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What Are The Different Types Of Will?

What Are The Different Types Of Will?

30th June 2021

If the world going through a pandemic taught us anything, it is that tomorrow is never assured. No matter who we are or where we come from, we all want our legacy to be passed down, regardless of how big or small. 

A Will lets you decide what happens to your finances, property and possessions when you pass and gives you the peace of mind that those decisions are respected and adhered to.

Talking about death is still a taboo subject for many, but knowing how to draft a Will and making sure it is validis critically important regardless of how uncomfortable it may be to consider our own mortality. 

Choosing a solicitor and ensuring your Will is drafted by an expert is an important way you can guarantee your family, spouse and  even pets are looked after when you pass away.. 

This article will help you understand the most common types of Wills and how each works, so when it’s time for you to write one, you have the confidence and understanding that you are handling your estate properly.

Types Of Wills

Single Will

A single Will, aptly named, is the most common, as it is suitable for any person that wants to outline their wishes and how they want their assets distributed when they pass away. Single Wills are generally for those who have uncomplicated circumstances and estates.  

They can be used by single or divorced individuals.  Single Wills are also useful if you are married and have children from a previous relationship because this will help divide your estate between your current family, your children from both relationships and your former spouse.  A trust may be needed if there are special circumstances to consider for your children/family, more details below. .

Will trusts

There are many different types of Will trusts and they can be made for many different reasons. A trust can be made to benefit a child,  spouse or a person with special needs. 

Will trusts should be considered if you have children from a different marriage and you have remarried or are cohabiting with a new partner. 

Will trusts are not always straightforward but offer protections that other types of Wills do not. You may not know if a Will trust is the right type of Will for you so it is important to take legal advice from an experienced solicitor who can help with all the options. 

Mirror  Wills

Mirror  Wills  are normally used by married couples.  They usually appoint each other as Executors and give each other their estates and name their children if they have any as common beneficiaries.  Mirror Wills are normally straightforward, but you should always seek legal advice to ensure you consider all the options to protect your family when you pass.  

Regardless of which option is best for your needs, it is important that you create a legally binding Will for the sake of your loved ones and your peace of mind. 

Drafting a Will all on your own can be difficult which is why it is always recommended that you consult a solicitor to ensure that it reflects your current circumstances. 

Need help writing your Will?

Visiting a solicitor to draft a Will should be an easy and warm experience. At Elizabeth Middleton Solicitors, you can be assured to get that kind of treatment as soon as you walk through the door. Your wishes will be listened to as we give our expert advice during your time with us.

Elizabeth Middleton Solicitors are at the ready with an experienced legal team ready to assist you. Contact us for more information about writing your Will, as well as your other legal needs for Probate, Lasting Powers of Attorney, Equity Release, and Settlement Agreements.

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Elizabeth Middleton Solicitors

At What Point In My Life Should I Write A Will?

At What Point In My Life Should I Write A Will?

10th June 2021

A Will helps you divide your estate and other assets amongst whoever you choose when you pass away. There are a few factors you will want to consider when instructing a STEP qualified Solicitor to draft a Will. 

In this article, we will go over some of the details that will help you better understand when to do so. It is an important step in anyone’s life when they choose to plan for their estate and their family’s future — and ensuring that it is done when one is still mentally capable is critical.

Requirements For Making A Will

In order for your Will to be valid, you must make sure it meets the following criteria:

  • The person who is writing the Will must be at least 18 years old.
  • The Will instructions must be given without any pressure by anyone else.
  • You need to be of sound mind, which means that you must understand that you are making a Will and  that it will take effect on your death 
  • Your Will must be signed by the person making the will and two witnesses.
  • The two witnesses must also sign the Will in the presence of the person drafting the Will after that person has signed it.
  • As soon as the Will is signed and witnessed, it is valid.

Importance Of Having A Will

A Will isn’t just so you can divide up your material wealth when you die  —  it’s a way for you to have the peace of mind that your wishes are carried out on your death. No matter your age, unexpected and unfortunate events can occur, and having a Will can save you and your family time, stress and struggle in an already difficult time. 

Young people commonly believe they don’t need a Will because they are too young and have few possessions, however, what determines whether a person requires a Will is whether they have property or their particular family circumstances. 

Major life events should always trigger a new Will or an Update

A Will is especially important for those with considerable wealth or assets, those who are recently married or divorced, have had their own children or gained stepchildren, or any combination of major life events. For example if you have remarried, unless you change your Will in favour of your new spouse, your previous spouse could be the main beneficiary.

