Author: Elizabeth Middleton

A Statutory Will is made on behalf of someone who has been deemed unable to create or update a Will themselves because they lack mental capacity. The Will is made and approved by the Court of Protection which is given the authority to do so based on the Mental Capacity Act 2005.

In order to determine whether a person has lost capacity, there are specific questions that must be answered.

• Do they understand the information relevant to the decision?
• Are they able to retain this information, even for a short time?
• Can they use that information as part of the decision-making process?
• Are they able to communicate their decisions?

It’s important to remember that a person can lack the mental capacity to make certain decisions but be to make simple ones. 

A Statutory Will has the same effect as if the person who did not lack mental capacity made and executed the Will themselves.

Applying for a Statutory Will

One must apply for a Statutory Will with the Court of Protection. This is the only court that can deal with Statutory Wills, as it was set up to oversee the interests of those who cannot make critical decisions for themselves. The application can be challenging, so using the services of a solicitor with experience in dealing with the Court of Protection is recommended.

Anyone can apply for a Statutory Will after receiving permission from the Court of Protection. Certain people are not required to get the court’s permission before applying. These people include:

• Court-appointed deputies
• Public guardians
• Attorneys under an EPA or LPA
• Someone who, either through an existing Will or intestacy laws, would be entitled to property (i.e. a spouse)

The person who applied for the Will must sign two copies of the Will on behalf of the person who has lost mental capacity. There must be two witnesses over the age of 18 present when the Will is signed.  Their signature is also required.

The Application

When you apply for a Statutory Will, you will be required to provide some or all of the following documents:

• A statement describing why you think the Statutory Will is required
• An “Assessment of Capacity” form (Form COP3)
• If applicable, a copy of the current Will with all amendments/codicils
• Information about the proposed Executors, as well as their agreement to fulfill the role of Executor
• Information about beneficiaries and the reason they should be included in the new Will
• Deputyship orders, if applicable
• Any LPA (Lasting Power of Attorney) or EPA (Enduring Power of Attorney)
• Details on inheritance tax that could arise because of the Statutory Will
• The following details about the person for who the Statutory Will is proposed:
  • Proof that they reside in England or Wales
  • Family details
  • Assets, debts, and income
  • Current and future needs
  • Residence and costs
  • Their medical condition
  • Their life expectancy

Costs

Check the Court of Protection website for the current application fee.  If there is a hearing, there will be an additional fee.  You will also be required to pay solicitor’s and counsel’s fees if applicable.

After you have filed the Application, what’s Next?

After the Court of Protection receives your application, they will issue a “Directions Order,” which will advise you on what will happen next.

For example, the directions might advise you to notify the solicitor representing the person who cannot make decisions for themself, anyone named in an existing Will, or anyone who may benefit if a person died intestate about the application.

If the involved parties can’t agree on the proposed terms of the Will, there may be a Court Hearing. If this happens, the Court will appoint the Official Solicitor to represent the person who lacks capacity. If no one objects to the proposal, it typically takes about six months to get the Statutory Will.

Trust Elizabeth Middleton Solicitors for All Your Estate Planning Needs

A Statutory Will can be helpful. Still, it isn’t ideal for every situation. To ensure you are making the best decision for your circumstances, enlisting the assistance of a knowledgeable solicitor is essential.

At Elizabeth Middleton Solicitors, we can help you plan for the future and solve legal problems with professionalism, expertise, compassion, and kindness. We know that you want to ensure that your family is protected after you pass away, and we want to help ensure that your last wishes are fulfilled.

Contact us today to schedule a consultation in our private office in Winnersh Triangle or in the comfort of your own home.

Writing a Will is essential to ensure that your assets are divided as you desire and your last wishes are carried out as planned. If you don’t have a Will but have considered writing one, you may have thought of doing it yourself using one of the many online tools and templates. However, there are many downfalls to using these online Will writing tools.

When you choose to use an online service or a template to write your Will, it’s a pretty straightforward process. You enter your details into an online form. Then, complete your address, add a payment method, and you will receive your Will within a couple of days, or sometimes instantly if the service allows you to print the completed document.

