Anyone 18 or over and of sound mind can and should make a will. You must understand that you are making a will and that you are making the particular will you are signing.

If you die without leaving a will (known as dying intestate), there can be a number of consequences.

1.  Statutory division of your estate

Changes to the statutory division of estates where there is no will came into effect on 1^st October 2014. The following deals with these new rules.

(a)  Married/Civil Partner, no children.

If you die without children your husband, wife or civil partner inherits all of your estate irrespective of the value of the estate

(b)  Married/Civil Partner, with children

If you die leaving children (including adopted children), your husband, wife or civil partner inherits the first £250,000 and half of the remainder of the estate.  The other half goes to your children.

(c)  Unmarried couple, no children

The unmarried survivor receives nothing, irrespective of the length of time the couple have been together. Instead their estate passes to the deceased’s blood relatives in a prescribed order:

• Parents;
• Brother or sisters or their descendants;
• Half siblings or their descendants;
• Grandparents;
• Uncles and/or aunts or their descendants;
• Half uncles and/or aunts or their descendants; and finally
  
• Whole estate passes to the Crown, bona vacantia.

(d)  Unmarried couple, with children

Again the partner receives nothing, but the child/children of the deceased parent receives the entire estate.

(e)  Unmarried, no children, no relationship

Your estate will be divided between your blood relatives as above.

2.  Claim against your estate

As you can imagine, dying without a will can lead to some people feeling very disappointed, which leads to disputes between relatives and loved one.

(a)  Inheritance (Provision For Family And Dependents) Act 1975

If you die without making proper provision in your will or as a result of dying without making a will then your close relatives and dependents (for instance your unmarried partner) may ask the court to distribute your estate to produce a fairer result.

The court has very wide discretion as to what your relatives or dependents will receive and will take into account, amongst other things:

• financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
• the size and nature of your net estate; and
  
• the obligations and responsibilities which you had towards any applicant for an order.

A judge might make any one or more of the following orders:

• an order for the making to the applicant out of the net estate of the deceased of such periodical payments and for such term as may be specified in the order;
• an order for the payment to the applicant out of that estate of a lump sum of such amount as may be so specified;
• an order for the transfer to the applicant of such property comprised in that estate as may be so specified;
• an order for the settlement for the benefit of the applicant of such property comprised in that estate as may be so specified;
• an order for the acquisition out of property comprised in that estate of such property as may be so specified and for the transfer of the property so acquired to the applicant or for the settlement thereof for his benefit; or
  
• an order varying any ante-nuptial or post-nuptial settlement (including such a settlement made by will) made on the parties to a marriage to which the deceased was one of the parties, the variation being for the benefit of the surviving party to that marriage, or any child of that marriage, or any person who was treated by the deceased as a child of the family in relation to that marriage.

An important provision within the Act is that the costs of litigation are met from your estate. We have seen relatives fight over estates with parties so entrenched that when the court has made an order, there is little after the payment of legal fees. Do you really want that to happen?

(b)  Proprietary Estoppel

If you promise a thing, and that person relies on that promise to their detriment then the courts will right an unconscionable wrong.   The person wronged will make a claim of proprietary estoppel. This applies as much to intestacy as it does the distribution of your estate under the terms of a will.

Since your executors will be responsible for administering your estate, dealing with your tax affairs up to the date of your death, the payment of inheritance tax, if any, and your debts, distributing your estate according to your will, you should think carefully about who should be your executor.  You might consider:

• their age – an executor has to be 18 or over at the date of your death.  You should not, though, consider appointing persons who may be too old, frail or likely to die before you;
• their experience – if you have a complex estate, with say business assets, agricultural property or an interest in a trust then you might want to appoint professional trustees, such as a solicitor or trust corporation; and
• member(s) of your family or close friends – if you believe there may be a dispute over how your estate is to pass to others you should probably consider professional executors: that way there should be less confrontation.  Remember your executors must carry out the terms of your will even if they do not agree to its terms.  Although you may appoint someone an executor, they do not have to accept the appointment.

You can have any number of executors, but:

• the more you have the more unweildy it becomes;
• only the first four named may take out the Grant of Probate or Letters of Administration with Will Annexed.  If Adam, Ben, Charles, David and Edward are named executors then Edward cannot apply for the Grant or Letters of Administration, but if Adam renounces Probate (i.e. does not wish to be an executor) then Edward could be an executor;
• you can have groups of executors.  So for instance, you could have Adam and Ben your business executors (as they have worked with you or have particular business skills) and Charles, David and Edward your executors of everything that is not your business.