If you die without a Will, which is known as dying ‘intestate’,  your assets become much more difficult to distribute which may lead to family disputes.

Other important ways a Will can help 

Here is a list of some of the other ways a Will can be used to reflect your wishes and protect your loved ones in the event of your passing:

  • Funeral arrangements: some may think it morbid to think about this before old age, but injury and death can unfortunately happen anytime. Saving your family the need to argue what you “would have wanted” is something very important that a Will can specify for you. Specifics like whether you would prefer to be buried or cremated are important choices and are best clarified in writing.
  • If you have children, you are able to name their guardian in case anything happens to you if they are under 18 years old. This allows you to choose the best option for their wellbeing and care, rather than leaving it to chance or the state who might put them into care.
  • If you have a partner but are unmarried, keep in mind they are not entitled to anything from your estate unless you specifically state it in your Will. Writing a Will ensures your partner  receives what you wish them to have on your death.
  • Whatever you leave to your spouse or civil partner will be exempt from inheritance tax. The amount of inheritance tax that is charged to your estate depends on the size of your estate. Writing a Will allows you to get advice so that you can find out whether inheritance tax is an issue that you need to address.
  • You can name an Executor (or more than one if you would like) who will be in charge of carrying out your wishes after you pass. Choosing an Executor ahead of time makes sure you have a dedicated party that will handle the affairs of your estate when you pass.. 

Many more factors go into creating a Will. There is no definitive age to start drafting your Will, but having one in place when you are young — and updating it when major life events happen — helps ensure that you are securing your estate and that your loved ones will be cared for according to your wishes once you pass.

Ensure Your Future With Elizabeth Middleton Solicitors

Visiting a solicitor, no matter what age, should be an easy and welcoming experience. At Elizabeth Middleton Solicitors, you can be assured to get that kind of treatment as soon as you walk through the door. Your wishes will be listened to as we give our expert advice during your visit.

Visit us online and book a meeting using our easy-to-use appointment calendar system. We offer many appointment times for your busy schedule. For empathy, understanding, professionalism and the expert care you are looking for, contact Elizabeth Middleton Solicitors today.

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How Does Tax Planning Come Into Effect When Writing a Will?

How Does Tax Planning Come Into Effect When Writing a Will?

20th May 2021

Are you considering writing a Will? Do you have children and want to ensure their care?  Do you have a business or assets that you wish to retain control of? We all want to leave our affairs in order so that our loved ones do not struggle to administer our estates while they are grieving. 

The concern is often where to begin when you decide to have a Will drafted for you.  What tax considerations there are? Who oversees the assets, receives them, pays taxes if the estate is taxable and distributes your estate?

If you die without a Will, your loved ones will not know your wishes. If your wishes are written down in a generic document, they can be disputed which could escalate to legal action. Family relationships may suffer as your loved ones are left trying to interpret what your intentions were. 

What Is A Will?

A Will is a legal document which gives away a person’s estate after they pass away. To legally create a Will, you must be 18 years of age. It states who will benefit from your estate when creating a Will, it is essential to recognise that one’s spouse does not automatically inherit everything.  In addition, unmarried partners are not legally recognised although they have a claim against the estate of the loved one that has died. 

Your Will needs to be protected and safely stored. Only the original Will is a legal document. A copy can be admitted by the Probate Registry but you have to follow certain rules which makes it complicated and expensive.

Components Of A Will

When you are ready to give instructions for your Will to be drafted, it is essential that you  understand the different elements that will make up the Will. Here are the four main features.

1. Executor

You will appoint an executor who will administer your estate when you pass away.

2. Beneficiaries

You choose who will benefit from your Will.   Your Will must identify who receives which assets as well as the method of distribution.  They can be outright or through a trust. 

3. Witness

Legally the final document needs to be witnessed by two people who are not the  beneficiaries. If a beneficiary is a witness, their gift under your Will will fail.

4. Updates

Do not make any amendments on the face of the Will because they will not be accepted by the Probate Registry.  Make an appointment with your Solicitor and let them know what changes you would like made. They will produce a new Will for you to sign and make sure that it is valid.

Tax Planning When Writing A Will

When writing a Will, it is essential to see a Solicitor so that they can advise you whether your estate will be subject to inheritance tax.  

Gifts

Gifts given to your beneficiaries can be exempt from inheritance tax if you survive the gift by 7 years. Special 14 year rules apply in certain circumstances. Contact us for more information. 

