Category: Wills and Probate

Online Wills – The Real Costs

Are you thinking of making your Will using an online Will writing service? If so, the likelihood is that the speed, low costs and simplicity of the online process are some of the reasons you are considering not using a solicitor. But what’s the catch?

Before using an online Will writing service you should consider the purpose of a Will; to provide you with peace of mind and certainty that your affairs will be handled in accordance with your wishes. Is it possible to have that feeling of security when writing your Will online?

One of the problems with using an online service is that you remove the human contact in the Will writing process which is vitally important; often just body language alone can indicate unease, confusion or concerns – all of which can be addressed at that time by an experienced solicitor. Personal circumstances and family setups can be complicated and the person preparing your Will should be made well aware of your situation.

It is also important to note that, unlike solicitors, Will writers are not regulated. This means that, if there is an error with your Will or it contains any ambiguity, your beneficiaries will have little recourse against the company who prepared the Will. Online Will writers do not have to follow a strict code of conduct or enforce best practices and they are not duty bound to act in your best interests.

Further, most online Will writing services require you to appoint their company as your Executors and Trustees and for this privilege they will charge your estate an inflated fixed fee and/or a value element, which is calculated on the size of your estate. Should your beneficiaries ask the Will writers to renounce their position as Executors and Trustees they often either refuse or will charge an exorbitant fee; one such company we spoke to would charge at least £7,000.00 just to renounce!

Below is a brief summary of what you can expect from an average online Will writing service vs the service you will receive from one of Aston Bond’s experienced solicitors:

Service	Online Will Writer	Aston Bond Solicitor
Face to face meeting	No	Yes – included in fixed fee
Inheritance Tax overview	No	Yes – included in fixed fee
Discussions about potential claims against your estate	No	Yes – included in fixed fee
Advice on how to limit the success of claims against your estate	No	Yes – included in fixed fee
Ability to choose your own Executors and Trustees	Sometimes – possibly with additional charges	Yes – included in fixed fee
Advice on suitability of Guardians for your children	No	Yes – included in fixed fee
Discussions about second marriages after the 1st death	No	Yes – included in fixed fee
Advice about the use of various appropriate Trust	No	Yes – included in fixed fee
A draft  Will for your approval	Sometimes	Yes – included in fixed fee
A detailed letter of advice to accompany your draft Will	No	Yes – included in fixed fee
As many amendments to your draft Will as you need	Sometimes – possibly with additional charges	Yes – included in fixed fee
Face to face meeting to sign  your Will correctly	No	Yes – included in fixed fee
Secure storage of your original Will	Sometimes – possibly with additional charges	Yes – included in fixed fee

The truth is that writing Wills, even straightforward Wills, is not a simple process and nor should it be. A Will is one of the most important documents you will ever make and it should be handled with the respect and care it deserves. Whilst you won’t be here to witness the problems a poorly drafted or ill-advised Will can cause, your loved ones will. So, before you decide to make your Will online consider whether it is going to provide you with the certainty and peace of mind you need.

If you would like to book a free initial consultation to discuss your Will with one of our specialist solicitors please call us on 01753 486 777.

Acting as an Attorney for someone’s financial and property affairs is a great deal of responsibility. Before agreeing to act, you should consider whether you are prepared to undertake the often time consuming task and ensure you have a full understanding of what you can and can’t do as an Attorney.

Consider How You Are Appointed

Firstly, you should ascertain whether you are the sole Attorney, a joint Attorney or a Replacement Attorney. If you are a joint Attorney, you should understand whether you are appointed to act Jointly or Jointly and Severally with your fellow Attorneys.

When Attorneys are appointed to act Jointly, all named Attorneys must agree before a decision can be made on the Donor’s behalf. You cannot make any decisions on your own. If you do make decisions on your own and this is made known to the Office of the Public Guardian, they could revoke your powers as an Attorney.  

When appointed Joint and Severally, Attorneys can act together or separately. This means any one Attorney could make decisions on the Donor’s behalf without consulting the others. You should still have regard to the Donor’s wishes and, if the Donor wanted you to, you should consider acting unanimously where appropriate. If disputes arise between Attorneys the Office of the Public Guardian will consider what is in the best interests of the Donor and they could revoke your powers as an Attorney.