To reduce your estate during your lifetime solely for the purpose of avoiding future care costs may amount to a fraud.  Where there is evidence of such planning local authorities are known to have the individual declared bankrupt and for the Trustee in Bankruptcy to unravel the planning.

We are not advocating care costs avoidance, but there is little point in giving a loved one property in the certain knowledge that the property you give under the terms of your will can be used to pay for care fees.  We recommend creating a life interest so that the trust property cannot be considered by the local authority.  This is particularly the case where estates are small.

You could give your future husband or wife a life interest in some or all of your estate so that s/he may enjoy the use of your property and receive the income from cash or investments.  On his or her death your children will receive your estate.

You should:

• obtain a medical certificate from the hopistal or GP  – you cannot register a death without one;
• register the death – registration must be done within 5 days in England and Wales (8 in Scotland) with the local registry office; and
• arrange for burial or cremation.

You do not.  If you decide to deal with the funeral arrangements yourself, buy a coffin and/or, perhaps, have your loved one buried on your own land, please feel free to contact us.  We have been through the process and used a local funeral director for just a few elements – they were understanding and worked with us sympathetically. 

We found the handbook published by the Natural Death Centre full of useful information and guidance.

You should locate the will, if any, made by the person who has died.  You should be careful not to do things such as sell the deceased’s assets, give clothes to charity etc without knowing that you were appointed under the terms of the deceased’s will or have a statutory entitlement to administer the deceased estate where there is no will or those named in the will either do not wish to take up their appointment or have died before the deceased.

Once you know that you have a responsibility to deal with the deceased’s estate, you should notify if relevant:

• banks, building societies and financial institutions;
• life assurance companies;
• household insurance company, if the property is to be left empty;
• the Department of Work and Pensions; and
• HM Revenue and Customs.

You may consider appointing a solicitor to deal with the estate.  You may already have a family solicitor who specialises in “Probate”.  The highest professional standard for the adminstration of estates and trusts is full STEP qualification.  Full members have the right to have the designation TEP after their name.  Julian Palmer is a lecturer and examiner for STEP so we can point you in the right direction should you not know a solicitor.

‘Probate’ is the term commonly used whenever a person(s) (known as personal representatives or just PRs) applies to court to deal with your affairs and obtain a ‘grant of representation’.   The most common grants are:

• Grant of Probate – this proves that the will is valid and the executor(s) has the right to deal with your estate;
• Grant of Letters of Administration – where you have left no will, the PRs (most likely close family members) apply for administration; and
• Grant of Letters of Administration (with will annexed) – where there is a will, but there is no provision for dealing with the residue or the intended beneficiary/ies died before you, then this grant is taken out.  It will also be taken out if all of the executors named in the will have died, are not capable (because of mental incapacity) or renounce probate (don’t want to be an executor) and alternative PRs deal with the your estate.

More uncommon grants are:

• Grant of Double Probate – if an executor does not take the original grant, but reserves powers to do so at a later date, when s/he exercises such power, then this will be the grant that will be awarded; and
• Grant de bonis non adminstratis – a simple example is where the last executor dealing with your estate dies (without s/he having made a will) before s/he has completed the administration of all of your estate.  His/her PRs will take out this type of grant to deal with the remaining matters of your estate.

Depending upon the complexity of your estate, your PRs may not need the assistance of a solicitor when applying for one of the common grants of representation and the Probate Registry has a number of guides and application packs to help.

A Lasting Power of Attorney (LPA) is a legal document that lets you choose one or more people (or a trust company) to act as your attorney to deal with your affairs either immediately (in connection with your property and financial matters) or when you lose mental capacity.

There are two types of LPA that deal with your:

• Property and financial affairs
• Health and welfare

You can choose to have either or both.  You can have more than one LPA dealing with your property and financial affairs – for instance one to deal with your business and another dealing with everything but your business.  You can have only one health and welfare LPA.

You can choose to have different attorneys or the same attorneys for either type of LPA.

Each type of LPA requires the completion of different forms and requires a separate application for registration.

You can make an LPA provided that you are 18 or over and you understand that you are making an LPA and the effects of making such an LPA.

An undischarged bankrupt cannot make a property and financial affairs LPA but can make a health and welfare LPA.