Although writing a Will online may sound easy and maybe even less expensive than enlisting the assistance of a solicitor to write your Will, if something seems too good to be true, it usually is. This article discusses why writing your Will online isn’t the best idea and how a solicitor can provide more value and is a better choice.

Downfalls of Online Will Writing Services

Drafting Wills is not a regulated service

One of the downfalls of an online service is that not all Will writing companies are regulated. Solicitors, on the other hand, are regulated, required to have professional indemnity insurance and they have to keep up to date. Trusting a solicitor to write your Will ensures that it reflects your personal and financial circumstances at the date it is drafted. 

They Can’t Offer Advice

If you have complex issues to include in your Will, an online service typically cannot offer advice. Estate planning laws are constantly changing.  A solicitor will ensure that your Will takes into account any of those changes. So while it may be cheaper upfront to write a Will online, it may cost a lot more later because you will have denied yourself access to inheritance tax saving advice (if it is applicable) or ring fencing your assets for your children so that you are assured that they will aways get part of your estate.

It is also common for a trust to be set up in a Will.  An online service cannot advise you on whether or not a trust could be beneficial for your situation. A solicitor can provide that advice to you as part of the process.

How a Solicitor Can Help

Solicitors Make Sure you get extensive advice for your personal and financial circumstances

Writing a Will is part of estate planning. When writing a Will, there may be other matters that you need to get in order. Not only can a solicitor help you with that, they know what questions to ask to ensure that all property and other interests of which your estate is comprised are included in your estate planning.

A Solicitor can Help With Lasting Powers of Attorney and Inheritance Tax

A solicitor will do more than just draft your Will. They can use their skills and knowledge to help establish if you are vulnerable and ensure a plan is put in place to mitigate your personal circumstances.  As a result, if inheritance tax is likely to be charged, they can advise you how to plan your estate to reduce the liability.

When a Will is written, people often choose to make a Lasting Power of Attorney. A Lasting Power of Attorney is set up so that you know if anything happens to you, your health and financial affairs will be handled as you wish. A solicitor can help you identify whether you require one and draft a Lasting Power of Attorney for you as well.

Let Elizabeth Middleton Solicitors Help Write Your Will

By enlisting the services of an experienced solicitor to write your Will, you can rest assured that your last wishes are implemented, and your estate will be handled how you intended it to be. Your family’s future is too important much to risk on an online Will.

At Elizabeth Middleton Solicitors, we know the importance of a well-drafted Will. Not only can we help you write your Will, but we can help you update it as your life circumstances change. We know how daunting visiting a solicitor can be, so our team provides a professional, friendly environment to ensure you are comfortable and relaxed during your visit.

Contact us today to schedule your consultation.

Losing a loved one is a very emotional event.  If they have named you as a beneficiary in their Will, in addition to dealing with your grief, you may have questions about what happens next. The uncertainty can be nerve-wracking, especially if your loved one supported you financially or your home is part of the terms of their Will.

Often, a beneficiary doesn’t know what to do if they expect that the Executor is not working fast enough or mismanaging the estate. In this article, we will discuss some of the common questions we hear regarding being the beneficiary of a Will.

What are My Legal Rights?

As a beneficiary, you have legal rights over your portion of the inheritance after the estate has been distributed. However, before that time, you have the right to receive information to stay updated on the administration of the estate. This leads to our next question.

Is the Executor Required To Keep Me Updated on the Status of Things?

The Executor of the estate is the person who is responsible for administering the estate. What information is released to beneficiaries is at their discretion, but it’s in everyone’s best interest to keep things transparent. At the beginning of the administration process, the two of you should agree on how often they will provide updates, and they should adhere to this schedule.

After the Grant of Probate has been issued, the estate administration begins. The Executor(s) must keep accounts of the estate and provide you with them when asked. If you believe the executors aren’t being as transparent as they should be, or if you believe they are mismanaging the estate, your solicitor can provide you with legal assistance.

When Can I See the Will?

