A question that our probate team often get asked is “Can we get a copy of a Will after a person has died?”.
Can I get a copy of a Will?
If an estate requires a Grant of Probate then the deceased’s original Will is submitted to the Probate Registry and is retained there. The Will then becomes a public document and anyone, upon payment of a small fee, can apply for a copy of it.
You can find out if a Grant of Probate has been obtained, and order a copy of a Will, by using the Gov.UK search tool here:-
Following the successful refund scheme for registration fees in relation to Lasting Powers of Attorney, the Ministry of Justice have now announced that some Court of Protection fees are also to be reduced. An internal review found that the fees are higher than necessary to recover court costs. Therefore, a refund scheme will be set up to reimburse people the amounts they have been over-charged. Details of the scheme are yet to be published.
• 98% of people in the West Midlands leave important health and welfare decisions to chance
• 71% would like a family member to make medical and care decisions on their behalf, in the event of mental incapacity
• 80% of people in the West Midlands are worried about dementia and losing the ability to make decisions for themselves
• 81% haven’t discussed end of life medical and care wishes
• 36% admit to having made no provisions at all, such as a will, Lasting Power of Attorney (LPA), pension or funeral plan
Coalition of partners join forces to warn of ‘incapacity crisis’ led by SFE, including Baroness Ilora Finlay, Alzheimer’s Society, Dying Matters, Age UK, Anchor, and SOLLA
A new report from SFE (Solicitors for the Elderly) and independent think tank, Centre for Future Studies, reveals the UK is leaving medical and care preferences to chance. The report looks at the ever-increasing number of people living with dementia which, combined with the failure to plan ahead for mental incapacity, exposes a looming crisis.
The study found 98% of people in the West Midlands have not made necessary provisions, should they lose capacity from conditions like dementia. A further 36% admit to having made no provisions at all for later life, including a will, pension, funeral plan or LPA.
The research found that 80% of people in the region are worried about dementia and losing the ability to make decisions for themselves, but 81% have not spoken about, or even considered, personal medical and care end of life decisions.
A staggering 70% of people incorrectly believe that their next of kin can specify what they would have wanted if they are no longer able to and 71% of the public would like a family member to make medical and care decisions on their behalf.
69% of people incorrectly believe that their spouse has the power to do so
80% of those in the West Midlands are worried about becoming mentally incapacitated and losing the ability to make decisions for themselves
60% believe that being on the NHS organ donor register ensures that organs are donated following death, however this is not the case.
Only 2% of Britons surveyed in the West Midlands by SFE have a health and welfare LPA in place.
SFE is urging the nation to act now to avoid this incapacity crisis by planning ahead in case of mental incapacity.
It is crucial to have a conversation with loved ones in order to make specific medical and care wishes known – such as, where you are cared for, whether you wish to be an organ donor and whether or not you would want to be resuscitated – otherwise there is a risk your preferences are not taken into account.
The campaign calls on people to act now and start a conversation with loved ones about end of life topics to remove the stigma surrounding the discussion.
Lakshmi Turner, Chief Executive of SFE, said:
“Most of us do not like thinking about, let alone talking about, death, disability or disease, despite the fact that it touches all our lives – but it is essential that we do so.
“Whilst it’s great that more and more of us are putting wills in place and establishing plans for finances and assets, far too few of us are planning ahead for our health and care needs and wishes, leaving this to chance.
“It’s time to set the record straight. Planning ahead by talking to family or friends shouldn’t be seen as doom and gloom, it’s about having a positive conversation about welfare, empowering your loved ones and making the decision-making process easier for everyone.”
Professor Ilora, the Baroness Finlay, states: “With decades of experience working and campaigning around palliative medicine, the low numbers of health and welfare lasting power of attorneys is of concern.
“When a person loses capacity to take decisions, it is sad to see families and professionals struggling to try to determine what a person would have wanted. Delays and distress can be avoided by appointing someone to speak for you when you can no longer speak up for yourself.
“Discussing medical and care wishes ahead of time ensures that care can respect an individual’s wishes, with the respect they deserve – even when it comes to fulfilling wishes after death, such as organ donation.
“It’s important to have an open discussion about future illnesses and possible incapacity. I urge the millions of people who haven’t given loved ones the opportunity to listen, to act now.”
Jeremy Hughes CBE, Chief Executive of Alzheimer’s Society
“We welcome this initiative. Lasting powers of attorney for health and welfare too often get overlooked.
