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The Importance of a Lasting Power of Attorney (LPA)

20th June 2024 (3 minute read)

It’s a thought no one enjoys pondering, but what would happen if we fell ill or had an accident and were unable to make important decisions for ourselves? Many people believe this only applies as we get older, however, no one is immune to an unfortunate circumstance, which makes it all the more important to think about and plan for sooner rather than later. Unfortunately, 53-year-old Derek Draper, husband to Good Morning Britain presenter, Kate Garraway, contracted COVID-19 in March 2020. As Derek battles the effects of the virus, Kate recently spoke out about her financial struggles as Derek fell ill without a Lasting Power of Attorney (LPA) in place. Before examining Derek’s situation, let’s take a closer look at what this means.

What is an LPA

An LPA is a document that lets someone, the ‘Donor’, give one or more people, known as the ‘Attorney(s)’, the legal authority to make decisions on their behalf. This would apply if the Donor ever lacks the physical or mental capacity to do so themselves or they choose not to make decisions for themselves for another reason. According to the Office of the Public Guardian, less than 1% of the adult UK population has an LPA. In England and Wales, there are two types of LPA: Health &welfare: This can include things related to one’s daily routine, medical care, decisions on moving to a care home or receiving life-sustaining treatments. This only applies when someone is unable to make their own decisions. Property & finances: This can include decisions related to managing one’s bank account(s), paying bills, benefits or pension payments or selling one’s home. This can apply as soon as it is registered, with the Donor’s permission. To set up an LPA, you need to be at least 18 years old and have mental capacity (i.e. the ability to make your own decisions). What happens without an LPA?

If someone loses mental or physical capacity, it's often a significant emotional and psychological burden on their family. However, if a loved one doesn’t have the legal authority to make decisions on their behalf, that burden intensifies. For example, if someone has a joint bank account and they lose their mental capacity, a bank will likely freeze the account, blocking most transactions. They will only reinstate the account after the court has appointed someone, called a deputy, to handle financial responsibilities on the individual’s behalf. This can be a long and expensive process, during which no money can leave the account to take care of bills or other family expenses. Similarly, if decisions need to be made about medical treatment without an LPA in place, a family loses their authority to make those health-related decisions.

LPAs and estate administration

An LPA can only be in effect while the Donor is alive. If the Donor passes away, the LPA is no longer in effect, meaning the Attorney(s) can no longer make decisions on behalf of the Donor nor control any assets. Upon death, the Will comes into effect and the Executor becomes responsible for administering the estate. If there is no Will, the rules of intestacy apply, and the appointed Administrator manages the estate. The Attorney may or may not be the same person as the Executor, however, if there is no Will, the Attorney could apply to become the Administrator of the estate. Putting it into perspective.

As mentioned above, Derek Draper did not put an LPA in place before falling ill, which is putting his wife, Kate, in a tough situation as Derek’s name is on most of their assets. As we now know, without an LPA, no one can deal with Derek’s affairs during his incapacity, not even his wife. “One of the practical problems – which a lot of people would’ve experienced if they’ve got the absence of someone in their life – like many things the car is entirely in Derek’s name, the insurance is in Derek’s name, a lot of our bank accounts.” - Kate Garraway, wife of Derek Draper. With an LPA in place, Kate would have been able to focus on caring for their two young children as well as dealing with the emotional difficulties of her husband being ill. Handling household finances and insurers would have been one less thing to worry about. This is clearly not a situation anyone wants to be in, however, their story truly highlights the importance of an LPA to reduce the weight on your loved one’s shoulders, just in case.
Please get in touch if you have questions about Lasting Powers of Attorney on 01943 678100.

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What are the duties of an Executor of a Will?

8th November 2023 (5 minute read)

In the UK, the Executor of a Will is responsible for managing the estate of a deceased person, paying any debts and taxes, and distributing the remaining assets according to the terms of the Will. The specific duties of an Executor may include:

  • Obtaining a Grant of Representation: This is a legal document that confirms the Executor's authority to manage the deceased person's estate.

  • Gathering and securing the deceased person's assets: This includes finding, identifying, and protecting the deceased person's property.

  • Paying debts and taxes: The Executor is responsible for paying off the deceased person's debts and any taxes owed, such as Inheritance Tax.

  • Distributing the remaining assets: The Executor must distribute the assets according to the terms of the Will, which may include selling property or transferring assets to beneficiaries.

