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Wills – Trigger Points for All of Us

We all know that a Will is something we should all get around to but in reality it becomes one of those things that gets put way down the list of priorities unless something happens in your life to a family member, friend or colleague.

There are always trigger points in our customers’ lives, some are happy and some are obviously difficult. That is why we are here for them.

Some of the key trigger points to make you consider putting a Will in place, or updating an existing Will can include;

  • The birth of a child or grandchild
  • Marriage
  • Divorce
  • Moving house
  • Death of a family member
  • Setting up a business
  • Someone in your Will dies
  • You inherit money
  • The size of your estate increases

 

We passionately believe that everyone should have their own personal Will put in place to ensure that what you have worked so hard for, passes to the people you decide at the right time.

A Will is the only legal document that allows you to state clearly who should be appointed as Guardians for your children. If only for that reason, surely every parent with children under 16 years of age should put a Will in place.

The vast majority of people put off making a Will, believing that the people they would wish to inherit will automatically do so or because they think having a Will drawn up is too complicated or expensive.

The reality is that without a Will, even the most seemingly insignificant assets may go to the wrong person or to the State. At Portcullis, we provide Will drafting services that are cost effective and presented in plain English so that the entire process is easy and seamless for our customers.

If you do not have a Will

  • Minor children could be taken into care whilst Guardians are appointed
  • Your spouse or civil partner will not automatically inherit ALL of your estate
  • Common Law partners may not receive anything at all
  • People outside of your immediate family are unlikely to benefit
  • Lengthy disputes and delays are likely to prevent your beneficiaries from receiving the funds they need to settle your estate and benefit in the way you intend

 

Take control into your hands and contact us today.

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WHY DO I NEED A LASTING POWER OF ATTORNEY (LPA)?

There may come a time in your life when you are unable to manage your financial affairs or personal welfare, owing to some form of incapacity. To protect you and ensure the right decisions are made, you will need someone you trust to act on your behalf.

If you were to become incapacitated due to injury or illness, who do you TRUST to make important care and financial decisions on your behalf? Without a Lasting Power of Attorney, the decision is out of your hands.

Don’t leave this critical decision to others, who may or may not have your best interests at heart – protect yourself, your family and your hard-earned assets with a Lasting Power of Attorney today. We know of customers who needed an LPA but couldn’t have one because they left it too late. The process of then going to the Court of Protection to take over the affairs of their loved one then became expensive, involved months of waiting and was soul destroying for the families involved.

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Here are some the main questions our customers have asked over the years…

    1. What is a Lasting Power of Attorney?

A Lasting Power of Attorney gives someone you trust the legal authority to make decisions and manage your affairs on your behalf, if either you’re unable to in the future or you no longer wish to make decisions for yourself. There are two types: (a) property and financial affairs and (b) health and welfare. Anyone over 18 years old with mental capacity can make a Lasting Power of Attorney, appointing one or more attorneys.

    1. When should I create a Power of Attorney?

The best time is always right now, whilst you are fit and well. In order to create a Power of Attorney you will still need to have the capacity to make your own decisions. It is essential that you make the Power of Attorney while you are capable of making decisions about who to appoint as your attorneys and what powers you want to give to them. Many people now create a Power of Attorney well before they need it as it is impossible to create a Power of Attorney once you have lost capacity. You might think it is better to wait until later in life, or until a diagnosis of a medical condition, but your circumstances can change very quickly out of the blue. Having a Power of Attorney in place will protect both you and your loved ones.

    1. I already have a Will, can my executor handle my affairs?

A Will is totally different from a Power of Attorney. 
A Will states how your estate is distributed when you die. An executor does not have the right to manage your affairs during the course of your lifetime. If you want someone to handle your affairs whilst you’re still alive, you will need to appoint an attorney. 
If you’re an attorney, you can’t make a Will on behalf of your loved one.