“People with dementia have the right to make choices about their care, just like anyone else. Making someone they trust their attorney for health and welfare is one of the ways people can do this. A health and welfare LPA provides reassurance to them and the act of creating one can start useful conversations about the future with family and friends.”
An increasing number of people are worried about the possibility of needing care in the future and the financial impact that may have upon their assets. Protective Property Trusts in your Will can enable a couple to save part of their property to pass onto their family. These types of Wills are also sometimes called Property Trust Wills.
What is a Property Trust Will?
A property trust is a type of legal structure that can be included as part of your Will and is designed to protect your share of jointly owned property from being included in financial assessments that are carried out to determine how much you should contribute to long-term care fees. The structure can also be useful should you be worried that your spouse might re-marry in the future by protecting your share of the property for your family.
A property trust will covers a share of a jointly-owned property to ensure that a surviving spouse or partner can still benefit from their deceased partner’s share in the property even when they are gone.Bottom of FormShould the survivor have to go into long-term care, their deceased spouse’s share will be protected – and can be passed onto family members upon their death.
Most couples when making a Will, leave their assets directly to their partner. Should the partner require care, this can mean that there are less assets to pass onto the family after their death.
For this reason, Property Will Trusts can hold assets on behalf of the partner to guard against deductions made due to care costs.
How Does It Work?
The best way to explain how Property Trust Wills work is through an example:-
Let’s say Mr and Mrs Marr jointly own their home. They want to ensure that their respective shares will be passed to their two children when they pass away. They want peace of mind that if the survivor of them needs care, at least half the property can be passed to their two children.
If Mr Marr dies before his wife, his half share in the property will go into the Property Trust set up in his Will – with the remainder of his estate left to Mrs Marr. She then has the right to occupy the property or move house if she wishes. If she requires long-term care in the future, her Husband’s share of the property remains in trust and cannot be taken into account during any financial assessments to determine what she will need pay towards her care.
In short, 50% of the value of the property cannot be taken and used to pay for her care fees.
This type of trust covers every eventuality. Even if Mr and Mrs Marr’s children divorce, predecease them or declare bankruptcy, the surviving spouse still retains occupancy and their share in the property is fully protected. Upon Mrs Marr’s death, the half share of the property is transferred to her two children, even if Mrs Marr has used all her assets to pay for care.
What Does This Cost?
Depending on your circumstances, this type of arrangement can cost from £400 – £525 + VAT.
Four Oaks Legal Services can assist if you feel a Property Trust Will might suit your circumstances. Please contact us on 0121 308 8231.
One of the frequent questions I get asked as a Solicitor is whether a parent should give their home to their children. My clients have many reasons in mind as to why they might want to do this from ensuring the house passes to the children to attempting to avoid paying for care or just getting the children to take over responsibility for the property so they don’t have to worry about maintenance issues any longer.
Providing you have no mortgage on your property, you are at liberty to gift your home to your family if you want to do so. But there are a few issues you may need to bear in mind before making that decision:
You will no longer be the legal owner of your home
If you gift your home, you need to consider the possibility that your child may divorce. If this happens, they may be forced to sell your home as part of those proceedings. Equally, your son or daughter’s ex-spouse would have a legal claim against their estate, which would also include your home.
If your child has financial problems and had an issue with bankruptcy, your home would form part of their estate. This could then potentially be claimed by creditors seeking to claw back money from their estate.
If your child predeceases you, their beneficiaries would then become the owner of your home.
If you wanted to obtain equity release on the property, you would be unable to.
If you needed to release some equity from your home, perhaps to help pay for adaptions if your health needs changed, you would not be able to do this. As you wouldn’t own the property, you can’t take equity release on it.
You need to consider Inheritance Tax
You may think that if you transfer your home to your children, then it won’t form part of your estate for inheritance tax purposes should you survive 7 years after making the gift. Unfortunately that is not the case. Due to the reservation of benefit rules, if you “give” away an asset that you continue to use, it is still treated as part of your estate for inheritance tax purposes. By gifting your property to you children during your lifetime, you could also lose the new residential nil rate band allowance as well.
You need to consider Capital Gains Tax
Before gifting your property, you also need to think about other tax, such as capital gains tax. This applies where a property is not a “principal primary residence” and could apply if, for example, your child is not living in your home when it is transferred into their name but has increased in value when they come to sell it.
Will I avoid care home fees?
You need to tread carefully before passing your home onto your children for this reason. The Local Authority could view this as “deliberate deprivation of assets” to avoid having to pay residential care home fees.