Exemptions

Consulting with a tax consultant will ensure that you obtain the best advice as to what exemptions are available to you.

Trusts

Establishing a trust when writing your Will can save potential taxes that may be due to the estate. With a trust, ownership transfer occurs while still retaining some level of control. Trusts are a great way to leave assets to children and grandchildren. 

Life Insurance and Pensions

Considerations when making a Will are life insurance and pensions.  Speak to your pension Advisor or Financial Advisor so that they make sure that you have nominated beneficiaries who will benefit so that they pass outside your estate. 

Charity

Donations to legitimate charities help to reduce the tax burden to your beneficiaries because they are exempt. 

What Is Inheritance Tax?

Inheritance taxes are paid if a person’s estate is over the threshold.

When writing a Will, you also need to consider the tax consequences of your estate at the date of your death.

The tax deadline in the UK is six months after the end of the month when the person died.

How To Plan For Inheritance Tax

Potential exemptions can occur for gifts in the previous seven years before a person dies. Different periods may require a calculation based on a sliding scale. 

Legal consultation can help determine if inheritance tax, capital gains taxes, or other taxes are due. Additionally, seek professional guidance on life insurance and pension funds. Donating to charity is free from inheritance tax in the UK as well as many other areas. 

Creating a Trust can help reduce or eliminate the burden of inheritance tax. The amount of tax due could be a fraction of the tax burden without a trust. 

It’s No Secret That You Need a Will

To ensure your estate is taken care of promptly, a Will or trust is the best course of action. Your loved ones will be able to handle your last wishes with ease when they are outlined clearly and tax preparations are accounted for.
Elizabeth Middleton Solicitors are at the ready with an excellent staff to assist you with your estate planning needs.  Contact us for more information about assistance with your will, as well as your other legal needs for probate, lasting powers of attorney, equity release, and settlement agreements.

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Appointing a Guardian for Your Children: What You Should Know

Appointing a Guardian for Your Children: What You Should Know

10th April 2021

If you have children, it’s important to appoint guardians in your Will. s

Our children are our top priority. We want to make sure they are cared for if something happens to us.. Who will act in their best interests? If your children are under 18, it’s imperative that you have a Will appointing a guardian to look after them.. 

You will need to consider who your children’s guardians will be and if they are able to care for your children. 

You also need to consider who would look after your children and make decisions on your behalf if you lose capacity, especially if you are the only parent with parental responsibility.

What Is A Legal Guardian?

A guardian is someone who has legal responsibility for your children. They have all the rights, duties, powers, and authority that a parent has. 

If both parents are alive and they have parental responsibility, if one loses capacity the other will continue to look after the children.  If both parents, for example, were to lose  capacity in the same accident, who would look after the children?  The Local Authority would assess the situation.  They may approach the family if they are in England and Wales to see whether they can look after the children.

It is better to appoint a guardian in your Lasting Powers of Attorney so that your children can be looked after if you are alive but incapacited.   

If, unfortunately, both parents were to pass away, it is also vital to have appointed guardians in both your Wills.  

What Does A Guardian Do?

Essentially, a guardian is responsible for caring for your child until the age of 18. The guardian is responsible for the children’s health, wellbeing and education. 

How Do You Choose A Legal Guardian?

Considering legal guardians is a significant decision as a parent. It requires balancing both emotional and rational choices. So how do you make the decision? 

Ideally, you should select guardians with similar values to yourself and your partner. 

Things to consider when choosing your children’s legal guardian:

  • What is the environment in their home? Is it stable? 
  • Are they currently involved in your children’s lives, or does the relationship need to be built? 
  • Do your children have special needs, and if so, does the potential guardian have experience or a fundamental understanding of what will be involved in the children’s care? 
  • Does the potential guardian want to care for your children long-term?
  • Where does the guardian live? Will the children need to be uprooted from their schools? 
  • Do the guardians have children of their own, or have they had experience raising children? Will your children and theirs get along?
  • Are they mentally capable of caring for your children?
  • Are they over 18?
  • If you are considering appointing your parents, are they in good enough health?

These are tough questions to ask but they are crucial in determining who would be the most appropriate guardian for your children. 

How Do You Appoint A Guardian In Your Lasting Power of Attorney and Your Will?

You will need a Health and Welfare Lasting Power of Attorney to appoint a guardian if you lose capacity during your lifetime.

You need a Will to appoint guardians for your children if you die. It is also a good idea to appoint alternatives in the event something unforeseen happens to your first choice.  It is crucial to review your Lasting Powers of Attorney and your Wills every three to five years to make sure your choices are still appropriate.. 