      1. Can I still handle my own affairs if I appoint an attorney?

Yes of course. You should be encouraged and supported by your attorney to continue dealing with your affairs (or as much of them as you can manage) for as long as is possible. Powers of Attorney are typically created by people who are happy to continue handling their own affairs until they reach a point in the future when they are no longer capable of doing so. At this time, the Power of Attorney gives your chosen attorney the power to assist you in managing your affairs if you are unable, to manage your affairs on your behalf.

      1. What happens after I complete my Lasting power of Attorney?

In England and Wales, it isn’t possible to start using a Lasting Power of Attorney until it has been registered with the Office of the Public Guardian (OPG).  In England and Wales, it takes between 4 and 6 weeks to register an LPA, assuming there are no mistakes in the application. If there are any errors, the registration will have to be submitted again. That is why it is best to use Portcullis to do this for you.

      1. Are Power of Attorney documents legally binding documents?

Absolutely! A Power of Attorney is legally binding if it has been created correctly by the individual whilst they have the mental capacity to do so. Critically they must fully understand what they are doing at the time of making and registering the document.

      1. Can I ‘undo’ my Lasting Power of Attorney in the Future?

In England and Wales, an individual can end their Lasting Power of Attorney, even if it has been registered, at any time as long as they still have mental capacity. To do so, they will need to create a ‘deed of revocation’ and send it to the Court (OPG) so that they can cancel registration of the Lasting Power of Attorney.

      1. How will the bank know that I am now his/her attorney?

You will need to inform banks and other financial services providers that you have the Power of Attorney to act, and you will be asked to provide the relevant document as evidence. In England and Wales, this is the Court approved Power of Attorney document.

      1. I live in England or Wales and have an Enduring Power of Attorney (EPA), is this still valid?

In England and Wales, the old EPA documents were replaced by Lasting Powers of Attorney on 1 October 2007, but EPA’s that were signed and witnessed before this date can still be used. EPA’s must be registered with the Office of the Public Guardian at the onset of the donor losing mental capacity. EPAs only cover property and finances.

      1. Do I need both types of Lasting Power of Attorney?

In England and Wales, different types of Power of Attorney give your attorneys the right to look after your financial affairs and your health and welfare. To ensure you have attorneys looking out for you in both areas, it is important to have both types.

      1. Must all my Attorneys agree to a particular decision being made?

Only if the attorneys have been appointed jointly, rather than jointly and severally.

      1. What is the difference between appointing attorneys jointly and jointly and severally? Which is the best option?

Jointly means the attorneys must all agree to any decisions and every document must be signed by all attorneys. Jointly and severally means that any of the attorneys can make a decision and sign documents together or without the others. The big advantage of the latter is convenience and speed of action, but you must have total confidence in your attorneys to grant each the power to act alone.

      1. How is mental capacity determined?

All adults are legally assumed to have mental capacity until it is proved otherwise. If there are disputes, the Mental Capacity Act 2005 sets out clear principles.

      1. What gifts can the attorney make on behalf of the donor?

The attorney can buy gifts or give gifts of money on behalf of the donor, including donations to charities. The attorney must only make gifts to people who normally receive gifts from the person, on suitable occasions such as birthdays and weddings or to charities that normally receive donations from the person. All gifts must be relative and reasonable in relation to the size of the estate.

      1. What happens if one of the attorneys dies before the donor?

If the attorney dies before the Power of Attorney is being used, the donor will usually be able to create another Power of Attorney appointing a replacement attorney. If the death occurs after donor has lost mental capacity, and they only have one attorney, the Power of Attorney will become invalid. It is for this reason that a Replacement Attorney should be appointed.

      1. What is a Replacement Attorney and should I appoint one?

A replacement attorney steps in if the original attorney is no longer able to act on the donor’s behalf – in the event of their death, for example, or following a divorce. Appointing one can be a sensible precaution, but your replacement attorney should be as trusted a person as your original attorney.

