Wills, Trusts and Probate

Who really knows what the future holds for us? One thing is certain though and that is one day we will die. None of us really want to think about dying but when faced with the inevitable, we owe it to our loved ones to put our affairs in order and ensure that they are properly catered for. This can be effectively achieved through making a Will, or indeed updating an existing Will. Not only does a Will enable you to make financial provision for the people and good causes you really care about but it can also safeguard vulnerable beneficiaries, preserve assets from attack by Care Home fees and, above all, with careful planning it can reduce the impact of any Inheritance Tax burden for the next generation.

No Client's financial circumstances are ever the same as another. Some Wills can be straightforward and prepared with the minimum of fuss. Other Wills may be more complicated, reflecting the complexity of the Client's personal or financial circumstances. Our expertise will ensure that you have a Will that is specifically tailored to suit your individual needs.

Making a Will is not compulsory, but if you choose not to then chances are it will be the taxman who benefits.

There can be nothing more stressful and traumatic than losing someone close to you. When overwhelmed with grief, dealing with an Estate can add enormously to the sense of loss, particularly if the Deceased's financial affairs were complicated. We offer a sympathetic and caring service dealing with all aspects of the administration of estates.

We can alleviate the burden by acting on your behalf in obtaining the Grant of Representation, finalising the deceased's tax affairs including Inheritance Tax, Income Tax and Capital Gains Tax, realising the assets, settling the liabilities and distributing the estate according to the terms of the Will or, if there is no Will, according to the intestacy rules. Where appropriate we can also help you make tax savings, for example by varying the Will, which could save many thousands of pounds.

If the estate includes a farm or business which needs to be sold or wound up we can work closely with our agricultural and commercial law Teams to ensure that the transaction proceeds smoothly.

In the upsetting situation where a loved one has passed away without making financial provision for dependants in the Will or where the intestacy rules fail to make adequate provision (as for example with a co-habitee), we can advise whether there is a potential claim against the Estate.

We can advise on the creation, implementation and registration of an Enduring Power of Attorney (EPA). An EPA is a very powerful legal document which effectively hands over the power to manage your financial affairs to another person or people who are then known as your “attorneys”. The Attorney can carry on acting after the donor has become mentally incapacitated, but only if the EPA is registered with the Court of Protection. It is not a step to be entered into lightly but one that may suit your particular circumstances. Where appropriate we can act as your Attorney so that we are empowered to administer your affairs if you are unable to do so yourself either because you have lost the mental ability to do so or you simply don't want the pressure of dealing with matters yourself.

Most people assume that an EPA is a document that will only benefit the elderly or infirm. Most care homes for instance will recommend that their residents have an EPA in place. However, it can also be extremely useful where a person has lost a partner who dealt exclusively with their joint finances and they just don't know where to start. In this instance the survivor may call upon an adult child to help out.

However, everyone should give serious thought to having an EPA regardless of whether it is actually ever utilised. Powers of attorney are widely used in commercial and business transactions. Take for example the businessman who has complete control over the financial management of the business, including the bank account. If he has an accident and falls into a coma, who is going to take over the day to day running of the business? Without an authorised person at the helm to make sure that suppliers, contractors, employees, landlords, Customs & Excise etc still get paid the business could quickly run into trouble. Even couples can benefit from having an EPA in place so that if, for example, their mortgage is paid from the bank account of just one partner and he or she temporarily loses capacity or gets posted abroad the mortgage payments can still be kept up.

We are experienced in dealing with the Court of Protection whether it is the simple registration of an Enduring Power of Attorney or making an application for Receivership.

The combination of our caring approach and specialist expertise in the provision of legal services for the elderly will give you peace of mind.

We can advise on the creation, management and administration of Trusts.

We also offer advise on the specialised area of law relating to the setting up and administration of a Charity.

A higher proportion of people than ever before are leaving substantial estates or valuable assets in the form of their home and where there is a significant sum available for distribution, arguments and disputes frequently arise.

The problem is compounded by the fact that in modern society we now have more complicated family relationships. This means that it is not uncommon for dependants to be overlooked in a will, forcing them to make a legal claim on the estate.

There are generally three types of claim.

1. Invalid Wills

It is sometimes possible to prevent (or revoke) a Grant of Probate on the basis that the Will was invalid because either: -

• The person making the Will did not have the necessary testamentary capacity
• The person making the Will was subject to the undue influence of someone who has benefited by the Will
• The will was not properly signed or witnessed

2. Claims Under the Inheritance (Provision for Family and Dependents) Act 1975

Whilst it is generally the case that people can leave their money to whoever they wish, there are some circumstances whereby a claim may be made against a valid will. The Inheritance (Provision for Family and Dependents) Act 1975 provides that certain categories of people may have a claim against the will (or, if there is no Will, against the rules of intestacy) if they can show that they have not been reasonably provided for. Such people include a spouse (or in some circumstances a former spouse) an unmarried partner or children by a previous relationship.

3. Claims for Proprietary Estoppel

These claims are less common and arise when a claimant is able to show that he or she had incurred expenditure or acted to their detriment on the reliance of a promise made by the person who has died without carrying out that promise. For example, a daughter who gives up her career and moves in with her elderly father to look after him on the basis that he will then leave her the house may have a claim if he does not keep his word.

We can also have unclear Will terms rectified by the Court or by agreement and can assist in applications for the removal of Executors and Trustees from their duties. We can provide advice in relation to negligence claims against other solicitors for poor or late preparation of Wills and for mismanagement of the administration of estates.

We are one of a very few firms who have a team dedicated to providing advice and assistance should a dispute arise.