You only have the legal right to view the Will after the Grant of Probate is issued because that is when it becomes a public document. And although it rarely happens, the Executor could refuse if you ask to see the Will before then. You typically will know or be told that you have been left an inheritance, and if you ask to see the Will before the Grant of Probate is issued, you will likely be allowed to.

How Long Until I Receive My Share of the Estate?

The times to settle the estate vary based on the circumstances of each estate. For example, some estates can take 8-12 months, while others take longer.  Why does it take so long?

Before the Executor can make any distributions, they must settle all outstanding debts and ensure all assets are available. This process could involve the sale of a property, which could take time. It could also take additional time if foreign assets are involved in the estate.

An Executor can’t be made to distribute an estate until a year after the date of death. This period is known as the ‘Executor’s year’. And even after this time passes, if there is a good reason why they haven’t distributed assets from an estate, i.e. they’re waiting for a property to sell, they still can’t be forced to distribute assets.

Can the Executor Change the Will?

The Executor can only make changes to the Will if:

• The beneficiary whose share is changing agrees
• The beneficiary is an adult
• The beneficiary has mental capacity

Can the Executor Transfer or Decide Not to Fulfill Their Duties?

The Executor cannot transfer their duties to someone else. However, they can get others to carry out administrative or practical tasks. If multiple Executors are named, not all have to act if they choose not to. This is known as Power Reserved.

When an Executor chooses to have Power Reserved to them, the other Executor must submit a formal notice stating that the Grant of Probate will be taken out in their name only. The acting Executor’s name will be on The Grant of Probate and will note that the other Executor has Power Reserved to them.

If an Executor chooses to give up their rights to administer the estate, they can do so by renouncing probate. However, they cannot renounce their duties if they have already received the Grant of Probate and begun taking steps to administer the estate. They can only step down from their role as Executor by applying to the Court.

Can I Remove the Executor?

If you think the Executor isn’t carrying out their duties, you can apply to the Court to have them removed. The Court will require evidence that they are no longer fit for the role. Some situations where this could be the case include:

• They were convicted of a crime after being appointed executor.
• They don’t have the mental capacity to carry out their duties as executor.
• There is a conflict of interest.
• They have committed serious misconduct such as mismanaging or stealing from the estate, selling a property for less than market value, or failing to keep accurate records.

Are You a Beneficiary Who Needs Legal Advice? Contact Elizabeth Middleton Solicitors

You’re going through a difficult, emotional time. If you feel like your rights are being infringed upon, or you simply have a question, having a qualified, experienced solicitor available is essential.

Elizabeth Middleton Solicitors has been providing expert legal services to clients for over ten years. With experience in Wills, Probate, and Conveyancing, you can rest assured that you are getting the quality legal service you deserve from a team that cares about you and your situation.

Contact us today to schedule a consultation in our private office in Winnersh Triangle or the comfort of your own home.

There can be no denying the important role that pets play in the average household in the United Kingdom – indeed since the start of the pandemic, the percentage of pet owners in the UK increased from 45% to 59%. Whether they are regarded as simple animals, beloved companions, or even a fully fledged member of the family, our pets are a vital presence in the lives of countless people across the world.

In that context, it’s hardly surprising that so many people are curious about providing for their pets in their Will. While a human lives much longer than a cat or dog, it’s possible for an owner to pass on while they still have animals in their homes, and wanting to make sure those animals are taken care of after the owner’s passing is only natural. In this article we’ll discuss all the relevant facts of how to provide for your pet’s well being in your will.

Can You Name a Pet as a Beneficiary?

The short answer to this question is “no”. In the eyes of the law, a pet is not a legal entity.  Instead, pets are considered assets, just like money, land, or vehicles – a form of property whose ownership can be legally passed from one person to another. Therefore, if you try to include a pet as a beneficiary in your Will, the gift will be invalid.

There is a silver lining to this fact however – while you can’t actually give money to your pets,  you can leave detailed instructions and conditions for their care.

Even if you can’t leave money directly with your pet, it’s important to arrange some kind of plan or leave instructions for the animal’s care. If you don’t, a beloved pet can easily bounce between new owners within your family, or be given directly to a local shelter.

What Options Exist?