Any one aged 18 or over can be your attorney – but an undischarged bankrupt cannot act as your attorney of a property and financial affairs LPA.

Since you are asking your attorney(s) to deal with your affairs you should consider family, friends or professionals who have the best skills to deal with either your property and finances or your healthcare or both.

If appointing more than one attorney, you should think about whether or not your attorneys are going to have strong opposing views about your affairs.  If they are, you should consider whether it would be better not to appoint them or have an additional attorney so that effective decisions can be made on your behalf.

You can have any number of attorneys, but the more that you have the harder it may be to get everyone to agree what to do for you.   You can appoint your attorneys to act:

• joint – which means that in every case your attorneys must always act together;
• jointly and severally – which means that your attorneys may act together, but may also act on their own; or
• jointly in respect of some things and severally for others – examples might be that a joint decision must be made by your attorneys if they think it is in your interest to sell your home, but to act severally on other matters.  “Severally” just means individually.

• Your attorneys must assume that you can make your own decisions unless they establish that you cannot do so.
• Your attorneys must help you to make as many of your own decisions as you can. They cannot treat you as unable to make the decision in question unless all practicable steps to help you to do so have been made without success.
• Your attorneys must not treat you as unable to make the decision in question simply because you make an unwise decision.
• Your attorneys must make decisions and act in your best interests when you are unable to make the decision in question.
• Before your attorneys make the decision in question or act for you, they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedom but still achieves the purpose.

Taking all of the relevant circumstances into account – your ability to look after yourself, the availability of family and friends to help you with day-to-day living, available home healthcare etc – your health and welfare attorneys could decide that you move from your home into residential care.  They could not sell your house, but your property and finance attorneys could.  If both sets of attorneys are the same then they can sell your house and put you in residential care.

Yes you can and we will help you consider other restrictions and guidance for your attorney(s).

• Can the person understand the decision that they need to make – whether about money or their health?
• Can the person understand the scope of the decision and impact it will have on them?
• If the person cannot talk, can you communicate with him/her through drawings or touch (a squeeze of a hand) and does s/he understand these alternative methods of communication?

If the answer is ‘yes’ to all of these questions then it is likely that the person has mental capacity.  You can find out more by downloading The Mental Capacity Act Code of Practice here.

Once you have established that the donor (the person who appointed you attorney) has lost his/her mental capacity, you must act in their best interests, taking into account all relevant circumstances.

What this means in practical terms is that you must:

• consider whether it is likely that the person will at some time have capacity in relation to the matter in question, and, if it appears likely that he will, when that is likely to be;
• so far as reasonably practicable, permit and encourage the person to participate, or to improve his/her ability to participate, as fully as possible in any act done for him/her and any decision affecting him/her;
• where the determination relates to life-sustaining treatment, not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his/her death;
• consider, so far as is reasonably ascertainable:
  • the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him/her when s/he had capacity);
  • the beliefs and values that would be likely to influence his/her decision if s/he had capacity; and
  • the other factors that s/he would be likely to consider if s/he were able to do so;
• take into account, if it is practicable and appropriate to consult them, the views of:
  • anyone named by the person in the LPA as someone to be consulted on the matter in question or on matters of that kind;
  • anyone engaged in caring for the person or interested in his/her welfare;
  • your co-attorneys or attorneys of other LPAs which you are not a party to; and
  • any deputy appointed for the person by the court.

Where a person lacks mental capacity, whether through a disease, trauma or learning difficulty and there is no power of attorney in place – either a Lasting Power of Attorney (or its forerunner Enduring Power of Attorney), then it will be a matter of making an application to the Court of Protection to become that person’s deputy.

In your case, as you are the son or daughter, then you can apply to become a deputy but you will have to notify your mother and her/your close family members about your application.  Your mother and relatives may object to the appointment.

More details can be found here.

Where you have concerns that the attorney(s) are not acting in the best interests of the donor, you should contact the Compliance Unit at the Office of the Public Guardian (OPG) (on 0300 456 0300).  The Unit will investigate your concerns and where necessary ask the police to intervene.  More usually though, the Unit will seek to work with the attorney(s) and offer guidance, seek information from the attorney(s) and then determine if it needs the Court of Protection to intervene.  In such circumstances where the donor lacks the mental capacity to revoke his or her LPA, the Court may do so on their behalf.