Frequently Asked Questions:Probate
If there is no Will then the "Intestacy Rules" will apply and these could have the effect of leaving your property and possessions to people whom you do not wish to benefit or, at least, not in the proportions in which you would wish them to benefit. It may also be necessary to trace next of kin and this could be costly for your estate. In the event of intestacy the law and not you will determine who will administer and deal with your estate.
On the assumption that your requirements are relatively straightforward and no tax planning is required, Hatten Wyatt currently charges £90 plus VAT for an individual Will and £150 plus VAT for husband and wife/partner "mirror image" Wills. In respect of more complicated Wills and tax planning matters, generally speaking these would be charged according to time spent on the matter. In those circumstances we would discuss with you, your requirements and give you an indication of the costs involved in carrying out your instructions.
It is possible to pay Inheritance Tax when you make a gift during your lifetime, however, it is much more common and more likely to be payable on your death. The 2005 budget set out the threshold for the next 3 Tax years. If the value of your estate exceeds the sum of: £263,000 in the 2004/2005 tax year; £275,000 in the 2005/2006 tax year; £285,000 in the 2006/2007 tax year and £300,000 in the 2007/2008 tax year Inheritance Tax is payable on the balance over that amount at 40%. Whilst Inheritance Tax is payable over these amounts, there are some exemptions for certain assets, e.g. some business assets, currently have 100% or 50% relief and some beneficiaries, e.g. spouses and charities, are exempt from Inheritance Tax.
It must noted that under current law Living Wills have no legal effect, and no precedent exists to enforce a Living Will. Notwithstanding this "Living Wills" (sometimes called "Advance Directives") are a means by which you can, in advance, set out your wishes as to your medical treatment. This can be particularly important to cover the position where, for example, you maybe being kept alive on a life support system for prolonged period of time. In these circumstances the Living Will can be referred to by your doctors, whilst it has no legal effect, your doctors must act in accordance with the ethics of their own profession.
A Power of Attorney is a document by which a person appoints another person or other persons to carry out acts on their behalf, for instance when a person is going abroad. A Power of Attorney can relate to specific matters or property, or can give general authority to act, we can help you determine which would be best in your personal circumstances. It should be noted that if the person granting the Power of Attorney loses his or her mental capacity, then the Power of Attorney is automatically revoke, unless the Power of Attorney is an "Enduring Power of Attorney". An Enduring Power of Attorney is a Power of Attorney which is not revoked by the donor's subsequent mental incapacity, provided that the Attorney's appointed under the document register the Enduring Power of Attorney at the Court of Protection if they have reason to believe that the donor has lost or is losing their mental capacity.
An Enduring Power of Attorney can give a general authority to act or be restricted to particular matters or property. More importantly it can also be expressed not to take effect unless and until the Attorneys have reason to believe that the donor has lost or is losing their mental capacity.
If a person loses their mental capacity without having executed an Enduring Power of Attorney, and if they have matters or property to be dealt with, it would be necessary for someone (usually a close relative or a solicitor) to apply to the Court of Protection to become a Receiver for that person and this is a relatively cumbersome and expensive procedure.