If you are appointed as a Replacement Attorney you can only act when the first named Attorneys are unable to act on a permanent basis, for example, they have passed away or are suffering a mental impairment that will never improve. You cannot act where the first named Attorneys are unable to act on a temporary basis, for example, they are away on holiday or suffering a momentary loss of capacity.

What Does The Finance & Property LPA Allow You To Do?

This LPA allows you to deal with the Donor’s financial affairs including:

1. The buying and selling of property;
2. Operating bank accounts;
3. Dealing with tax affairs;
4. Paying bills on the Donor’ behalf; and
5. Claiming benefits.

Who Can Act as an Attorney?

You must:

1. Be over the age of 18;
2. Have mental capacity to make decisions on the Donor’s behalf; and
3. Not have been made bankrupt.

Mental Capacity Act 2005 and How it Applies to You as an Attorney

You are obliged to act in the Donor’s best interests at all times, to consult any guidance that the Donor gave in the documents and you must follow the general law.  You will be obliged to follow the provisions of the Mental Capacity Act 2005 in particular and encourage the Donor to make decisions for themselves far as they are able. You also have the following duties:

1. not to take advantage of the position of the Attorney;
2. not to delegate unless authorised to do so;
3. to act in good faith;
4. to treat Donor matters as confidential;
5. to comply with directions of the Court of Protection;
6. not to disclaim without notifying the Donor, the other Attorneys, and the Office of the Public Guardian;
7. to comply with the relevant guidance;
8. keep accounts; and
9. keep the Donor’s money and property separate from their own.

It is important you keep good records because the Office of the Public perform random spot checks but also because the records can be used as evidence should anyone try to claim you were acting improperly.  

Generally, Attorneys tend to follow the duties listed above in points 1 to 7 without issue, however, we often see Attorneys who make the mistake of not keeping the Donor’s money and property separate from their own. This could be that the Attorney keeps their name as a joint account holder on a bank account, or transfers the Donor’s property into their own names. If you fail to keep the Donor’s money and property separate from your own then the Office of the Public Guardian will likely revoke your powers as an Attorney and may investigate the transactions for fraud.

Abuse of Your Position

You can be reported to the Office of the Public Guardian by the Donor, fellow Attorneys, other family members or concerned members of the public. If you are reported to the Office of the Public Guardian it is likely they will launch an “initial investigation” to see whether the concerns raised have any merit. You can often prevent a full investigation by presenting proper accounts and receipts that show you have been acting appropriately.

If the Office of the Public Guardian have concerns, the will launch a full investigation. They could suspend or limit your powers as an Attorney until such time as they have satisfied their queries. If the Office of the Public Guardian finds against you, your powers could be revoked and, depending on the severity of the matter, you could face criminal charges. Sadly, there are many cases of Attorneys who have abused their position and, as a result, have received lengthy prison sentences.

The Donor’s Will

Please note, the LPA does not grant you the right to see or handle the Donor‘s Will, unless there is a specific instruction in the LPAs for you to do so. If the Donor loses mental capacity, the Will cannot be disclosed without a Court order or until such time as the Donor passes away, in which case the Executors of the Will have rights to see and handle the Will.

If You Are Unsure How to Act

If, whilst performing your duties as an Attorney, you are ever unsure of your responsibilities or how you should act it is important you seek legal advice. If you are deemed to act improperly as an Attorney, even if you were acting in good faith, the Office of the Public Guardian have the power to revoke your appointment entirely.   

If you would like to discuss your appointment as an Attorney in more details please contact the Private Client Team on 01753 486777.

The need to regularly review ones Will is paramount. Circumstances change and life takes many unexpected twists and turns. How one expects their estate to be divided is likely to differ as the years pass by, especially if you meet new people later in life who you may feel are more deserving of inheritance.

