FAQs

A guardian is someone who has the legal right and responsibility to take care of another person who cannot manage their own affairs. This often applies to children whose parents have passed away. Guardians ensure the well-being of those under their care and may also protect certain assets or interests. For instance, a guardian can be the custodian of a child’s welfare or serve as the protector of a specific cause or property.

Appointing a guardian is a crucial decision, especially if you have minor children. Here’s why it’s essential:

Child Welfare: If you pass away, a guardian ensures the well-being of your children. They take on the legal responsibility to care for your children until they turn 18.

Your Choice: By appointing a guardian in your will, you have a say in who will look after your children. You can choose someone you trust and believe will act in their best interests.

Parental Responsibility: Guardians gain parental responsibility, allowing them to make decisions about your children’s health, education, and living arrangements.

Avoid Court Decisions: Without a designated guardian, the courts may decide who cares for your children. Appointing one ensures your wishes are respected.

Financial Protection: Guardians also manage any assets left for your children, ensuring their financial well-being.

Choosing a guardian is a deeply personal and significant decision. The person you select will assume parental responsibility if the guardianship clause in your will becomes effective. This means they will be legally responsible for your children and empowered to make decisions on their behalf regarding education, health, and finances. Therefore you need to give thought to the following key points:

1. Who is going to genuinely act in the best interest of your child/children and who would be in a position to raise them as you would want, look after them and ensure they have everything they need to grow and develop?
2. Think about the lifestyle, background and character of the potential guardian. This should include their age, health, fitness and financial stability as this is important both for the guardian themselves as well as the future of your child/children.
3. Make sure you have had open and honest discussions with any future guardian to be sure they are not only willing to take on the responsibility, but that they understand your wishes and agree with them.

A lasting power of attorney (LPA) is a legal document that allows you (the ‘donor’) to appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf. The term ‘lasting’ indicates that your LPA remains valid even if you lose the ability to make decisions independently. LPAs serve as practical and versatile tools. Depending on the terms outlined in the LPA document, they grant your attorneys a broad range of decision-making powers. Some LPAs can also be utilised while you still have the capacity to make decisions for yourself.

Lasting Power of Attorney (LPA) for Property and Financial Affairs empowers your attorneys to make decisions regarding your finances and property. This includes tasks like paying bills, managing bank accounts, selling property, and handling investments. Notably, with this type of LPA, you can specify that your attorneys can act even if you still have mental capacity. This flexibility proves valuable when you no longer wish to manage certain financial matters yourself. Additionally, it assists in situations where you’re leaving the country but still have assets requiring management.

Lasting Power of Attorney (LPA) for Health and Welfare empowers your attorneys to make decisions related to your health and well-being. This encompasses aspects of your daily life, such as dietary choices and clothing preferences. Additionally, it covers medical treatment decisions, care home arrangements, and the option to refuse life-sustaining treatment.

The terms you specify in your LPA document define precisely what your attorneys can or cannot do on your behalf. You might choose to limit your attorneys’ powers in certain ways. For instance, you could authorize them to handle only a portion of your finances. Alternatively, you may prefer that attorneys appointed under a Health and Care LPA are not allowed to make decisions regarding life-sustaining treatment on your behalf.

While there is no strict limit on the number of attorneys you can appoint in your LPA, we recommend having at least two. This precaution ensures that if one attorney becomes unable to fulfill their duties, there will always be another attorney available to act on your behalf. When choosing your attorney you should consider 1) would they act in your best interest 2) do they have the capacity to carry out this role, mentally and physically 3) have you discussed this with them to ensure they are willing to take on this role and happy to act in your interests throughout.

You can cancel or revoke all or part of your LPA at any time, even after the LPA has been registered. The only requirement is that you must have the mental capacity to make this decision at the time.

