Take a look at some of our most frequently asked questions surrounding Lasting Power of Attorney, Probate, and Wills.
FAQ's Lasting Power of Attorney
An LPA is a legal document that allows you (the donor) to choose one or more people (the attorneys) to help you make decisions or to make decisions for you when you are unable to.
Anyone over the age of 18 but they must have mental capacity to be able to do so.
You can change or cancel your LPA at any time as long as you still have the mental capacity to make decisions. If you want to add another attorney, you will need to end your LPA and make a new one. However, if you simply want to remove one of your attorneys, you can ask the OPG about a partial deed of revocation.
If you simply want to end your LPA, you can do this as long as you have mental capacity. You will need to send the original LPA and a deed of revocation to the OPG.
There is an LPA that covers health and welfare and one which covers property and financial affairs.
The health and welfare LPA allows your chosen attorneys to help or make decisions on your behalf regarding medical care, decisions regarding care homes, and life-sustaining treatment. It could allow them to help you with simple things like ordering prescriptions. It can only be used when you cannot make the decision yourself.
The property and financial affairs LPA allows your chosen attorneys to help make decisions when you still have the capacity or make decisions on your behalf, should you lose capacity in the future, regarding your bank accounts, any property you own, or any financial investments you may have. They could use it to do something as simple as paying a bill for you. It can be used as soon as it is registered with your permission.
People to notify is optional in the forms but should be considered where you are appointing attorneys who are not your immediate family so that if they have any concerns about the appointment of the attorney(s) you have chosen, they can raise any concerns with the OPG before it is registered.
The OPG fee is £82 for each LPA so if you make both types, this will be £164. You can apply for an exemption or reduction of this fee if you can prove you are in receipt of any of the qualifying means-tested benefits or if your income is less than £12,000 per year. If you instruct a company to prepare and administrate the documents for you, their fees will be payable which are in the region of £250 + VAT per LPA.
This is the person who is signing to say that they are happy that you, the donor, has the mental capacity to be able to make an LP. They must have known you for at least two years, or be signing as a professional, such as your GP. We would recommend a capacity assessment if in doubt.
If your attorney is your husband/wife and you get divorced, this could end your LPA. Also, if your attorney becomes bankrupt or subject to a debt relief order, this could also end your LPA. Finally, if the court of protection decides to remove an attorney, this could also end your LPA.
If one of your attorneys dies, you must notify the OPG and provide them with a copy of the death certificate and the original LPA, and any certified copies you may have made. If you only had one attorney, this will mean that your LPA is no longer valid unless you had a replacement attorney named. Also, if you had more than one attorney but they were appointed to act jointly, your LPA will fail.
If one of your attorneys loses capacity themselves, they will have to be removed and then it depends on whether they were solely appointed or not as to what that will mean for your LPA.
You will need to register your LPAs with the Office of the Public Guardian (opg) before they can be used. There is a registration fee to pay at this stage. You will also need to notify any people you have named in the form as appropriate people to notify.
You need to decide whether they make decisions together (jointly) or whether they can make them together and on their own if needs be (jointly and severally). If you choose jointly, they must all agree or the decision cannot be made. If you choose jointly and severally, this allows them to make decisions if the other(s) cannot be reached.
You can make an lpa online or using a paper form. If you do it online you will still need to print the form off as it needs signing by all the people involved and all signatures need witnessing by someone over 18. There is a strict order in which the forms must be signed also. The forms must be signed by you, the attorneys, witnesses and the certificate provider.
You can choose more than one person but if you do, you must decide whether they can make decisions together or separately. You can also choose replacement attorneys just in case your first choice is unable to act when needed.
They need to be over 18 and could be your husband/wife, other relatives, friend, solicitor, or other professional. They must have mental capacity. They cannot be subject to a debt relief order or bankruptcy for the property and financial affairs LPA.
It is worth considering how well they look after their own affairs, how well you know them, and if you trust them.
If any of your attorneys change their name or address, you must write to the OPG to notify them.
When you die, your LPA will automatically end and your attorneys will have no power over your estate unless they are also appointed in your will as executors or are the personal representatives of the estate should you not leave a will.
FAQ's Probate
Applying for probate is applying for the legal right to deal with someone’s property, money, and possessions (assets) when they die. If a will was left, then it will be a grant of probate which you apply for but if no will was left, it will be letters of administration.
You may not need to apply for probate if the person who died jointly owned all of their property and money, i.e. in joint bank accounts.
Also, even if the person who has died had sole bank accounts, depending on the amount in each account, you may not need to get probate for the release of the funds by the bank. Each bank has different rules regarding how much they are allowed to release without probate.
However, if any property was owned solely by the deceased, probate will always be needed to deal with that property in order to transfer it to the person/people who have inherited it.
it depends on whether the person who has died has left a will or not. If there is a will, it is the executor(s) of the will who are entitled to apply. If they did not leave a will, there are rules under the laws of intestacy as to who can apply. They are called the administrator. The order of entitlement is:
husband/wife/civil partner
children
grandchildren
great-grandchildren
parents
brothers/sisters
half brothers/sisters
grandparents
aunts/uncles
If there is no will, the unmarried partner of the deceased is not able to apply and is not automatically entitled to inherit anything from them.
If you are the correct person to apply for probate but you don’t want to, there are forms which you can complete to give up your right and appoint someone else.