This was the case for Mr Redmond, who met his live-in partner years after having his Will was drawn up, which left everything he owned to his two daughters, Lynn Leberknight and Jane Redmond. When Mr Redmond passed away, Mrs Taylor was ordered to leave the home she had once shared with Mr Redmond by his daughter Mrs Leberknight. As Mr Redmond had not made any provisions for his life partner in his Will, she was legally left with nothing.

Whilst Mrs Taylor had little rights under the strict letter of the law, Courts are able to apply the principles of “equity” to reach a more fair and just outcome. A notable example is the maxim ‘equity looks to the intention rather than the form’ meaning that equity will not allow a party to rely on the strict wording of the law in a way that would be unconscionable.

The principles of equity therefore prove crucial in a case such as Mr Redmond’s. Mrs Taylor made a claim under the rules of equity against Mr Redmond’s estate. This claim was successful, with judge Stephen Hockman QC finding it ‘improbable that in his deteriorating state of health, Mr Redmond would choose to end a relationship with a woman whom he clearly loved’. The judge followed this by confirming ‘equity regards as done that which ought to be done’. This was found despite claims from the daughters that Mr Redmond and Mrs Taylor’s relationship was an ‘affair’ and that he was ‘not the marrying type’.

While Mrs Taylor’s claim was successful and she was subsequently awarded £325,000.00 out of Mr Redmond’s £1,000,000.00 estate, thousands of pounds in Court and solicitor fees were incurred as well as relationships breaking down. The gruelling nature of this estate battle could have been avoided had he simply updated his Will to provide for his partner.  

Do you think your Will might not reflect your current wishes? Call us today to discuss your position.

01753 486 777

When Mr Richard Willis discovered that he would be receiving less inheritance from his mother’s Estate than his brother’s, he decided to take matters into his own hands. His mother, Audrey, was fearful that Mr Willis would waste his inheritance on frivolous items and so she decided to leave the bulk of her Estate to her other two sons, whom she believed would make better use of the funds.

Mr Willis discovered he would not inherit as much as he had expected when his father passed away 2007. He decided to take out a Power of Attorney for Audrey and exploited his position as an Attorney to syphon large sums of money from her Estate. In the space of just two months, Mr Willis stole £375,000.00 in cash withdrawals from his mother’s accounts. Not satisfied with this, he later sold his mother’s home and moved her into a care facility, using only £29,000.00 from the sale proceeds towards her care fees. He failed to properly care for his mother and when she passed away she owned just two sets of clothes.

Judge Mayo believes the total amount taken from Audrey by her son to be in excess of £713,000.00. Judge Mayo went on to say that as money became available to Mr Willis it “burned a hole in his pocket”, as he used the funds to purchase antiques, guns, cars and wine. Mr Willis also bought and furnished a cottage for himself using the money he stole.

Mr Willis was found guilty of four counts of fraud and sentenced to 6 years imprisonment in 2015 but he was recently released on licence. Northamptonshire police have since used POCA legislation to get an order against Mr Willis who must now pay back over £566,000.00 to his mother’s Estate, which will then be divided in accordance with the terms of her Will. If Mr Willis does not pay the sums back to the Estate within three months of the POCA order then he will return to prison for a further 40 months.

Mr Willis’ greed resulted in him: spending four years in prison; returning the funds he stole; and no doubt has caused family frictions. It just goes to show that crime really doesn’t pay. 

Top 10 Reasons to Write a Will

Have you ever asked yourself, do I really need a Will? If so, you’ve come to the right place. Below we have listed our Top 10 reasons to write a Will to help you decide. It is estimated 7 out of 10 people do not have a Will in place yet they can relate to at least one of our Top 10 reasons to write a will.

1. Appoint Guardians

If you have children under the age of 18 it is vitally important you write a Will and appoint Guardians of your choice. Without the appointment of Guardians, a Court will decide who is best placed to care for your children if there is no surviving adult with parental responsibility.

2. Avoid Arguments

Disputes often arise in the wake of a loved one’s death. A Will is a clear and binding expression of your wishes. We also keep detailed attendance notes of all discussions surrounding your Wills which can be used as evidence in Court as to the reasons behind your choices.