Executors and Trustees play crucial legal roles in relation to wills and trusts. These roles come with significant powers and responsibilities. When creating a will, you must carefully consider whom to appoint as your executor(s). They will be instrumental in managing your property and ensuring it is passed on to your loved ones after your passing. Appointing trustees may not be necessary for everyone. You’ll only need to do so if you establish a trust during your lifetime or if your will creates any trusts. Nevertheless, it remains essential to select the right individuals as trustees to effectively oversee and manage trust assets.

Executors manage the affairs of a deceased person based on their will. Key duties include notifying beneficiaries, filing the will with the probate court, collecting and managing estate assets, assessing estate value, settling debts, and distributing assets to beneficiaries.

When considering whom to appoint as an executor, there are only two straightforward criteria: 1) Mental Capacity: The person must be of sound mind. 2) Age Requirement: They should be at least 18 years old. Additionally, there is no issue with appointing a beneficiary from your will as an executor and you have the option to designate a corporate entity, such as a law firm.

The responsibilities of trustees generally fall into two main areas: 1) Custodianship and Preservation: Trustees hold and safeguard the trust property, ensuring its value is maintained. 2) Adherence to Trust Terms: Their duty is to preserve the assets for the benefit of the beneficiaries. Trustees must follow the terms outlined in the trust document, ensuring that the trust serves its intended purpose. Different types of trusts exist for various purposes, and the specific powers and obligations of trustees can vary significantly.

When considering whom to appoint as Executors and Trustees, it’s essential to approach the decision thoughtfully. Unsuitable appointments could potentially disrupt estate administration or trust management. In rare cases, mismanagement might lead to costly legal disputes, affecting the value of your estate or the trust assets passed on to beneficiaries. Consider the following:

1. Think about your reasons for appointing someone and how they may feel about the responsibility. Are they trustworthy, reliable and would they take the position seriously? Also do they have the capacity to take on this role, is it a simple or complex estate?
2. Are there any relationship issues between your chosen appointment(s) and the beneficiaries of the will which could result in a conflict or create difficulties?
3. Discuss your intentions with the chosen appointments to ensure they are aware and prepared for their roles. This can avoid any issues down the line as they can decline their appointment in writing so be sure of their willingness beforehand.
4. Make sure your appointments are outlined in the legal documentation promptly so as to give effect to your intentions at the earliest opportunity.

If you need to appoint both Executors and Trustees in your Will, it is common to appoint the same people to carry out both roles.

Following a person’s death, a necessary and often stressful task is dealing with the assets, accounts and liabilities that your loved one had and ensuring that any wishes in their will regarding the distribution of assets are followed. We understand how difficult it is to lose a loved one and it can sometimes be made more difficult if you are responsible for managing that loved one’s estate. We have a dedicated team who will remove the stress and pressures of dealing with the probate process.

Where there is a will, the person or people who are authorised to deal with the estate will normally be specifically named. These people are referred to as “executors”. The process of collecting information about the assets and liabilities, closing accounts and distributing assets as directed by the will is referred to as estate administration.

Where the person who died had significant assets, it is often the case that banks or other institutions will request sight of a “Grant of Probate” before they will release the monies they hold to the executors. Having a Grant of Probate is a way of proving that the executor was chosen by the person who died to administer the estate.

Gathering all the information about an estate that is needed to apply for a Grant of Probate can be difficult, confusing and time consuming, especially where records are not in order in relation to what accounts were held. This process can become even more complex where there are linked estates, taxation issues and many different types of assets held.
If you are the person left to manage the estate it can be difficult and our team are here to help you in whatever capacity you need, whether to manage the matter for you or assist you through the process. We understand every situation is different. We listen to what is needed and tailor our services to meet your needs. 

Where a loved-one passes away and there are concerns that their will is not valid, there may be a situation where the will is contested. We can help sensitively guide you through the process, whether this is in initiating a challenge to the will or responding to this.

A dispute surrounding the validity of a will can arise for various reasons and will often involve family members or other interested parties who have a stake in the outcome of the probate proceedings. This can often involve a breakdown in communication between the people involved. We work hard to prevent this from happening.

