FAQs
We know that legal documents can be off-putting, using terminology you aren’t familiar with. Here are some questions which people often ask which can help untangle the jargon around Wills, Probate, Lasting Powers of Attorney and Trusts.
Wills
If you are an adult with a family and/or assets, you need a Will. A will sets out what happens to your assets when you die, you can also nominate who will carry out your wishes and who will look after your children.
No, there is no minimum level of assets someone needs to own before they make a Will.
Not necessarily. If you are married, the surviving spouse inherits the first share of your estate. If you aren’t married, your partner doesn’t inherit your estate. They might inherit any assets held jointly such as a property.
The law sets out who inherits from you if you don’t leave a Will. The laws around this have been in force since the 1920s so don’t represent modern family relationships. We have a helpful flowchart here which sets out who inherits when there is no Will.
An executor is the person you nominate to carry out your wishes in your Will. They can be a partner, family member, a friend or someone independent.
Unless you appoint a professional executor such as a solicitor, you don’t pay your executor. You might want to leave them something in your Will to thank them for acting as your executor, but you don’t have to.
Your estate is, broadly speaking, your assets after the payment of any debts. It includes personal belongings as well as money, investments and property. It doesn't always include pensions or life policies written in to trust.
When we talk about Wills, we talk about your estate which is what your chosen beneficiaries will inherit.
A guardian is someone nominated by you to look after any children under the age of 18 if both you and the other parent has died.
Yes, you can nominate what happens to your pets in your Will.
Yes, you can list specific items such as cars or jewellery and set out who receives these items. You don’t have to be so specific, but some people have a clear idea of who they would like to inherit things.
A legacy is a gift of something – it can be a specific item, or it could be a cash amount.
Yes, you can leave instructions for your funeral in your Will. This doesn’t have to be detailed, it can be as simple as specifying a burial or cremation.
With our telephone or video call service, our team will talk to you about the options when providing for your family, be they complex or straight forward.
Lasting Powers of Attorney
They are documents in which you decide who would make decisions for you if you were unable to do so for yourself. That can be for financial decisions, healthcare decisions or both.
We are all living longer, some of us with complex health needs. LPAs authorise someone else to make decisions on your behalf and although we don’t like to think of a time when we might need help, it is better to plan now for a potential future event.
It is vital you choose people you trust to act on your behalf. They might be called upon to act at a time when you are most vulnerable so you need to decide who will best represent your wishes and feelings.
Yes, you can have up to 4 Attorneys and appoint replacements too should the need arise. Our team can talk to you about the options.
Yes – some people appoint different people in a financial LPA to the health and welfare LPA. If you are a business owner, you might have a financial LPA for your business appointing your fellow directors and a separate financial LPA for your personal finances.
In order to use the documents, they must be registered with the Office of the Public Guardian, a government body who hold a central register of all LPAs. It is recommended that the LPAs are registered straight away so they are ready for use should they be required.
Registration is currently taking 6 months so if the documents are needed in an emergency, this wait can cause issues for families.
Trusts
A trust is a way of holding assets for the benefit of others. Trusts can be set up during lifetime or in a Will.
Lifetime trusts can be used as part of tax planning or to provide for vulnerable beneficiaries. Trusts can also be useful with blended families where there are children from previous relationships.
Trusts aren’t the right sort of planning for everyone so we would need to find out more about your circumstances to see if a trust was right for you.
TRS is a government scheme to create a central register of trusts. This includes trusts which are set up in Wills after someone has died and trusts established during an individual’s lifetime. We can assist with registration for professional advisors.
Probate
Probate is required when an individual dies owning land or assets such as cash in bank accounts, shares, investments. Probate is obtained from the Probate Registry by the executors named in the Will. If there is no Will, the beneficiaries apply to the Probate Registry for a grant of letters of administration. The term ‘probate’ is used by most individuals to cover situations where people have or haven’t left a valid Will.
Some banks release money without probate and each bank has a different threshold for when they will release money.
Not all estates require probate, our team will be able to speak to you to advise if probate will be required.
Yes, although many people prefer to have help from a professional to make sure they have provided the correct information to the Probate Registry and to HM Revenue & Customs. Professionals can advise on what tax is payable (if any) and make sure all tax allowances are used so it is usually worthwhile engaging a professional to assist.
Executors can be personally liable if they get anything wrong when dealing with an estate so many executors seek professional advice to help them carry out their duties.
When an individual dies without a Will, the law dictates who inherits and who deals with the estate. worth.legal can advise who inherits and who sorts out the estate.
Court of Protection
A Deputy is a suitable person who is appointed by the Court of Protection to administer either the property and financial affairs, or the health and care affairs, of a person who has been assessed as lacking capacity to make certain decisions for themselves.
A deputy can be a professional such as a lawyer or an accountant, or a relative or trusted friend of the person who has been assessed as lacking capacity.
If a person has been assessed as lacking capacity to make a will, then the Court of Protection can approve a will on their behalf. This is a detailed process involving giving notice to a number of parties, so expert legal advice should be taken.
The legal costs of having a deputy appointed depends very much on who the deputy is going to be, how straight forward the process is (for example, there are no disputes about capacity or about who will act as deputy). Some fees are fixed by the Court and some fees are not a fixed fee, but they are still looked at very carefully by the Court’s Costs Office who must approve how much the legal fees are overall. This process is called the assessment of fees. Hourly rates must be charged in accordance with the Guideline Hourly Rates.
For a more detailed understanding of how much it may cost in legal fees and court fees for your particular case, please contact us to discuss matters.
Personal Injury Trusts
A personal injury trust, also commonly referred to as a “PI Trust”, is a trust that holds money that has been awarded as compensation to a person as a result of a personal injury. There are different types of PI trust for use depending on the injured person’s individual circumstances.
If an injured party is already receiving means tested benefits, such as Universal Credit, then placing money that has come from a damages award into a trust can ensure that the entitlement to receive benefits continues. Even if an injured party does not receive any benefits at the time that the compensation is paid, the use of a trust can protect eligibility for benefits in the future.
Other benefits include:
- To help protect assets from divorce or bankruptcy
- To reduce the burden of managing a large sum of money
- To protect against pressure from family and friends to pay for things and lend money
A trust needs to be created within 52 weeks of the first payment received as a result of an injury. It is therefore important to take expert advice as soon as possible about whether a trust is right for you.
A trust is not necessarily the right choice for everybody. An injured party may decide not to have a trust for one or more of the following reasons:
- The professional fees to set up and administer a trust can seem like an unnecessary expense
- It may be hard to choose suitable trustees
- It may feel uncomfortable asking the trustees for money from the trust
