Wills and Probate

Mental capacity - To make a will you must have mental capacity, this means that you have to be able to fully understand the content and effect of the will, understand your estate, understand who may have a claim on your estate and not be suffering from any ‘disorder of the mind’ at the time the will was made and at the time that it was signed (executed). If you have any questions regarding mental capacity, we are happy to answer these for you prior to booking an appointment.

Personal information – You will need to provide your personal details, including your full name, date of birth, current address, relationship status, and names and date of birth of any children.

Estate – You will need to consider what assets you own and what would formulate part of your estate. You will also need to confirm what assets are solely owned by you and whether there are any assets in joint names and whether property is held as tenants in common or as joint tenants. This will be discussed with you at your appointment.

Executors - You will need to decide who you trust to be the executors in your will. Your executors are the people that will obtain the grant of probate, if necessary, wind up your affairs after you pass away and distribute your estate as per the terms of the will. Being an executor carries a lot of responsibility and so you should choose someone that is capable and someone that you trust.

You can choose one or multiple people to act as your executors. If you are struggling to think of someone to act as an executor, you can name a professional executor. You will need to provide the names and addresses of your executors at your appointment.

Beneficiaries – You will need to consider who you want to leave your estate to in your will. You can leave specific gifts to beneficiaries or leave part or all of your entire estate. You will need to provide your beneficiaries names and addresses at your appointment.

If you choose to leave gifts or donations to charities, you will need to provide the charities full name and address and also the charities registered charity number. Gifts to charities are usually exempt from inheritance tax.

Gifts – These can include specific gifts such as a piece of jewellery. You can also have pecuniary gifts in your will (set amount of money) or residuary gifts.

Your residuary estate is what remains of your estate once all gifts and debts have been paid.

Funeral – You can confirm your funeral wishes in your will, however, loved ones are not legally obliged to follow these wishes.

Children – You need to consider naming a guardian for any minor children that you are the sole parent of at the time of your passing. This appointment is not binding as the Family Courts have jurisdiction in relation to minor children, this can be discussed in detail at your appointment.

A will has to be witnessed and signed correctly in order for the will to be valid and to prevent it from failing. If we prepare a will for you, we will offer to have you sign the will in our office in order to ensure it is attested and signed correctly.

A will must be signed in the presence of two independent witnesses. The witnesses cannot be beneficiaries under the will or married to or be civil partners of any beneficiaries. We never recommend any of your family or their spouses act as witnesses or anyone who might become married to any of the beneficiaries.

Witnesses do not need to know you personally. They do not need to read the Will. They do not need to know anything about the Will. The witness simply signs the Will to confirm that you have signed it in their presence.

The testator (the person who’s will it is) and the two witnesses have to watch each other sign the will and in turn sign the will themselves. Each witness then writes their name, address and occupation.

Once signed, we recommend your Will is placed inside an unmarked envelope in a safe place, ideally in a fireproof box in your home. Let your executors or beneficiaries know the location of your Will. Nothing should be attached to your Will, not even a paperclip as this can cause issues with probate, as it may appear as if something was attached to your Will which has then been removed.

It is advisable to keep copies of your bank account details, utility bills, mortgage provider and anything else that you may think to be relevant when you do pass away. This will make life much easier for your beneficiaries and executors to deal with your estate.

We offer a free storage facility whereby your Will would be stored in a fireproof box in our office and provide you with a copy. This is free of charge.

You can also register your Will with the National Will Register who will keep a copy of it to prevent it from being lost or destroyed. More information can be found on their website: www.nationalwillregister.co.uk

All Wills can be challenged, whether they can be challenged successfully is a different matter. If your Will includes your family there is little reason that it will be challenged, if you exclude someone from your Will then it may well be challenged. You can reduce this risk by having a properly drafted Will and you could also confirm within the will or by including a letter to your executors why you have excluded someone. This is a complex area of law and if you have any concerns tis should be discussed with a solicitor.

There are various types of will to suit each person’s needs, for example:

• Single will
• Mirror will
• Trust will

Single will – This is a basic single Will drafted to record an individual’s wishes.

Mirror will – Used if a couple, for example, had the same or similar wishes to be contained within their respective Wills, the Wills, therefore, ‘mirror’ each other. Mirror wills can be changed, without the other person knowing, so, for example, if you both agree to leave property to each other and thereafter to your children and your mirror wills reflect this, the surviving partner is free to change their will in its entirety. You do, therefore, need the right advice and guidance before having a mirror Will drafted.

Trust wills - There are different types of trust Wills and are used for various reasons. For example:

• Property trust will – You can appoint your trustees to look after your share in a property. For example, a wife could leave her share of a property for her children but give her spouse the right to live in the property.
• Life trust will – This is similar to a property trust will but means that you can put all or part of your estate on trust rather than just a property.
• Discretionary trust will – This gives your trustees the power to manage inheritance on behalf of any beneficiaries that may require assistance. It also enables you to name potential beneficiaries and give your trustees the discretion over which or any of the potential beneficiaries actually receive anything from the trust and if so, when and how.

We offer Will drafting at a fixed fee, dependent upon the type of Will required.

