Wills, Probate and the Administration of Estates

It is a matter of some surprise that a great many people in this country, including many who have taken considerable care in the ordering of their affairs during their lifetime, have never made a will. Where a person dies without having made a will, that person is said to have died intestate, and his or her estate falls to be distributed in accordance with the rules laid down by the Succession Act 1965 rather than in accordance with his or her own wishes. Those rules may or may not produce the result which the deceased would have wanted. The making of a will is a straightforward matter which need not be expensive and which in most cases requires no more than a single appointment at our office.

When taking instructions for a will we will discuss with the client the extent and nature of his or her assets, the persons whom he or she wishes to benefit, the appointment of executors and, where there are young children, the appointment of guardians and trustees. We will advise on the legal right share to which a surviving spouse is entitled under the Succession Act 1965 and on the position of children, and we will draw attention to any features of the proposed disposition which might give rise to difficulty, dispute or an unnecessary burden of tax. The will is then prepared, executed in our presence in accordance with the formalities required by law, and retained in safe keeping at our office without charge unless the client wishes otherwise.

Reviewing an existing will

A will is not a document which should be made once and forgotten. Marriage, save in limited circumstances, revokes a will. The birth of children or grandchildren, the death of a beneficiary or an executor, the sale or purchase of property, the receipt of an inheritance and the passage of years may each render a will out of date or unsuitable. We would recommend that a client review his or her will every few years and on the occurrence of any significant change in family or financial circumstances. Where changes are required these may in a simple case be effected by a codicil, although in most instances it is preferable to make a fresh will.

Administration of estates

Following a death the assets of the deceased must be gathered in, the debts and liabilities of the estate discharged, the appropriate tax returns made and the balance distributed among those entitled. Where the deceased left a will, a Grant of Probate is ordinarily extracted by the executors named in the will. Where there was no will, a Grant of Letters of Administration is extracted by the person or persons entitled to take out the grant in accordance with the order of priority laid down by the Rules of the Superior Courts. In either case the papers must be prepared and lodged in the Probate Office or in the appropriate District Probate Registry.

We act for the personal representatives of estates of every size, from the modest estate consisting of a dwellinghouse and a deposit account to substantial estates comprising agricultural land, business interests and investments. We are conscious that those who act as executors are very often close relatives of the deceased who are dealing at the same time with a bereavement, and that the process can appear daunting. We therefore attend to as much of the work as the personal representatives wish us to attend to, and we keep them informed as matters progress. The time taken to administer an estate varies considerably according to its nature. Where there are difficulties concerning title to property, foreign assets, missing beneficiaries or a dispute among family members, the process can be considerably prolonged.

Enduring powers of attorney

An enduring power of attorney is a document by which a person, while of sound mind, appoints another person to manage his or her property and affairs, and in certain respects to make personal care decisions, in the event that he or she should later become incapable of doing so. The document takes effect only upon registration, and only where the donor has become mentally incapable. The making of an enduring power of attorney requires the involvement of a solicitor and of a registered medical practitioner and is subject to a number of statutory safeguards, including the requirement that notice be given to specified members of the donor's family. We would encourage anyone making a will to give consideration at the same time to whether an enduring power of attorney would be appropriate.

Taxation

Gifts and inheritances may give rise to a liability to capital acquisitions tax on the part of the beneficiary, subject to the thresholds and reliefs applicable at the relevant time, and the disposal of assets by an estate may give rise to other tax consequences. Reliefs exist in respect of agricultural property, business property and, in certain circumstances, a dwellinghouse. The rules are detailed and are subject to change in each Finance Act. We will advise in general terms on the position and, where the matter is one of complexity, we will work with the client's accountant or tax adviser.

To make an appointment in relation to a will, a probate matter or an enduring power of attorney,
please telephone the office at (020) 912 0450 during office hours.

The contents of this page are for general information only and do not constitute legal advice.