Sometimes, parents choose a couple to be guardians of the children, but legally they can choose up to four in England and Wales. 

What If You Don’t Appoint A Guardian?

If you lose capacity the Local Authority will step in to help your children.  Unfortunately, they may go into care while they assess the suitability of the family or friends that express an interest in looking after your children.

If you don’t appoint a guardian before you die, the courts will make decisions regarding the welfare of your children. 

If there is no surviving parent with parental responsibility, the interested relative will have to make an application to the  Court to be appointed as  a guardian.  Social services need to evaluate potential options and provide their findings to the Court. Considering guardian options can be a lengthy process.  In the meantime, the children might be put in care while waiting for a final decision from the Court.

Who Can Choose A Guardian?

In England and Wales, a person who has parental responsibility can appoint a guardian. The mother automatically has parental responsibility unless the Court has decided otherwise.

The father can obtain parental responsibility through the following ways:

  • Marrying the mother
  • Registered as the father on the birth certificate if the child was born after 12/1/2003
  • He and the mother file a parental responsibility agreement with the High Court in England and Wales
  • A Court Order gives him parental responsibility
  • He is appointed as the child’s guardian in the mother’s Will.
  • Adoption

We Can Help You Draft Lasting Powers of Attorney and a Will to Effectively Appoint Guardians For Your Children

To give you peace of mind, let us help protect your children while they are young.

Elizabeth Middleton Solicitors can help you create your will. Don’t wait — contact us today to get started.

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How to Talk to Your Family About What’s in Your Will

How to Talk to Your Family About What’s in Your Will

30th March 2021

Conversations relating to Wills are often pushed to the side in favour of more uplifting and positive ones. No one wants to talk about what happens when they die.  Ensuring your family is prepared for your death is essential if you want to make sure your wishes are met. 

So, how do you talk to your family about what’s in your Will?

It may be  difficult for you to find the words to articulate how you want your wishes to be carried out. But to make sure that your family is prepared to hear your thoughts, you need a Will stating who will look after your estate and benefit from it as well. 

Preparing for these difficult conversations can be intensely challenging.  We are here to help. Here are some tips when approaching your family and loved ones to discuss what will be in your Will 

Why It Is Important to Talk About Your Will

Death is traumatic and ignoring the conversation now may leave your loved ones with a more complicated situation to deal with. 

It is much better to ensure that your loved ones know your wishes before you die.  This stops any arguments or ambiguity as to what your wishes were. 

Your Will Is Not Just About Money 

Contrary to popular belief, a Will contains more than just your wishes for what happens to your money and assets when you pass away.   It can make provision for family heirlooms or items of sentimental value to family and special friends which can’t happen without a Will.

A well drafted Will can protect your assets so that your children get at least half of your property if you’re married in the event that the surviving spouse requires care.

It may also protect a vulnerable beneficiary so their gift does not affect his receipt of benefits.  

Making Preparations

Before going into this conversation with your loved ones, (if you want to discuss it with them) you should be prepared. It’s encouraged to have notes prepared on the rough topics you want to address- do you want your funds to go to a charity, or do you want them to go to your grandchildren’s education? Establish the answers to these questions and more before opening this conversation with your family. 

Bringing Up Finances

Conversations about your finances are never easy, especially when you’re talking about your finances after you pass.  It is helpful to think about who has the legal responsibility for carrying out your instructions.  Choose someone you trust.

Do you only want to leave money to your children or do you want to leave aside money for future grandchildren you haven’t met yet? These are some of the points you might want to think about before instructing a Solicitor to draft your Will.

You should also consider important password information and how the executors of your will would access your finances if you are no longer around. For example, if you have cryptocurrency, your family will need access to your login information in order to administer your Estate

Changes to Your Will

Updating your Will  is essential to keep up with your changing circumstances.  The law changes as well from time to time therefore your Will should be reviewed to make sure that it is up to date.

Now is the Time to Write Your Will

Once you have decided what you would like in your Will such as who you would like to benefit the it is time to instruct us. . Our experienced lawyers at Elizabeth Middleton Solicitors know and understand the importance of having a Will and how to ring fence your estate against care fees so that your children get at least half of your estate.

Our modern office in Winnersh Triangle has facilities second to none.  We will look after you, make you a coffee or tea to make sure you are comfortable before taking your instructions.  We can also meet you at your own home (COVID rules permitting). Contact us today so that we can help have the right Will for your estate.