Dealing with a contested will can be emotionally and financially draining for all parties involved. It is important to make sure you have the correct legal support in this matter. We will help guide you through the process.

Obtaining a Grant of Probate or a Grant of Letters of Administration and dealing with the taxation of an estate are two linked, but distinct aspects of dealing with the affairs of somebody who has died. We can help you with both, bringing your attention to any taxation issues that should be considered.

Where assets are inherited as a result of a death, there is a transfer of wealth and there may be tax due. The most significant of these taxes is usually Inheritance Tax (sometimes known as estate tax). This is a tax imposed on the transfer of assets from an estate to the persons entitled to these (the “beneficiaries”).

Inheritance Tax is typically based on the total value of the estate and the tax rate may vary. There are certain allowances and exemptions that will reduce the rate of Inheritance Tax (or mean that no Inheritance Tax is due).

The availability of these allowances and exemptions depend on who is inheriting the asset, the type of asset, and the full value of the estate.
There will often also be Income Tax and Capital Gains Tax considerations following a death. This may be for tax years before death that had not yet been finalised, but also for the period of administration. Measures can sometimes be taken to minimise the amount of Income Tax or Capital Gains Tax that are payable by an estate while complying with legal requirements.

Get in touch with our team to seek advice on what is due and why, and for assistance with corresponding with HMRC to ensure these issues are fully dealt with in an efficient manner.

If a family member has died without a will, we can guide you through the often complex process of working out who is legally entitled to deal with the estate and who will inherit.

A person who dies without having created a valid will, is referred to as being “intestate”. When someone dies intestate, the distribution of their assets and the settlement of their estate are determined by an order of priority set in law. This order also determines who is authorised to deal with the estate (the “administrator”). This process is also followed where there is a valid will but this does not appoint an executor who is willing or able to act.

The administrator will be responsible for collecting information about the assets and liabilities, closing accounts and distributing assets (the process of which is referred to as estate administration). In order to close accounts, an administrator will often need a “Grant of Letters of Administration” in order to prove that they are the person legally entitled to be dealing with the estate.

Dealing with an estate where there is not a valid will is often a complex process, as significant details are needed about the family who survived the person who passed away. it is advisable for administrators to seek legal guidance to navigate their responsibilities effectively and in compliance with applicable laws. Our team are on hand to help you work through the details needed to determine who can deal with the estate, who will inherit and to navigate the process of applying for a Grant of Letters of Administration where this is needed.

A landlord or tenant dispute is a disagreement between a landlord and a tenant over issues such as rent, repairs, or deposits. Disputes can arise for a variety of reasons, including disagreements over the terms of a lease, the condition of the property, or the amount of rent owed.

In the United Kingdom, Section 8 usually refers to a possession notice that can be served on tenants if they have broken the terms of a tenancy at any point during an assured tenancy. It was introduced in Section 8 of the Housing Act 1988.

In the United Kingdom, a Section 21 notice is a legal document that a landlord can give to their tenant to begin the process of taking possession of a property let on an assured shorthold tenancy without providing a reason for wishing to take possession. It is also known as a Section 21 notice of possession or a Section 21 eviction.

A Section 21 notice can be used to evict tenants either after a fixed-term tenancy ends or during a tenancy with no fixed end date, known as a ‘periodic’ tenancy. However, there are certain circumstances under which a Section 21 notice cannot be used. If you have received a notice, getting advice is usually necessary.

A Section 21 notice must give tenants at least two months’ notice to leave the property.

You cannot usually evict a tenant without going to court, you must follow strict procedures to ensure that you are not guilty of harassing or illegally evicting your tenants. Should you be considering evicting your tenant without a court order, legal advice should be taken.

If your tenant has broken the terms of the tenancy, you can give them a Section 8 notice. If your tenant has not broken the terms of the tenancy, you can give them a Section 21 notice. If your tenant does not leave by the date specified on the notice, you can apply to the court for a standard possession order. If you are not claiming any unpaid rent, you can apply for an accelerated possession order, which may be quicker.