  • Keeping records: The Executor must keep accurate records of all transactions and decisions made in the estate administration process.

  • Communicating with beneficiaries: The Executor should keep the beneficiaries informed of the administration of the estate and any decisions made.
  • It is important to note that Executors have a financial and legal duty to act in the best interests of the estate and its beneficiaries and must act with care, skill, and impartiality.

    What is the first thing an Executor should do when someone passes away?

    The first thing an Executor of a Will should do is establish the deceased person's assets and liabilities. This includes finding and securing the deceased person's property and accounts, as well as determining any outstanding debts or taxes that need to be paid.

    The Executor should also obtain a copy of the Will, if one exists, and determine who the beneficiaries are. After this, the Executor should obtain a Grant of Probate, if necessary, to confirm their authority to manage the estate.

    What is a Grant of Representation?

    A Grant of Representation is a legal document issued by the Probate Registry in the UK that gives the person named in the Grant the authority to administer a deceased person's estate. This Grant is required when the deceased person owned assets in their sole name and the assets cannot be transferred to the beneficiaries without it.

    The two most common types of Grants in the UK are a Grant of Probate and a Grant of Letters of Administration. A Grant of Probate is given when the deceased had a valid Will, while a Grant of Letters of Administration is issued when the deceased passed away without a valid Will, also known as dying intestate.

    How long does the Grant of Representation process take?

    The time it takes to receive a Grant of Representation can be influenced by several factors, such as the complexity of the estate, the number of beneficiaries, and the speed of submitting required forms and documents to the Probate Registry. As a result, the duration for receiving the Grant may vary.

    Typically, the process of getting a Grant of Representation takes around sixteen weeks. However, it may take longer if there are issues that need to be resolved, such as a contested Will (also known as contentious probate) or multiple beneficiaries, these can extend the process for several months. Additionally, backlogs at HMCTS can also result in a delay in obtaining the Grant.

    Can the Executor of a Will be a beneficiary?

    This is a frequently asked question by Executors. Yes, the Executor of a Will can also be a beneficiary.

    It is common for individuals to name a close family member or friend as both the Executor and a beneficiary when drafting their Will. However, it is important for the Executor to maintain impartiality and act in the best interests of all beneficiaries, regardless of whether they will personally benefit from the estate.

    If there is any concern about a conflict of interest, it may be better to name a neutral party as the Executor before the estate administration process begins.

    How long does an Executor have to settle an estate in the UK?

    There is no specific time limit for settling an estate in the UK. The length of time it takes to settle an estate can depend on a variety of factors, such as the complexity of the estate, the availability of assets, and the need to resolve any disputes or legal issues.

    On average, it can take several months to a few years to fully settle an estate, but the process can be quicker or slower depending on the circumstances. It is important for the Executor to act efficiently and diligently in settling the estate, while also ensuring that they comply with all legal and financial obligations.

    How much do Solicitors charge to complete the estate administration process?

    The cost of using a probate Solicitor to complete the estate administration process can vary greatly depending on the size and complexity of the estate, as well as the level of service provided by the Solicitor.

    Pricing can also vary based on their charging methods; many local Solicitors charge by percentage where the charge can be between 1% - 5% of the value of the estate, which can result in a very large fee once the estate administration process is complete. However, some probate providers charge a fixed fee for estate administration, while others charge an hourly rate.

    It is important to contact various probate providers and obtain quotes to determine the most cost-effective option for the estate. It's also worth noting, that additional fees such as VAT, the probate fee, and other third-party costs may be applicable.

    Credence assists clients with probate services and provides comprehensive support to families in need.

    Credence can help with obtaining a Grant of Representation, navigating complex legal and tax requirements, and everything in between.

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    Leaving it all to the dog: Pet inheritance and disputes

    20th June 2023 (2 minute read)

    Karl Lagerfeld, the former Creative Director at Chanel, died in 2019, leaving behind probably the most famous cat in the world, Choupette (although a close second has got to be the lawyer who couldn’t remove the cat filter on Zoom during a Court hearing in 2021). Lagerfeld was the theme of this year’s Met Gala and not one but two celebrities paid tribute to his legacy by dressing as Choupette.