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Will

What Should I Do if I Have Been Named the Executor of a Will?

20th March 2021

If you’ve been named the Executor of a Will, you are likely facing a new experience that you feel unprepared for. 

The Executor is responsible for paying off any debts or liabilities the deceased had accumulated and is responsible for distributing assets from the estate to the beneficiaries under the Will. You might be wondering what you should do if you’ve been named the executor of a Will, and it’s understandable if you’re a bit worried about it.

Proving a Will (obtaining the grant of probate for a person who has died leaving a Will) is highly challenging, especially if you’ve never been responsible for something like this before. You may feel overwhelmed trying to balance all of the tasks expected of you as the Executor, and you might not know where to start. However, lack of experience doesn’t mean that it will be very difficult for you to fulfill your role. 

It’s common to worry about whether or not you will follow the deceased’s wishes properly, but with a few steps, you can ease that anxiety and take on the challenge with a clear direction. 

We’ve put together this article to help you identify what challenges you may face as an Executor of a Will and how to approach every one of them. Here are a few things you should do if you’ve been named Executor.

What is an Executor? 

An Executor is somebody named in the Will who has the responsibilities of handling property, money, possessions and debts of a person who has passed away. While it might sound simple, the Executor is responsible for finding out the assets, paying any debts and distributing whatever remains according to the wishes of the dearly departed. 

In most cases, the Executor is a relative or close friend of the deceased, which means that they are usually also mourning a loss while handling the emotional and physical responsibilities that the Executorship position entails. 

Sometimes, a professional is appointed as Executor, such as a solicitor. Usually, this is done in cases where a person has complicated affairs and there is a need to have an expert involved very early in the administration of the estate. 

Hiring a professional is also sometimes used in situations where there is potential conflict  within the family. The professional could save the family the potential for disputes to arise as to how the estate should be administered.  This in turn would save the estate money because there wouldn’t be the need to go to court unnecessarily. 

Suppose a family decides that a professional who the deceased previously hired is not needed,  in that case, the professional can be asked to renounce to allow the family to administer the estate   themselves. 

What to Do if You Don’t Want To Be An Executor 

Legally you are not forced to take on the responsibility of an Executorship. Maybe you don’t have time,  you’re facing a health crisis or your emotional state is simply too extreme. In these cases, you can sign what is called a Deed of Renunciation. Here in England and Wales, this cancels your status as an Executor and allows the other named Executors to administer the estate of the dearly departed. 

If there are no other named Executors in the Will, the beneficiaries entitled to the estate can apply for Letters of Administration with the Will attached.

Renouncing your role as Executor should be done as soon as physically possible before you’re involved in the process of handling the deceased’s estate. Things can get complicated quickly if you’ve already been engaged and then wish to back out. 

Your First Step After Being Named the Executor of a Will 

If you’ve decided to continue serving as the Executor of a Will, the first thing you should do is understand what responsibilities you will have with this position. 

Some of these are:

  • Identify all assets of the estate and value them
  • Identify any debts and liabilities
  • Complete inheritance tax forms
  • Apply for a Grant of Probate or Letters of Administration 
  • Pay for funeral costs
  • Pay off debts 
  • Distribute the estate according to the deceased’s wishes. 
  • Draft estate accounts to show all the monies that were received, any debts and liabilities paid together with the distributions to the beneficiaries

Those in charge of an estate may  also be responsible for acting as Trustees for children under 18, if any or if a Trust arises as a result of the Will. For example, if the deceased left a child a large sum of money, the Trustee is responsible for protecting and ensuring that the money grows until the child is 18.

The executor is responsible, in short, for collecting, valuing, paying off and distributing all assets of the deceased. You may need to contact external companies for situations such as valuing property or tracking down all potential debts a person had. 

What If Something Goes Wrong? 

You can be personally liable if there are losses to the beneficiaries or creditors. If you could have reasonably avoided a late fee on a debt, for example, you would be responsible for the cost of late payment. 

Executors are always advised to place Section 27 adverts in the National Gazette and in the local paper to notify any potential unknown beneficiaries or creditors. This protects them from any liability in this respect.

Let Us Help 

At Elizabeth Middleton Solicitors, we can help you navigate your new position as Executor of a loved one’s estate.  Our probate services can help you finalise the affairs of someone who has recently passed and help take some of the pressure off your shoulders as the executor of the will. 

We know how vital kind and sympathetic services are for you as you’re struggling with the loss of a loved one, and our team is prepared to help you every step of the way. 