      1. Is an attorney entitled to make a large gift from the donor’s assets?

No, though it may be possible to make an application to the courts to do so.

      1. Can the donor’s money be mixed with the attorney’s money or held in a joint account in the names of the donor and attorney?

The donor’s accounts must be kept separate to the attorney’s. But in some cases, they may have joint accounts – where a husband is acting for a wife or vice versa, for example. Providers of these accounts should be notified.

      1. How do I amend my Power of Attorney after it is signed and witnessed?

The exact procedure varies according to the type of Power of Attorney and where you live.

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ESTATE ADMINISTRATION AND HOW WE CAN HELP YOU AT A DISTRESSING TIME

If you need help now that someone close to you has passed away, WITH OR WITHOUT A WILL, we offer a cost-effective personal estate administration service at an agreed fixed fee, not a never ending hourly rate as with most solicitors or banks. Navigating your way through the system can be confusing, complicated and time consuming. Let our team at Portcullis Legals help you and take the worry and anxiety away at a very difficult time.

At Portcullis Legals, we provide a bespoke, caring and personalised service designed to relieve the stress and worry involved with settling your loved one’s affairs.

“Probate” is the process of proving a Will and everything that is involved in sorting out the assets and liabilities of someone when they die. Where there is a Will, then the executors are responsible for this, but if the person dies without a Will (i.e. intestate) then the law sets out who is able to apply to administer the estate.

Sometimes this process is straightforward and there are even some cases where a Grant of Probate is not needed, for instance where assets pass automatically to a surviving joint owner.

However, the administration of a deceased’s estate is a significant task for which the executors are personally liable.  It has many different aspects and there are a number of pitfalls, that the average person will not be aware of.

We understand how difficult this can be at a very distressing time for everyone involved and that is why at Portcullis Legals we provide a professional and understanding service.

We are here to help you

Estate administration can be a lengthy process but we can help you as much or as little as you wish. All you need to do is call us on 01752 401401 or email enquiries@portcullislegals.co.uk and we will be there to help you.

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TRUST PLANNING – What is a Trust?

Quite simply, a Trust is a box that you can place your assets into, in order to protect your estate or your intended beneficiaries, from the threats of probate costs, sideways disinheritance, divorce or bankruptcy of your beneficiaries, remarriage or inheritance tax.

Trust planning is a very specialised area of law and we have a team of professionals that are expert in this field. Be very careful to ensure that this is dealt with by specialists. This is a significant area within Portcullis and one of our main area’s of expertise.

A Trust has the ability to:

  • Prevent your direct bloodline (children and grandchildren) losing out in the event of your dying and your surviving partner remarrying. If you simply leave your estate to your partner and they remarry and subsequently die, it is common for the estate your partner inherited from you to pass to the family of the new partner. A Trust can stop this
  • Prevent an inheritance left to a child who is facing problems (divorce, bankruptcy) can be distributed to that child in such a way that it won’t be squandered or misused
  • Prevent the situation arising whereby a child with disabilities could lose benefits if they inherit from you through a Will. Inheriting via a Trust means that benefits are not affected
  • any assets that are held in a Trust can be distributed immediately – thereby removing the need, cost and time delays of probate

 

Trusts are far more than just a potentially tax efficient way of protecting and gifting assets for the next generation. They provide welcome protection for young children or vulnerable beneficiaries. We can help you set up and manage effective trust planning, providing you with peace of mind.

As a married couple (or civil partnership), what happens if one partner dies prematurely and the survivor remarries?

This is the most common question we are asked by customers of all ages! In short, if you have left everything to your partner in a Will or you jointly own the house or any other asset with them, the survivor receives what you leave them in a Will or the asset you jointly owned with them.

However what if you want to ensure your children from this relationship or indeed a previous relationship inherit your share of the house for example? If you have left it to your surviving partner and they then meet a new partner, how can you guarantee that your children will get your share? This is why you need to be talking to us about trusts planning.