    It has been reported that Lagerfeld left Choupette $1.5 million in his Will, although the amount has not been officially disclosed, and that she is now being cared for by Lagerfeld’s former housekeeper Françoise Caçote. But is it legal to leave money to an animal and how does it work practically?

    In legal terms, pets are considered personal chattels unless they are a working animal, in which case they are a business asset. Choupette is a social media “influencer” with over 250,000 followers on Instagram and Lagerfeld claimed that she made $3m in one year during his lifetime, although one may question whether an influencer pet can be described as a “working animal”. HMRC probably have more traditional forms of animal work in mind.

    Either way, an animal is property, and it is not possible to leave money directly to a piece of property. So, what are the options?

    One option is to leave the legacy on trust for a pet. The general rule for trusts is that they have a definite object, ie human beneficiaries. The logic is so that the beneficiary can enforce the terms of a trust.

    Trusts which are for the maintenance/welfare of animals in general, rather than specific animals, are valid as they are charitable trusts (Lewin on Trusts notes that ‘In the case of a charitable trust it does not matter that there is no human beneficiary who can compel its performance, because the Crown as parens patriae does so through the Attorney-General‘).

    A trust for a testator’s pet gets around this by being a “trust of imperfect obligation”. The funds are stipulated to be paid to a legatee to use the funds to look after the pet. If the legatee, who is to act as nominated trustee, is unwilling to take on the trust then the trust fails, but if the trustee accepts the trust then the Court will make a Pettingall order (from the case of Pettingall v Pettingall (1842) 11 LJ Ch 176) under which it will pay the money to the trustee but require the trustee to give an undertaking to use the funds for the required purpose ie to look after the pet. If the trustee fails to do so, then those entitled to the property on the failure of the trust (perhaps other beneficiaries named in the Will or those who benefit under intestacy) can apply to Court to enforce the trust, or argue that the trust has failed and seek the property under resulting trust.

    Another, perhaps more straightforward option, would be to leave the pet alongside a cash legacy to a nominated person, although the terms would need to be carefully drafted to ensure that person only receives the legacy if they agree to look after your pet. There would be no one to oversee the person’s conduct so the nominated person would have to be carefully chosen as someone the testator trusts. But the gift shouldn’t require further court involvement after the testator’s death.

    Gifts for the benefit of pets can occasionally result in hard fought estate disputes.

    In the recent mutual/mirror wills case of Re McLean, the deceased, Maureen McLean, and her husband Reginald in 2017 made mirror wills in which they each left their estates equally between their four children (three being from Reginald’s first marriage and one, the claimant, from Reginald and Maureen’s marriage). In 2019, following Reginald’s death, Maureen made a new will leaving her entire estate to her son. Reginald’s three children from his first marriage challenged the 2019 Will on the basis that the 2017 Wills were mutual Wills. Maureen’s son refuted the challenge, claiming that his mother wanted him to have her property in order to look after her parrot. The Central London County Court upheld the 2019 Will, but the case is being appealed.

    Ensuring the welfare of pets in wills requires navigating a legal landscape that blurs the line between property and companionship. The key is to give careful consideration as to who should be the guardian to your furry friend (bonus points if they dress up as your pet to celebrate your legacy after you’re gone!).

    Deborah Nicholls-Carr, senior associate in Withers’ Trust, estate and inheritance disputes team.

    If having read this article you would like to discuss your own situation please contact Credence Wills

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    How difficult is it to do probate yourself?

    10th April 2023 (2 minute read)

    Probate refers to the process of obtaining a Grant of Probate, which is a legal document that an Executor may need to administer the estate of someone who has died. Probate is not always required. It is generally required when:

      • Registering the death
      • Valuing the assets and liabilities
      • Valuing the property
      • Valuing any gifts made by the deceased

    Once the estate has been valued for Inheritance Tax purposes (if applicable), an application can be submitted to the Probate Registry. This can take several months to be approved, and the process can be delayed by errors with the application or Probate Registry delays.

    Many choose to instruct a professional to apply for probate on their behalf, as it is a complicated process that involves a lot of paperwork and legal knowledge. It’s best practice to obtain a range of quotes when choosing a professional provider so that you can understand what is included in each service and make an informed decision.

    For advice on how to proceed with the probate process, get in touch.

    It’s important to be aware of the costs associated with applying for probate and estate administration to help you plan for the financial impact. Probate Registry fees in the UK are charged by the government for issuing a Grant of Probate, which may be required to administer the estate of a deceased person.