If there is a will, you will need to find the most recent original will first. You also need the original death certificate or an interim death certificate from the coroner.
You will also need to gather information about all of the deceased’s assets and value of the estate. If the value of the estate is significant, you may have to pay inheritance tax first before applying for probate. If this is the case, you will be required to complete a report for HMRC.
Inheritance tax will not be payable if everything passes to the deceased’s husband/wife/civil partner, a charity, or a community amateur sports club. Also, there will be no tax to pay if the value of the estate is below £325,000. This is the tax threshold.
This threshold can be higher if the family home is being passed down to children or grandchildren and if the deceased’s person is widowed.
If the value of the estate is over £5,000, there is an application fee of £273. If you want extra copies of the grant of probate, these are charged at £1.50 each. If you use the services of a professional to assist you with the application, you will also have their fees to pay (see below for more info).
You can apply online or by post yourself. However, if you require assistance to ensure the application is completed correctly, you can instruct a solicitor to apply for you. Solicitors will usually charge a percentage of the estate to deal with probate for you.
Alternatively, you can seek advice from experienced probate handlers, such as our company, to assist you with making the application yourself. This would be at a fixed cost which would be considerably less than that charged by a solicitor.
There is an application form to complete, which one you use depends on whether there was a will or not. Also, if you valued the estate and there was no inheritance tax to pay, you will need to complete the report to the HMRC at the same time as the probate application.
Once all forms are completed, the application will be sent to the probate registry along with the required documents and any fee payable.
It depends on how busy the probate registry is really. It can take anything from four weeks up to a few months, dependng on their capacity.
You can start to deal with the estate. You will need to send a copy to any banks or other organisations which hold the deceased’s assets in order for them to release the assets to you. It would be a good idea to open an account purely to deal with the estate.
Any debts must be paid and possibly a notice placed in the gazette to alert any potential creditors that they can now claim anything owed to them. This will protect you from having to pay any such debts later on if any creditors come out of the woodwork after you have already dealt with the estate.
You will then need to share out the remaining estate as per the deceased’s will or as per the rules on intestacy mentioned above.
FAQ's Wills
It is a legal document which states what you want to happen to your property and other assets when you pass away. It can also be used to state who you would like to look after any of your children under 18 should they lose both parents.
If you die without a will in place the “rules of intestacy” will apply. This means your estate will be shared out between your family members according to a strict order set out in law depending on the value of your estate and which family members survive you. This may mean that your assets end up passing to people who you’d prefer not to inherit from you for whatever reason.
If you have minor children (under 18) and there is no surviving parent, it could be that social services will have to decide where to place your children, even if only temporary, if no guardian has been appointed. A guardian is the person you choose and name in your will to look after your children if the worst happens.
Executors are the people you choose to stand in your shoes and deal with your estate after you are gone. Their duties include:
Locating all your assets
Paying your funeral expenses, any outstanding debts and any tax payable
Applying for probate if necessary
Dealing with the sale of any property or assets as needed
Making sure your estate is distributed to the beneficiaries
You need a minimum of 1 and up to a maximum of 4 can act at the same time. If you have more in mind, you can name those as reserve executors.
A trustee’s role differs from an executor but it is common to appoint the same people in both roles. A trustee will manage any ongoing trusts that are created in your will. Therefore, for example, the executors will deal with the assets that need to go into a trust, and then the trustees will take over the responsibility of looking after those assets and managing the trust for the beneficiaries.
You can change your will at any time as long as you have the mental capacity to do so. Reasons for needing to change your will could be:
If you become widowed
If you divorce (getting divorced does not automatically take your ex-spouse out of your will)
If you marry/remarry (any will you have made before this will be revoked by marriage so you won’t have one!)
If you have children/more children
If somebody named in your will dies before you
If you don’t make a will, you have no say about what happens but there are some very important reasons for making one:
If you have children under the age of 18
If you are unmarried and want to make sure your partner is looked after when you die
If you have a property you want to leave to someone when you die
If you want to provide for someone not related by blood, a stepchild for example
If you want to save your family the stress of sorting out your estate when you die by making it very clear what your wishes are
If you are concerned about paying inheritance tax
If you have very specific funeral wishes
If you own or part-own a business
Yes it does, if you are unmarried then your partner will not automatically inherit anything from you without a will in place, regardless of how long you have been together.
Most people with young children already have a good idea of who they would choose to look after their children should the worst happen. The main things to consider are:
The relationship they have with your children
Where do they live, are they near? Would your children have to relocate?
Their own personal circumstances and finances
Yes they can and it’s quite common to name people who will be inheriting your estate as the people who deal with it also.
No, you can appoint your family or friends as executors or trustees as long as they are over 18 and have mental capacity. If you have a complicated estate you may want to consider using a professional such as a solicitor or a trust corporation, but they will charge a fee for their services.
There are a number of ways a will can be drafted. Here at 4 Probate and Wills, we have adapted our services to offer face-to-face appointments, either home visits or in our office (local area), over the telephone, by video call, or online.
The provision of face-to-face appointments is of course subject to strict government guidelines under the current COVID-19 situation.
We’re here to help
For more information, take a look at the different types of LPA. When you’re ready to proceed, get in touch using the contact form below and we’ll help you to create Lasting Powers of Attorney to suit your individual needs and preferences.