous will.

It is sensible to check your will every so often to see if it needs updating. You should seek professional advice on updating your will if any of these circumstances apply to you:

  • You wish to remove or add beneficiaries or change the share of assets due to them;
  • You have had children or you now have grandchildren;
  • You have married or entered into a civil partnership;
  • You have separated or divorced from your spouse or partner;
  • You have moved house or acquired further property or assets;
  • The Executor or beneficiaries in your will have died

These are just examples; there may be many other circumstances when you need to change your will.

We can advise on how these changes can affect the distribution of your estate and how to change both the beneficiaries named in your will and the amount of money or assets paid out to them. Our team can also provide specialist tax advice to reduce or defer the payment of inheritance tax in your estate where possible.

I do not agree with the amount of inheritance left to me and think I deserve more. Can I make an application to the court?

Depending on your relationship to the deceased you may be able to make a “maintenance” application under the Inheritance (Provision for Family and Dependants) Act 1975 (“Act”). Section 1 of the Act lists the persons who may make an application to the Court for maintenance.

These persons are essentially:

  • Spouse or civil partner of the deceased;
  • Claimants who cohabited continuously for at least 2 years immediately prior to the deceased’s death
  • The deceased’s child/ren (child can include an adopted, fostered and step-child); or
  • Claimants treated as the deceased’s child (including adult children)
  • Claimants being “maintained” by the deceased.

Should you consider yourself to have maintained by the deceased you may wish to speak to one of our team to assess the merits of your claim.

How long do I have to make a claim?

This generally depends on what type of claims you wish to make.

Claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“Act”) must be issued within 6 months of the date of the grant of probate or letters of administration (grant of representation).

Challenges to a Will generally have to be made within 12 years (but obviously the sooner the better) unless you are alleging fraud.

Do I need to go to court in order to resolve my dispute?

Unbeknown to many clients one of the main legal objectives of litigation is to encourage parties to negotiate and try to resolve their grievances prior to escalating matters to court. Court should always be the last resort and parties can be penalised for escalating matters to court without showing evidence of prior negotiation.

Parties are encouraged to negotiate settlement of a dispute and may choose to use a form of Alternative Dispute Resolution (ADR). There are many methods of ADR available to clients – mediation these include third party facilitators through mediation, third party decision makers through arbitration, third party informed opinions through early neutral evaluation, and permanent and or temporary decision making through independent adjudication.

Our skilled and experience solicitors can assist you in negotiating the best settlement which may allow you to resolve your case expediently while mitigating court costs and legal fees.

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