    These fees depend on the value of the estate. As of 2023, the fees are £273 if the estate value is £5,000 or over. However, no fees are applicable if the estate value is under £5,000. The fees are payable by the Personal Representative (the individual dealing with the estate) and must be paid before the Grant can be issued. It is important to note that these fees are separate from any fees charged by professional probate providers.

    The cost of instructing a professional to complete the probate process or full estate administration can vary depending on the complexity of the estate, the size of the estate, and the specific services required. Professionals, such as probate and estate administration providers and Solicitors, can charge in a variety of ways, including fixed fee pricing, hourly rates, or a percentage of the estate. Many people find fixed fees preferable, as they provide a clear view of exactly what you will be paying upfront. Hourly rates can quickly add up and the final cost may be unclear at the outset. A percentage of the overall estate can be expensive, and it is not always reflective of the work involved.

    In addition to the Probate Registry fees and probate service fees, there may be other costs associated with the estate administration process that should be taken into consideration, such as: valuation fees; insurance costs; court fees; and more.

    By obtaining a clear breakdown of the costs involved before proceeding, you can ensure that there are no unexpected expenses. Executors can claim back reasonable expenses from the estate once the administration is complete. Get Started

    8 life events that should trigger a Will update

    18th January 2022 (3 minute read)

    Life isn’t predictable nor does it happen in any specific order. Some people may get married at 21 or others at 60. Some may get divorced while others may have an opportunity to move to a new continent every few years. Whatever path we are led down in life, there is one thing that applies to us all – we will experience events that trigger the need to create and up to date a Will.

    Creating a Will is often the first hurdle to overcome. Keeping an existing Will up to date is the next one. It’s no secret that many people do not enjoy thinking or planning for their death but simply having an updated Will can eliminate complications and make things easier for our loved ones left behind.

    Generally, it is recommended that one updates their Will every five years, however at the very least, there are certain life events that should help trigger a reminder.

    Let's have a closer look at eight of them.

    1.Getting married or becoming civil partners

    Research conducted by Tower Street Finance revealed that 54% of UK adults have a Will. However, many people do not realise that if they get married or enter into a civil partnership, their Will becomes invalid and must be updated. If they don’t do so, their estate would be distributed according to the rules of intestacy, not the Will, and could result in their spouse or civil partner losing out.

    On the upside, including a spouse or civil partner as the beneficiary of the assets in your Will could allow them to take advantage of Inheritance Tax (IHT) exemptions, giving them the ability to double the IHT threshold, up to £650,000. This would mean that if an estate is valued under this threshold, no IHT is paid. Anything over the threshold is subject to the 40% tax.

    2.New additions to the family

    Statistics released by Royal London, YouGov, IRN Research and Orchard show that more than half of British parents (59%) do not have a Will or they have one that is outdated. This is a worrying indicator as having a baby is a critical event when a Will should be updated. Why? Well, there are two key reasons:

    A Will ensures that your children are taken care of financially if you are no longer here to support them as they grow up. This especially applies to stepchildren, who are currently not accounted for in the Laws of Intestacy. Unless a stepchild has been formally adopted by you, they will not automatically benefit financially from your estate unless they are included in your Will.

    A Will provides you with an opportunity to express who should become your children's guardian in the event their other parent is already deceased or your children lose both parents at the same time. Without including this in your Will, the courts will decide who will be appointed as guardian, which could be someone your children are not familiar with or a member of the family who you would not have appointed if you had the choice.

    This life event does not only apply to parents but also grandparents who would like their grandchildren to inherit part of their estate. Updating your Will whenever a new grandchild is added to the family will ensure no one important is left out..

    3. Buying a property

    For most of us, buying a property is not just the place we call home, it is the largest purchase we will make in our lifetime. Because of this, it has the potential to significantly increase our own net worth or that of your beneficiaries, so dictating who this asset should be passed to is not a decision to be taken lightly.

    If you own a property solely and pass away without a Will, your property will be distributed according to the rules of intestacy.

    If you own property jointly, it will be arranged as either joint tenants or tenants in common. If a property is owned as joint tenants, your share automatically passes to the surviving joint party meaning that it cannot be passed to a named beneficiary in a Will. If the property is owned as tenants in common, you are able to pass your share of the property to a named beneficiary in a Will.