Reach out to us and let’s talk. Let us help you ease some of the burdens that come with a loved one’s passing. 

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Mortages

What Is a Lifetime Mortgage?

15th February 2021

It’s important to be aware of all the financial options available to you as you get older. In some cases, you might be looking to access cash through an equity-release scheme like a lifetime mortgage. However, with so many different options and types of loans and mortgages available, it can be difficult to know where to start. 

A lifetime mortgage can be a great way to access equity, but is it right for you? There are pros and cons to taking out this type of mortgage, and you will want to be sure you are aware of all your options. 

How does a lifetime mortgage work? 

A lifetime mortgage is a type of equity-release scheme that allows you to borrow money against your home. In short, it enables you to access cash, tax-free, without having to sell your residence. Most lifetime mortgages allow you to borrow between 20% and 60% of your property’s value, and when you go into long-term care or pass away the loan is paid off through the sale of your home. Any leftover funds will go to your beneficiaries as specified in your will.

When you take out a lifetime mortgage, you can choose to either receive a lump sum or receive your money in smaller amounts dispersed as you need it. You can pay off a lifetime mortgage early, but there may be an early repayment charge. 

Unlike a regular mortgage where you must make regular payments on a decreasing sum, with a lifetime mortgage you are not required to make these payments. Depending on the type of lifetime mortgage you opt for, you can pay off interest on the loan monthly or pay it off at the end of the loan when your home is sold. Interest can build up quickly, so make sure the loan you get is guaranteed by the Equity Release Council so that you don’t end up owing more than your home is worth.

How can a solicitor help you?

After your Equity Release provider has indicated they are willing to give you a Lifetime Mortgage, they will ask you to engage a solicitor to advise you about the consequences of the Equity Release mortgage and when it becomes payable.

Is your Equity Release mortgage application complex or simple?

Your title deeds and previous marital status will determine whether you have a straightforward matter or not. 

The title deeds will state whether there is a restriction registered against your title. It will have to be removed before your Equity Release provider will release the funds. A simple matter does not have a restriction. It will normally take between one week to two weeks in such cases. 

In complex matters where there is a restriction against the title, for example because there is a trust or the person was married before but a divorce hasn’t been finalised, it will take between three months to a year to remove as the trustees have to be involved.

What is the process?

After any legal complexities have been resolved you will receive your signed mortgage offer, a solicitor’s certificate to show you have been advised that your beneficiaries and heirs know that the repayment of the Equity Release mortgage will reduce any funds they might ultimately inherit. If you have any state benefits such as pension credit will be affected. You have an ongoing responsibility to insure the property and maintain it. 

All the signed documentation will be sent to the lender’s solicitors who will set a completion date when they will send the money to be forwarded to you.

Contact Elizabeth Middleton Solicitors

A lifetime mortgage can be a great way for you to access a cash sum tax-free, but the process can be confusing. Elizabeth Middleton Solicitors has the legal expertise to make sure you choose the equity-scheme that is right for you, and can help make sure your assets are protected for your loved ones. Contact us today, and let us help you protect your assets and help you plan for your future.

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Lasting Power of Attorney and Deputyship – What’s the difference?

Lasting Power of Attorney and Deputyship - What's the difference

20th January 2021

It can be difficult to even think about planning for a circumstance in which you lose the mental capacity to make your own decisions. However, with dementia and other neurodegenerative condition rates on the rise in the UK, it helps to be prepared and knowledgeable about what your options are in the event that one day you need to be. 

Appointing  attorneys under Lasting Powers of Attorney give you an option to choose people you trust to manage your affairs if you lose capacity. That opportunity is lost to you if you lose mental capacity. The only alternative is for your loved ones to apply for  Deputyship application at the Court of Protection so the latter process is very expensive, time consuming and has yearly responsibilities to the Court of Protection. 

 The two processes are different but the option you have depends on whether you have capacity or not. 

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint someone to assist you in making decisions, or make decisions for you (as your “attorney”), in case you lose the mental capacity to do so. The appointed person is known as the attorney, and you can choose an individual or multiple people to act as your attorneys. 

There are two types of LPAs. One for  Health and Welfare, the other for Property and Financial Affairs.  It is always best to have both.. A Health and Welfare LPA will give the attorney the power to make decisions about  your health, for example choosing a care home, consenting to having an operation if you are unable to do so, implementing your Do Not Resuscitate instructions or your Living Will.   A Property and Financial affairs LPA will give the attorney the power to make financial decisions, for example paying bills, managing bank accounts, selling a home, and other financial issues. 