There are a few options available when it comes to creating arrangements that will ensure that your pet is happy and taken care of after your passing. The first option is the simplest and most direct – simply bequeath the pet as a gift, just as you would any other asset. If you have a trustworthy and willing candidate, simply giving them ownership of the pet is the easiest choice to ensure the animal’s well being.

Choosing a Guardian

There are many important considerations to keep in mind when choosing who will take care of your pet: it must be someone that you trust, who will love and take good care of your furry companion, and who is willing to take on the responsibility of a new animal. There are a few vital considerations to keep in mind when arranging for a pet in your will.

Firstly, it’s necessary to have a conversation with the person you’d like to inherit your pet to make sure that they are indeed willing and able to do so. Even a close friend with a deep love for animals may refuse to accept the care of your pet if they lack the time, money, or space to do so.

Secondly, it’s always a smart idea to name a secondary person just in case the first one is not able to look after your pet.

Lastly, it’s possible to leave your pet’s fate in the hands of a charity rather than an individual person. Some charities are highly focused, specialising in particular dog or cat breeds, while many others offer broad services aimed at caring for and rehoming pets in general.

Establishing Financial Care

The final step to consider when arranging for your pet in your Will is providing resources to care for the animal.  Owning a pet can be expensive, so gifting it to a friend with no financial support is not advisable.

The easiest option is to leave money with the person inheriting the pet. However, this doesn’t prevent them from spending the money on things other than your pet’s care, so the safest choice is to establish a trust. This allows funds to be specifically set aside which can only be used for the purpose named in the trust (in this case, the care of your pet), ensuring that the person caring for your animal will have funds to do so, but can’t spend the money on an exotic holiday.

Get Legal Advice

While it’s certainly possible to write a Will on your own without the help of a solicitor, doing so leaves room for mistakes or errors that can prevent your final wishes from being carried out the way you asked. That’s why, when it comes to ensuring that your pets and loved ones are taken care of after your passing, there’s no one more trusted and proven than Elizabeth Middleton Solicitors.

We specialise in Wills, Probate and Equity Release.

Death isn’t something most people want to think about or have to plan for, but having a Will is an important preparation to protect finances and provide for loved ones after death. Even if most people think they are too young to write a Will, or that they have no assets to leave behind, there are many reasons to consider writing a Will. Common misconceptions can often stop some from writing a Will.

We will now look at the biggest myths about writing a Will and we will tackle why people often put off writing it.

“My spouse will inherit all my assets”

Even if you are married, it does not necessarily mean your husband or wife will automatically inherit all assets after your death. When you die without a Will, the laws of intestacy apply.  That means that your estate will be shared in a strict order dictated by the law.  The survivor might find themselves owning their property with their children which might bring about some unwanted consequences.  Unmarried, partner will not inherit under the intestacy rules although they have a claim against the estate.

“My family will look after my children”

While we want to think this is an obvious choice after a parent dies, it is not always the case.  If you do not  write a Will, there is no guarantee as who will look after any children you have who are under 18 years old.  Even if there is a good candidate for a guardian among your friends or family, disputes might arise which can be resolved by appointing the guardian of your choice in your Will.

“I don’t have anything to give”

Even if you do not own property at present, review your situation every five to ten years to see whether your circumstances have changed.  If you inherit property, that is the best time to have a Will drafted for you to reflect that change.

“Once you write a Will, it cannot be changed”

You can change your Will at any time as long as you have capacity. Personal circumstances change as time passes by and your personal wishes may change too. Reviewing your Will will ensure that it reflects your circumstances at any point in time.

“It is too complicated to make a Will”

While some think that creating a Will is an expensive process or is too time-consuming, it can actually be less work and less money than the cost and time involved if you don’t have one.

Will and Trust Expertise with Elizabeth Middleton Solicitors

While the thought of writing a Will may be daunting, it does not have to be a disheartening experience and we can offer you peace of mind that we will look after you during the process.

Elizabeth Middleton Solicitors are here for you with an experienced and considerate team to guide you through making a Will or trust. Contact us today for more information and let us help you create a plan for the future.