Brown paper ripped open to reveal the letters FAQ

Wills, trusts, probate and estates – FAQs

Q – I’d like to make plans for someone else to manage my affairs in case I get dementia or lose mental capacity in the future. What options are available to me?

A – A Lasting Power of Attorney is an effective way of deciding how you would like your affairs to be managed if you can no longer manage them yourself. You can outline how decisions should be made and then appoint a person you Trust (called an Attorney) to make them on your behalf. There are two types of Lasting Power of Attorney – a Health and Welfare Lasting Power of Attorney and a Property and Financial Affairs Lasting Power of Attorney.

Q – What can an Attorney do?

A – An Attorney’s powers are set out in the Lasting Power of Attorney. An Attorney must always act in the best interests of the person that granted them the power, for instance, they are not allowed to give the person’s money away, spend it on themselves or change the Will without court approval. However the safeguards are limited so it’s very important that you only appoint an Attorney you are confident will act in your best interests.

Q – Do I need a Will?

A – Around 60% of adults die without leaving a valid Will and take their chances that the intestacy rules will match what they would like to happen to their estate. However this means that they won’t get a say in who administers their estate and who it goes to. If you are co-habiting, have a second family, business assets or a taxable estate, a Will is essential planning.  If you have a very limited estate and are married with no children outside of that marriage, then it’s possible the intestacy rules could match what you would like to happen.  Either way you should take advice so that your decision not to have Will is an informed one.  See our Which Wills do we need?  Flowchart.

Q – What does an executor do?

A – An executor takes responsibility for dealing with a deceased person’s estate – which can include obtaining Probate, settling unpaid debts or bills, paying inheritance tax and distributing money or assets to beneficiaries.

Q – How do I choose an executor?

A – Anyone aged over 18 can act as an executor, but when you make a Will, it’s important that you choose your executors carefully. It’s advisable to have at least two executors, in case one of them dies. It’s also advisable to choose someone who’ll have the right skills to be able to manage finances and paperwork when dealing with your estate. It can be an onerous and time consuming role and carries personal liability if things go wrong. For this reason, many people often appoint a professional executor such as a solicitor. Clarke Willmott are able to act as professional executors through Clarke Willmott Trust Corporation Ltd.

Q – Can I save inheritance tax on my home and stay living there?

A – The simple answer is ‘Yes’ but it is very complicated and you will need to pay a full market rent for living in your home under the terms of a lease. In addition, if you give away the property to your child and they become divorced or have other financial claims on their estate, your home will be at risk.  Some capital gains tax will also be payable when the house is sold. Using the family home in your estate planning is usually the last resort however there are other effective planning solutions we can offer using your Will and trusts.

Q – Can I protect my home from a Local Authority care fees assessment?

The simple answer is ‘Yes’ but it is very complicated and you will need to pay a full market rent for living in your home under the terms of a lease. In addition, if you give away the property to your child and they become divorced or have other financial claims on their estate, your home will be at risk.  Some capital gains tax will also be payable when the house is sold. Using the family home in your estate planning is usually the last resort however there are other effective planning solutions we can offer using your Will and trusts.

Q – What’s the best way to reduce inheritance tax?

A – There are many ways to reduce inheritance tax, including making gifts to friends, family or charities and using trusts. It is worth consulting a specialist to ensure that you understand the pros and cons of each option. Clarke Willmott’s team of Wills, Probate and Trust solicitors and tax experts can provide comprehensive advice about reducing your inheritance bill.

Q – Can you reduce inheritance tax whilst dealing with a deceased person’s estate?

A – It is possible to reduce inheritance tax after a person has died, through a dead of variation or by placing assets into a trust. However, there are complex rules about how trusts can be used in this way so it’s advisable to speak to a specialist Probate and trusts solicitor.

Q – Do I need to get a Grant of Probate?

A – If you are an executor of a Will it is likely that you will need a Grant of Probate to deal with the administration of the estate. However if the estate only has joint assets that pass to the surviving spouse or partner or bank accounts with less than £5,000 in them you may be able to deal with the estate without a grant. You are still responsible for dealing with any necessary inheritance tax reporting, even if a grant isn’t required.

Q – Do I need a solicitor to obtain a Grant of Probate?

A – It’s possible to apply for Probate without a solicitor. However, in many situations it will be advisable to use a specialist Probate solicitor. For example, if no Will was left by the deceased or the Will has been contested, if tax is payable or if charities are beneficiaries. A solicitor can also help with the administration of complex estates – for example estates which have business, agricultural or foreign assets.

Q – What can go wrong when dealing with an estate?

A – Being a Personal Representative (executor or administrator) can be an onerous role.  It is time consuming and has to be done properly to avoid HMRC penalties and claims by beneficiaries.  Family pressures and divided loyalties can also cause problems.  Read our factsheet about the common pitfalls for Personal Representatives to learn more.

Q – How do I contest a Will?

A – If you have grounds to challenge a Will (eg the Will was not valid or you were left out of a Will) there are several options available to you. A caveat can be issued to prevent the Grant of Probate being issued until the Will dispute has been resolved. If the Grant of Probate has already been issued, Inheritance Act claims can be brought against the estate within 6 months.

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Contact a Wills and Probate solicitor

For specialist legal advice about Wills, trusts, Lasting Power of Attorney and Probate contact one of our solicitors on 0800 652 8025 or contact us online.