To create an LPA, you need to choose your attorney or attorneys, fill out the correct forms, and register your LPA with the Office of the Public Guardian. 

What is a Deputyship Order?

A Deputyship Order is a legal document appointing a person to act as a “Deputy” for someone who has already lost the mental capacity to make their own decisions. In this case, it is not possible to appoint an LPA. Instead, a Court of Protection will appoint a Deputy to act on behalf of the incapacitated person.

To create a Deputyship, a person must apply to the Court of Protection and have their application reviewed by a judge. Like an LPA, a deputyship can be for health and welfare or for property and financial affairs.

What are the differences? 

Mental Capacity

Mental capacity is the ability to make your own decisions. To set up an LPA, a person must have mental capacity at the time they create the document. In the case of a Deputyship, the Deputy is appointed after the person has lost their mental capacity. 

Cost and Timing

Creating an LPA generally takes between eight and 12 weeks and costs £82 to register each document with the Office of the Public Guardian if your income is over £12,000pa. In the case that you lose your mental capacity, your attorney can start acting on your behalf immediately. 

If you lose mental capacity without an LPA in place, a Deputyship application can take between six and twelve months to set up. In addition, it costs at minimum £365 per application, and the fees often go up from there. Because it takes so long to set up a deputyship, this can impact your ability to quickly pay bills or set up care. 

Choice and Control 

When you set up an LPA, you have the ability to stipulate who will be in charge of your affairs and what powers they have. You can choose anyone over the age of 18 to be your attorney, and you can decide whether your attorney or attorneys can act independently or together. This helps ensure you retain input into how your affairs are handled.

In the case of a Deputyship, the family normally apply to the court to be your Deputy but if there is no one who can apply then the Court will appoint a professional Deputy.  

Supervision

A Court-appointed Deputy is under more supervision than an attorney in order to help protect the incapacitated person from financial abuse. The Deputy must make an annual report to the Office of the Public Guardian that details all expenditures made on behalf of the incapacitated person. In addition, the Deputy must take out an annual security bond, which acts as insurance for the incapictated person in the case the Deputy mismanages their funds. 

An attorney and an LPA is under much less strict supervision. Unlike a Deputy, they are not obligated to report to the Office of the Public Guardian. While the Court can step-in if there is evidence an attorney is acting improperly, they are not monitored to the same degree as a deputy. 

Be Prepared

We know that thinking about the future can be stressful but the situation is worse if there are no attorneys appointed and it’s more expensive both in terms of time and money. We believe that everyone should be treated with respect, kindness and receive a personal service that meets their needs in a relaxed, un-rushed environment. 

Elizabeth Middleton Solicitors is here to help you prepare for the future and ensure your wishes are followed, which is why our expert legal team specialises in Lasting Power of Attorney, Wills, Probate and Equity Release. 

Don’t wait for life to happen – Get in touch today to learn more about our LPA services and gain the peace of mind that your future is taken care of.

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Elizabeth Middleton Solicitors

The Pandemic and Its Effects on English Probate Law

The Pandemic and Its Effects on English Probate Law

10th January 2021

The death toll is rising across the country, and with it, thousands of people are inheriting their loved one’s estate. While trying to grieve, the estate’s executors have to deal with the legal side of their relative’s untimely passing. 

It is difficult for those responsible for carrying out their family member’s last wishes. The stress the family goes through is impacted depends on whether their loved one left a Will or not. Building societies, law firms, and banks are all needed to assess the value of properties and complete documents to distribute the deceased’s estate accordingly. 

COVID-19 is affecting everyone in various ways, from health issues to legal ones. You need to have all the information possible when executing the estate of your loved one, so let’s address some of the ways in which the lockdown has affected probate law in the UK.

What is Probate?

The word “probate” is thrown around liberally when the subject of inheritance comes about after someone dies. Probate is the process of administering a loved one’s estate. If a person has left a Will it will be sent to the Probate Registry before their assets can be given to their loved ones.  The process is easier if there is a Will because we know what the person wanted. 

If the person didn’t leave a Will when they passed,  the intestacy laws will apply.  Intestacy is the law that determines who inherits and who is entitled to the estate. Intestacy laws  will also determine who will administer the estate if there isn’t a will. The administrator is chosen from the list prescribed by law.  

By obtaining the letters of administration, the first step is complete, and the administrator can start the legal process of administering of finding out what assets and liabilities the dearly departed had before distributing the estate to the surviving loved ones. 