Put simply, transferring your home to your children in this way may be seen as an attempt to conceal funds to avoid paying for care.
If this is deemed to be the case, the Local Authority can reverse the transfer of ownership back to you or they can include the value of the home in your financial calculation anyway but including it as “notional capital”.
So gifting your home involves a number of considerations and a decision to do this should not be taken lightly. I would recommend seeking advice from a specialist Solicitor about these issues beforehand.
Rebecca Head is a private client Solicitor with many years experience and can be contacted on 0121 308 8231.
Four Oaks Legal Services were once again shortlisted in the Business Networking Awards in the category “Professional Business of the Year”, along with a number of other prestigious local companies.
The Business Networking Awards takes place each year and brings together businesses from Sutton Coldfield, Tamworth and Lichfield. The event took place this year at Drayton Manor on Saturday 7th April.
Four Oaks Legal Services were delighted for the second year running to be the only business in their category to be awarded a”Highly Commended” status.
Director Stuart McIntosh and Solicitor Joanna Parkin attended the entertaining evening celebrating the success of local businesses.
Four Oaks Legal Services would like to thank everyone involved with the Business Networking Awards for all their hard work and congratulate all those who were recognised on the evening.
We reported back in July 2017 that the Office of the Public Guardian would be making partial refunds to people who had paid to register their Lasting Powers of Attorney between the 1st April 2013 and the 31st March 2017. This was due to the Office of the Public Guardian making savings on their operating costs which weren’t passed onto the public at that time.
The Office of the Public Guardian have now announced that either the donor of the power or their appointed attorney can make the application for a refund. Full details can be found on the Government website https://www.gov.uk/power-of-attorney-refund but applications can be made online or by telephoning the Office of the Public Guardian on 0300 456 0300 (choose option 6).
What Might I Be Entitled To?
How much you get will depend on when you paid the fee. You will also be entitled to 0.5% interest on the sum due.
When you paid the fee
Refund for each power of attorney
April to September 2013
October 2013 to March 2014
April 2014 to March 2015
April 2015 to March 2016
April 2016 to March 2017
You’ll be entitled to half the refund if you paid a reduced fee.
The Office of the Public Guardian has estimated there will be some £89 million pounds to be refunded, so they are estimating it will take up to 12 weeks to process the refunds.
Finally, if the donor of the power has since passed away, a refund can still be claimed.
For further information, please contact us on 0121 308 8231.
Statistically speaking, some 60% of the population haven’t made a Will. Of the 40% that have, around 20% of those need to review those provisions. Scary, isn’t it?
For parents with children who have disabilities, there are no specific statistics on how many of them haven’t made a will but in my 14 years’ experience as a wills Solicitor, I would guess it it will be an even higher percentage than 60%.
Over the years, I’ve given numerous talks on behalf of Mencap and other organisations, such as schools and charities, who support the parents of children with disabilities. I’ve talked about the issues which surround making a will when you have a child with disabilities and I’ve made many wills for parents in this situation, ranging from children with very mild to moderate disabilities to those who have very severe disabilities. In talking to many of these parents over the years, I’ve gained an insight into why many don’t act to make wills. In order to help other parents who may be in a similar situation, I thought I’d share those reasons with you, together with my responses.
Top Reason – the Ostrich Approach
No-one likes to think of a time when they won’t be here for their children but for parents of children with disabilities, this can be even harder to think about. For most of us, when our children are adults in the eyes of the law, they can take care of themselves and whilst we may not be around, they will manage. For those parents of children with disabilities, especially those with severe disabilities, it can be a real worry to think about who will care for your child as they may never be in a position to care for themselves. This tends to mean that parents just don’t think about it as it’s too upsetting for them to do so. They take the ostrich approach of sticking their head in the sand and no planning gets done.
Answer: Whether you make plans or you don’t, the inevitable will happen. It is surely better to have a will in place setting out your plans for your child, so that you can rest easy in the knowledge you’ve taken care of everything that you possibly can for them.
Second Reason – my child doesn’t understand the value of money
We all want to pass on our hard-earned money to our children and give them as much of a head start as possible but, when you have a child with a disability, it may not be as simple as that. If your child does not understand the value of money, this can be a huge problem as it may not be appropriate to leave them a large inheritance that they will not be able to manage. They may have no, or limited, skills to manage the funds or they may use it inappropriately. There is also the risk that they may become susceptible to third parties who may want to relieve them of your hard earned money.
Answer: Trusts can be used to help provide for children who cannot manage funds themselves.