    Therefore, buying property should be a moment that makes one realise the significance of having, or not having, a Will.

    4.Moving overseas

    Whether it is due to work or fulfilling a bucket list dream, spending several years overseas or moving from country to country is not as uncommon as it once was. This means that more and more people are likely to have assets in more than one country that need to be accounted for in a Will. However, if expats do not plan appropriately, they could significantly complicate their estate.

    Generally, each country where an asset is held will have its own rules to dictate what happens to those assets, including who can inherit them and what taxes are applicable. Another important area where the rules differ is in whether your country of residence will recognise a Will made in a foreign country or to what extent they will do so. Here are a few examples:

    Anyone domiciled in the UK will pay Inheritance Tax on assets held anywhere in the world. It’s not like this in many other jurisdictions.

    Many European countries, such as Spain or France, do not allow a person to freely decide who receives their assets, even if they have a Will. This is called ‘forced heirship’ and, in a nutshell, the laws will dictate who the entitled heirs of an estate are.

    Using a professional Will Writer when you live or have lived in a foreign country is a wise idea. This will help lower the risk of assets being distributed against your wishes, shorten the amount of time it takes to settle the estate and could help to lower the amount of tax payable.

    5.Separation or divorce

    With a divorce rate of 42% in England and Wales, couples with a Will need to be aware of how to handle this unfortunate circumstance.

    Separation and/or divorce has the potential to significantly disrupt one’s life and lifestyle, which means that among the settlement of finances, children, property, etc., updating a Will is likely to be forgotten about. But what could happen if it falls off the to-do list?

    It is important to remember that being separated means that you are still legally married or in a civil partnership, so if your spouse or civil partner is due to inherit part or all of your estate or become your Executor, that will still happen if you pass away before it is updated. Even if there is no Will, your spouse or civil partner would still be eligible to inherit under the rules of intestacy. So in other words, separation has no effect on a Will. This is a perfect example of an event that should trigger the creation or update of a Will to prevent someone you are in the process of parting ways with from benefiting from your estate.

    Alternatively, divorce has a bigger impact on a Will. Once the decree absolute (the final order) is issued, the former spouse or civil partner is removed from the Will in any areas they were mentioned, creating a gap if no substitute arrangements are made. As a result, until the Will is updated, those assets which your former spouse or civil partner were due to inherit will be distributed according to the rules of intestacy. While this could mean that an estate is inherited by children or siblings, it could also mean that a new partner or new family would not be provided for.

    Therefore, it is advisable for a divorcee to update their Will as soon as possible to ensure their wishes are carried out.

    6. Change in financial situation

    It can happen – you win the lottery, inherit a large sum of money from a loved one or the stock market skyrockets in your favour. Experiencing any significant change in your financial situation is a time when one should review the contents of their Will to account for the change in their net worth.

    Similarly, property values may decrease or you may experience financial hardship resulting in high withdrawals from a savings or investment account. Being familiar with what exactly your beneficiaries could expect to receive can help you plan for all outcomes accordingly.

    7. Change in health situation

    Increases in age tend to correlate with the likelihood of having an up to date Will due to the higher risk of health complications as we get older. However, anyone is subject to a sudden change in health or an accident that could result in incapacity or premature death.

    The sudden diagnosis of a serious or terminal health condition is scary to ponder, however, it’s important to remember that under certain circumstances, the validity of a Will could be challenged due to your health if it is postponed. For example, if your mental capacity is impacted by the condition, and you create or update your Will during this time, it may not be valid.

    If the condition will not affect mental capacity but could shorten your life expectancy, planning ahead to ensure your affairs are in order and your loved ones will be taken care of by way of a valid Will is an action worth pursuing.

    8. Death of a loved one

    The passing of a beneficiary could disrupt the plans you have in place for your estate. If this unfortunate event happens, an update to your Will is required to decide what should happen to the gift left to them.

    If it is an Executor that has passed away before you, you need to update your Will with who you would like to be responsible for administering your estate to avoid any confusion upon your passing.

    As you can see, there are quite a few life events that trigger the need to update a Will. It is worth noting that if you’ve already created a Will, a brand new Will may not always be required if you are making small changes such as changing the name of a beneficiary or Executor, or changing the amount of a gift. Generally, it is acceptable to use a codicil if the amendments affect less than 10% of your estate.

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