How Has the Pandemic Affected Probate Law in England and Wales??

Managing the estate of your loved one is hard.  COVID-19 has made it more difficult. . The restrictions  to help keep everyone safe have made it even more challenging. Registering the death, valuing their assets, applying for the grant of probate or letters of administration is taking much longer. Before the pandemic it used to take ten days; it now takes between 6 months and a year.

#1. Registering a Death

When a loved one passes, it is vital to register the death within five days of the deceased passing. In England and Wales, most Registry Offices are offering telephone meetings to register a death. 

You can locate your local office by using the Government’s Website to find out where you can call to set up an appointment. While the appointment is free, you will have to pay a fee for each death certificate. The document will then be sent to you in the post.

#2. Banking Institutions

The deceased bank or other financial institution may not be open or operating at full capacity at this current time. Therefore it will take longer for them to provide us with the finances at the date of death. You will need to contact their financial institution to see if you can come in to manage your loved one’s account or if they will be able to do it over the phone.  

#3. Valuation of Property

Physical valuations are challenging to obtain with real estate agents either being closed or overwhelmed with the requests due to the staggering amount of deaths from COVID-19. Instead, an estimation can be used until a physical one can be completed. Physical valuations are vital if an estate is liable to pay an inheritance tax or near the threshold.

#4. Obtaining the Grant of Probate

When you obtain the death certificate you will know whether you need to engage a probate solicitor to ensure the probate is done correctly. You will require one if the estate has property or if the assets are in the deceased’s sole name. Most law offices have modified hours or do video or in-person  meetings to go over the information collected with you. 

If done by video, the probate solicitor will gather the information, prepare the application, and send the paperwork through the post for you to approve.  Once you are happy with the application, you can submit it to the probate registry. The grant of probate will be sent back to you through the post once it has been approved. 

Choose the Right Solicitor for Your Probate Needs

Elizabeth Middleton Solicitors personalises its probate services according to every particular circumstance, and our lawyers are experts in managing and walking you through every step of the process.

Because we know this is a challenging time and a difficult process, we’ll work at a pace comfortable for you. Because we have spent more than a decade specialising in just such affairs, we work tirelessly to make this process as easy as possible on you while being efficient and effective in closing the estate. And because we know that circumstances can change rapidly, we provide the flexibility you need to handle all legal proceedings surrounding the passing of a loved one.

Let us help you manage your responsibility as executor and get you and your loved ones the closure they need. To learn more or to schedule a consultation, contact us and let us help you move forward and ensure that your loved one’s estate is wound up properly.

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Wills

Why Having a Will Is Important at Any Age

pen

30th December 2020

We all hear how uncertain life can be — and that saying applies to both the extraordinary and devastating surprises that may come along. 

No one wants to think about life’s challenges or death, especially at a young age, but it is essential to think about what will happen when that day comes. 

A will is a legal document that primarily answers a very important question:

What will happen to your belongings if you die?

We never know when we might pass away. So, it’s important to plan ahead so your estate goes to people you have chosen. 

What Happens when you die?

If you do not make a will, your estate will be divided according to the law on intestacy. 

If you leave a will, it allows you to choose your executors who will distribute your belongings according to your wishes. 

 Do you have Children?

If you have children under 18 when you die, you need to appoint guardians to look after them if you and the other parent are not around. I advise that two guardians be appointed in case one is unable to act for any reason.

What Happens to Your Possessions?

Your children, parents, friends, or pets can also benefit from your will if you specify what you want. We try our best to be in control of our future, and it’s important to also have control over who will organize your estate, your assets, dependents, pets, accounts, and property.

Your Pets

  • Who will care for your pets? 
  • How will long-term care, such as pet food and veterinary care, be paid for? 

Your Belongings

  • Who will inherit your assets — bank accounts, property, vehicles, etc?
  • Who will inherit your belongings — furniture, clothes, etc?

No Friends or Family?

A will is important even if you don’t have direct beneficiaries. For example, if you have a favorite charitable organization, you can name that charity as your beneficiary. Inheritance Tax laws vary from country to country, but many taxes will generally be reduced if you leave 10% of your estate to a charitable cause, any inheritance tax that has to be paid is reduced from 40% to 36%.

Let Us Help

Making a will is not always the top of priorities when a person is thinking about school, travel, marriage — and all the wonderful things life has in store to offer. 

Knowing that the unexpected can happen are all good reasons to write a will when you are in sound mind.

Elizabeth Middleton Solicitors can help you create your will. Don’t wait — contact us today to get started.