• Single will
• Mirror will
• Trust will

Single Will - £250 + VAT

Mirror Will - £400 + VAT (price is for both Wills to be drafted)

Trust Will – starting at £400 + VAT but this depends upon the complexity of the trust needed. This can be discussed during your appointment.

• We check the validity of the will and if there is no will apply the rules of intestacy to identify the correct beneficiaries and identify the personal representatives who will be named on the grant.
• We calculate the value of the estate taking into account any relevant reliefs or exemptions, calculate the inheritance tax owed, ensure payment of it, and calculate any transfer of the Nil Rate Band and then complete the IHT 205 or IHT 400.
• We prepare and submit the grant of probate application.
• Once the grant is received, you then deal with the estate and call in any money due, pay any debts, take any corrective action if the value of the estate has changed and it affects any inheritance tax payments and distribute the estate.

Costs

Simple probate service to include IHT 205 - fixed fee of £1,500 + vat. This fee does not include any disbursements such as the application fee and cost of each additional copy.

Simple probate service to include IHT 400 - we would need to consider the size of the estate prior to providing a fixed fee quote, this will usually range from £2,000 + VAT to £2,500 + vat but would be confirmed with you during the initial appointment. This fee does not include any disbursements such as for the application fee and cost for each additional copy.

If you require our full probate service, we will essentially take over the entire estate and probate. We would:

• We check the validity of the will and if there is no will apply the rules of intestacy to identify the correct beneficiaries and identify the personal representatives who will be named on the grant.
• We place statutory adverts to establish where there are any claims against the estate.
• We identify and contact all financial institutions and organisations relevant to the estate and confirm the death to them by sending certified copies of the death certificate and obtain the information required in establishing the value of the estate. We also confirm that all correspondence should come to us.
• We calculate the value of the estate taking into account any relevant reliefs or exemptions, calculate the inheritance tax owed, ensure payment of it, and calculate any transfer of the Nil Rate Band and then complete the IHT 205 or IHT 400.
• Prepare and submit the grant of probate application.
• Once probate is granted, we will send certified copies of the same to the relevant institutions and call in all funds due to the estate.
• We then pay any liabilities due from the estate.
• Draft estate accounts will then be sent to executors for approval.
• We will conduct all correspondence with HMRC in relation to the tax forms.
• If any joint property needs transferring, or if property needs to be transferred into beneficiary names, or property needs to be sold, we can arrange for this, though this will incur additional fees.
• We will then finalise the estate accounts and take any corrective action needed in relation to the inheritance tax calculation.
• We can then either transfer the finalised estate to the executors to distribute or we can distribute the estate as per the wills or rules of intestacy.

The specifics of what is required will be discussed at the initial appointment.

Costs

The cost will usually be a fixed between 2%-3% plus VAT of the gross value of an estate.

If this option is not appropriate due to the estate not being overly complex or time consuming, then we can offer alternative fixed prices but these are estate specific and usually start at £3,000 + VAT.

The above do not include any disbursements such as the application fee and cost for each additional copy, advertising, property transfer or property sale costs. Disbursements will be discussed at the initial meeting and be confirmed in writing.

The death of a loved one is a terrible thing to experience, this can be made much harder for all concerned when disagreements in relation to the deceased persons estate or will arise. It is upsetting and challenging dealing with probate issues when also grieving the loss of a loved one. We endeavour to be as calm and approachable as possible and try to take away as much worry and stress in relation to your matters that we can so you can concentrate on looking after yourself and your family during this difficult time.

Common disputes that arise after the death of a loved one can include:

• Disputes over ambiguities in the will or disputes over the validity of the will.
• Disputes over people being left out of or excluded from the will.
• Uncertainty as to whether the estate is being administered correctly.

In certain circumstances, it may be possible to challenge a will, provided allegations or claims are supported by evidence. The courts are reluctant to interfere with wills however; in certain circumstances, it may be necessary to examine and potentially overturn a will such as where it can be shown the Will does not reflect the true intention of the deceased.

The four main reasons that can cause a will to be overturned include issues relating to whether the will was properly executed, issues in relation to whether the testator (the deceased) lacked mental capacity or was unduly influenced when the will was drafted and signed and, finally, because the will does not make adequate provision for a dependent of the testator.

In relation to claims brought against executors by beneficiaries, this is usually due to allegations that the executor is failing to keep proper accounts or mismanaging the deceased’s assets.

Should you wish to contest a will, bring, or defend a claim in relation to the management of the estate, we are happy to help you. Our aim is to use our knowledge of the law and procedure, along with our negotiating and advocacy skill to devise a tailored strategy to meet your needs and achieve the best possible outcome for you on your matter whilst resolving any disputes as quickly as possible.

Costs

In relation to contentious probate issues, it is best to have an initial meeting with a solicitor to discuss matters in order to decide upon the best course of action.

We offer an initial meeting up to 60 minutes for contentious probate matters for a fixed fee of £200 + VAT. Thereafter as per the costs of the solicitor that you instruct. This hourly rate, invoice structure, and anticipated costs will be discussed with you at the initial meeting.