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Making a will -why and how
Here are a few examples of situations that need careful drafting and advice.
People living together but not married:
the survivor is not automatically entitled to a share of the deceased’s estate even after many years of cohabitation. You need to make a will.
if there is no will the surviving spouse won’t always inherit the whole estate of their partner.
need to consider how your estate will be divided; maybe a life interest to your partner to keep a roof over his/her head and after that a gift of your share to your children from a previous marriage?
The potential situations that can arise are endless and at Legal Direction we ask the right questions to help prepare the will that answers your requirements in plain English for a pre agreed price
Why it's important to make a will
A will lays out exactly who is to benefit from your both your property and your possessions (known as your estate) after your death.
There are many good reasons to make a will:
Preparing your will
Whilst it is possible, and perfectly legal, to write a will by yourself, it is advisable to use a solicitor as there are certain legal formalities required that you need to follow in order to make sure that your will is valid. A solicitor can also offer legal advice for more complicated matters & can also advise you about how Inheritance Tax affects you.
A solicitor may be able to visit you in your own home, care home or hospital.
The cost of writing a will can vary between solicitors and will depend on how complicated your affairs may be and the experience of the solicitor.
As well as solicitors, voluntary organisations such as Citizens Advice Bureau and Age UK can also help with your will.
First of all, before you write your will or consult a solicitor, the best thing to do is think about what you want included in your will. Things you should consider are:
who is going to sort out your estate and carry out your wishes after your death - this person is called your executor.
An executor is the person responsible with passing on your estate. You can appoint an executor by naming them in your will. The courts can also appoint other people to be responsible for doing this job.
Leaving a gift to charity in your will
It might be that you want to leave a gift to a favourite charities once you have taken care of friends and family. Your solicitor can help you arrange this also.
What to include in your will
After you have made your will
Keep your will safe
Once you've made your will, it is important to keep it in a safe place. Make sure you tell your executor, close friend or relative where it is. If your will has been made by a solicitor, they will normally keep the original and send you a copy. You can ask for the original if you prefer to hold it yourself.
Keep your will up-to-date
Ideally you should review your will roughly every five years , or after any major change in your life - such as getting separated, married or divorced, having a child or moving house. Any change must be by 'codicil' (an addition, amendment or supplement to a will) or by making a new will.
Making a will is advisable for anyone over 18 and essential for anyone with dependents.
If you choose Legal Direction to prepare your will it will be a bespoke product tailored to your needs by an experienced solicitor with many years experience in the field. The secret of making a will for our clients is asking the right questions of the client to ensure that the potential pitfalls are avoided and the correct result is obtained.
Power of Attorney
An Enduring Power of Attorney is a legal document that allows someone you have chosen to make decisions about your property and financial affairs. The person you choose is called an 'attorney'.
An attorney can make decisions for you when you still have mental capacity, as well as when you lack capacity. For example, it may be easier for you if your attorney carries out tasks like paying your bills for you.
On October 1 2007, the Enduring Power of Attorney was replaced by Lasting Power of Attorney. A Lasting Power of Attorney, like an Enduring Power of Attorney, allows someone to make decisions for you if you are unable to do so.
An Enduring Power of Attorney that was made and signed before October 1 2007 can still be used.
A Lasting Power of Attorney can't be registered and used immediately and the amount of time you might have to wait can change.
The current waiting time to register a Lasting Power of Attorney is nine weeks.
The Office of the Public Guardian must check the application to make sure there are no problems. There is also a six-week period when people have a chance to object to the Lasting Power of Attorney.
An attorney can only use a Lasting Power of Attorney once it has been registered with the Office of the Public Guardian. A health and welfare Lasting Power of Attorney can only be used once the donor (the person needing help) is unable to make their own decisions.
A court or a medical professional will help in deciding if someone has lost the mental capacity to make decisions.
Different terms associated with probate
'Probate' is a term commonly used when talking about applying for the right to deal with a deceased person's affairs. It's sometimes called 'administering the estate'.
If the person who has died leaves a will
In this case one or more 'executors' may be named in the will to deal with the person's affairs after their death. The executor applies for a 'grant of probate' from a section of the court knows as the probate registry. The grant is a legal document which confirms that the executor has the authority to deal with the deceased person's assets (property, money and possessions). They can use it to show they have the right to access funds, sort out finances, and collect and share out the deceased person's assets as set out in the will.
If the person who has died didn't leave a will
If there is no will, a close relative of the deceased can apply to the probate registry to deal with the estate. In this case they apply for a 'grant of letters of administration'. If the grant is given, they are known as 'administrators' of the estate. Like the grant of probate, the grant of letters of administration is a legal document which confirms the administrator's authority to deal with the deceased person's assets.
In some cases, for example, where the person who benefits is a child, the law states that more than one person must act as the administrator.