3. Protect your Estate for your Children

Whether you are concerned about your spouse remarrying in the future or your estate being depleted by care fees, the appropriate use of Trusts in your Wills can help protect as much of your estate as possible for your children.

4. Living with Partner

If you live with your partner but are not married or in a Civil Partnership you should consider what would happen to your home in the event of your death. Your Will can help you make adequate provisions for your partner to help reduce the impact you passing will have on them financially.

5. Specific Gifts

If you own anything of sentimental value that you would want to pass to a specific person you should write your Will and include details of these gifts. If you are unsure what to give to whom, you may wish to consider leaving your personal effects to your Executors to distribute in accordance with any of your wishes which come to their attention.

6. Gifts to Charity

You can include gifts to charities in your Will. All gifts to charity are Inheritance Tax exempt and, if you leave enough of your estate to charity, the remainder of your estate could benefit from a reduced rate of Inheritance Tax (36% instead of 40%).

7. Tax Planning

Part of the process of writing your Will involves discussing your assets and liabilities. We help you to understand your current tax position and highlight ways you might be able to reduce any Inheritance Tax liability you may have.

8. Avoid Intestacy

It is a common misconception that if a married person passes away their entire estate passes to the surviving spouse. The only way to ensure your estate passes in accordance with your wishes is to write a Will.

9. You want to Exclude a Person

If you do not want a particular person to inherit from your estate then you should write a Will. There is no way to prevent a person making a claim against your estate, but our specialist knowledge and practical advice can help prevent the chances of that person’s claim being successful.

10. Skipping a Generation

If your children are financially secure and you instead want to leave your estate to your grandchildren to help them, for example, with university fees or with buying a house, then it is imperative you write a Will.

    Jade Gani

Writing a Will for your New Year’s Resolution…

Happy New Year one and all!  We hope you enjoyed the festivities and that you are now focused on the year ahead and the New Year resolutions are underway!

2016 was a year to remember for many people around the world:  The UK voted to leave the European Union, Britain smashed the Rio Olympics and brought home 67 medals (27 golds!), Donald Trump won the Presidential Election, the Queen turned 90 and much more.

One thing that 2016 will also be remembered for, is the shocking amount of celebrity deaths that took place; some great people and legends that will be truly missed, including David Bowie, Alan Rickman, Sir Terry Wogan, Paul Daniels, Ronnie Corbett, David Gest, Prince, Muhammad Ali, Pete Burns, George Michael, Andrew Sachs, Liz Smith, Carrie Fisher, Debbie Reynolds and sadly many more.  Our thoughts go out to all their loved ones.

When we hear about so many deaths, we tend to reflect.  We cannot avoid death, but when it comes it is helpful if we can be as prepared as possible.  One thing that we can do to help us prepare is put a Will in place. This will ensure that when we are gone and no longer have a voice, that our wishes are carried out and our loved ones are well looked after.  Not having a Will can create uncertainty and confusion for our loved ones, which is completely avoidable. So make a resolution to get your Will done this year.

Should you wish to discuss your situation and would like to put a Will in place, or simply wish to review your Will, then we shall be pleased to assist. Please do not hesitate to contact Jenna Dunstall, the head of our Wills and Probate Department, to arrange a convenient appointment.

Acting as someone’s Executor is not a job to be taken lightly.  The first duty that falls on an Executor is to arrange the deceased’s funeral.  When someone dies, the institutions where the deceased held assets must be notified as soon as reasonably possible and all accounts will be frozen, it can therefore at times be difficult to obtain the deceased’s money to pay for things such as ongoing mortgage payments, house insurance etc.  Sometimes the Executor must pay the funeral costs personally when there is not money readily available in the estate, which can put financial pressure on the Executor.  Other liabilities may also arise that must be paid right away which may again fall on the Executor to settle. Continue reading “The Pitfalls of Being an Executor”

Why should you make a Will?

If you die without a Will, UK Law dictates who should inherit your estate (commonly known as the Intestacy Rules).  It may be that you wouldn’t have wanted your estate to be distributed in such a way and so it is important to have a Will in place to ensure that your estate passes to the people that you choose. Continue reading “Your Guide to Making a Will”