Third reason – my child will lose their benefits, there’s no point me giving them anything
Some children with disabilities may be reliant in the long term on means tested benefits. Therefore if they inherit money, they will have to declare this to the DWP and they may then lose those benefits. Many parents feel that they are giving with one hand and the DWP are then taking it away with the other hand. Some parents, therefore choose not to do anything as they can’t see the point in leaving anything to their child in this situation.
Answer: Certain types of trust can be used to help provide for children who are in receipt of means tested benefits. The funds are owned by the trust and not the child, so their benefits are not affected, even though the trust funds can be used for the child.
Fourth reason – I just don’t know where to start thinking about this
Many parents of children with disabilities feel overwhelmed at the thought of making a will because they don’t know where to start or how they will resolve the issues in making appropriate provision for their child. So instead of seeking advice, they do nothing.
Answer: a good friend once said to me “You don’t know what you don’t know”, which is some of the best advice I’ve ever been given. How can you expect to make decisions about your child’s future if you don’t know what the law allows you to do and what options are open to you. Of course, you will feel confused and unsure. If my car makes a strange noise, I don’t lift the car bonnet and look at it thinking “How can I fix this? I don’t know how to do it!”. I call the local garage and have experts look at it and tell me what my options are. It’s really the same with making a will. Have a chat about your situation with someone who specialises in preparing wills for families like yours and they will give you the options that are open to you. Once you know the options, it’s generally very easy to make a decision.
If you are a parent of a child with a disability, or you know someone who is, and you haven’t made a will, I can help. I offer an initial no obligation, no charge meeting to discuss your situation and to advise you about the options available to you, to help you make decisions so that you can begin the journey to properly protect your child and family.
Rebecca Head of Four Oaks Legal Services
Rebecca Head is a Solicitor and Director of Four Oaks Legal Services and can be contacted on 0121 308 8231.
As a Solicitor who deals with elderly client matters, I come across some really sad situations for families. However, taking advice and acting on it, at the right time, can mean a difficult situation is made slightly easier and not a whole lot worse for the families involved.
Rebecca Head of Four Oaks Legal Services
I visited a Tamworth couple recently at their home. They had been married for many years and sadly the Husband had vascular dementia. His Wife had called me previously when her Husband was in the early stages of diagnosis of the disease and whilst he was still capable of making his own decisions. I’d advised her that her Husband should put a Lasting Power of Attorney in place to cover his Property & Affairs as soon as possible, as with vascular dementia, a decline in mental state can happen more quickly than with other types of dementia. I was particularly concerned about this couple as many of the family assets were held in her Husband’s sole name, including their family home. The lady was very reluctant to talk to her Husband about these matters and therefore decided not to. She contacted me again some months later to visit them to discuss matters with them both.
The meeting was prompted by the fact that the Husband’s condition had deteriorated considerably. The lady was attempting to care for her Husband at home but the house they lived in was a large house. She felt that if they moved to a small bungalow then she would be able to avoid her Husband having to be cared for in a residential setting. She had seen a bungalow that would be ideal for the parties needs and wanted to sell their home but obviously could not do this without her Husband’s consent.
After a thorough assessment about his understanding, it was apparent that the Husband was no longer capable of making a Lasting Power of Attorney. A person must understand the nature of their actions to put one in place. I explained to the Wife that she must now make an application to the Court of Protection to ask the Court to appoint her to manage her Husband’s affairs and to give her authority to sell her own home. Such applications can take several months and are very costly, often costing several thousands of pounds. This therefore meant that the family were unable to buy the bungalow they wanted and that would have suited their needs. Had they taken steps earlier to put a Lasting Power of Attorney in place, this incredibly difficult situation would have been avoided. Whilst it may not have solved the issue that the Husband was poorly and would deteriorate, it would have provided the family with more options and less stress at a crucial time.
Please contact Rebecca for a no obligation discussion, if you or your family may be affected by these issues.
Congratulations to TWCSC for Winning the Community Group category at the Tamworth Business and Community Awards on Saturday 7th October 2017. Stuart McIntosh is Chair of the Trustees for TWCSC which is a registered charity that helps to support people affected by all cancers and other chronic illnesses. The Centre is run by a team of dedicated volunteers providing essential support to local people.
TWCSC host regular drop-in sessions where members of Four Oaks Legal Services and Four Oaks Financial Services provide free initial advice to those with any queries or problems. We are always supplied with an endless supply of coffee and cake and made to feel incredibly welcome.
Congratulations again and well done from all at Four Oaks Legal Services
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