Wills and probate solicitors in Ferndown

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Wills and probate

It was Benjamin Franklin who first stated that the only two certainties in life are death and taxes. We all know we're going to die, but few of us like to ponder our mortality to any great degree.

This is probably why a worrying 70% of people in the United Kingdom do not have a current Will.

At Kiteleys we see making a Will as a very positive step. It presents an opportunity, not only to decide who will benefit from your assets, but also to select who will actually deal with your affairs. In addition it is an opportunity to examine your current position and to address any concerns you may have in respect of the payment of care home fees or Inheritance Tax.

For more information on how we can help you please contact Sue Fletcher on 01202 299992.

Care home fees and the family

If you live in England and have more than £23,000 in 'capital' you will be assessed as being able to meet the full cost of your care.

If you move into a care home permanently, the Local Council may count your home as 'capital' from 12 weeks after you arrive there. However, your home won't be counted as 'capital' if certain close relatives (including your husband, wife or civil partner) still live there:

Your Local Council may choose not to count your home as 'capital' if your carer lives there.

What can you do to keep your home?

Many couples own their property as 'Joint Tenants' so it passes automatically on the first death to the survivor - regardless of the provisions of a Will. The main consequence of this is that if the survivor subsequently needs to enter a nursing home and is assessed as being 'self-funding' then the full value of the property (subject to any allowances) would be taken into account.

It is possible to make significant savings by 'severing' the Joint Tenancy and executing a 'Property Protection' Will. This is a simple procedure following which each party owns a 50% share of the property. This share can then be 'gifted' by Will, for example to children, to avoid the survivor owning the whole of the property. The survivor would however be given an interest in the property which means they could live in the house for the rest of their life if they wished.

How does this work in practice?

Mr and Mrs Smith own their house as 'Joint Tenants' and it has a value of £200,000. Mr Smith passes away so the property passes automatically to Mrs Smith. Shortly after her husband's death Mrs Smith enters a care home and is assessed as 'self-funding'. After 12 weeks the value of her house is taken into account giving Mrs Smith £200,000 in 'capital'. As a result Mrs Smith is required to pay for her care home fees (on average this could be £540 per week) until only £23,000 remains. From that point she is required to pay a contribution towards the fees until only £14,000 remains after which time her fees are met by the Local Council. Upon her death Mrs Smith's children inherit £14,000.

Mr and Mrs Jones also own a house with a value of £200,000. On the advice of their solicitor they 'sever' the joint tenancy and so hold the property as 'Tenants in Common'. When Mr Jones passes away, Mrs Jones can continue to live in the house for as long as she wishes. However, after a while she enters a care home on a 'self-funding' basis and has 'capital' from the house of £100,000. The house is sold and under her husband's Will his half share is divided equally between their children. Like Mrs Smith, Mrs Jones pays full fees until £23,000 remains and then a contribution until only £14,000 remains. The Local Council then pay the fees. Upon her death Mrs Jones's children inherit £14,000 in addition to the £100,000 they received when the house was sold.

Help with managing your affairs

Most of us know someone who has become incapable of managing their affairs - either as a result of an accident or through illnesses such as Alzheimers Disease or dementia. The impact of this on family members can be very stressful. It can also be very costly.

The Mental Capacity Act 2005 makes provision for people to plan ahead and to choose someone to manage their finances and property should they become incapable. Someone can also be appointed to make health and welfare decisions. This is done through a Lasting Power of Attorney (LPA). Prior to the Mental Capacity Act coming into force similar provision could be made through the creation of an Enduring Power of Attorney (EPA).

Enduring Powers of Attorney

Before 1 October 2007 it was possible to appoint a trusted person (or persons) as 'Attorney(s)' using an Enduring Power of Attorney (EPA) form. Enduring Powers of Attorney executed before 30 September 2007 are still valid (providing they were correctly executed) and can still be used. Where the 'donor' becomes mentally incapable the EPA must be registered with the Public Guardianship Office.

Kiteleys Solicitors can deal with the whole of the registration process on your behalf including the notification of relatives. Our charges for dealing with the registration will be £250 plus VAT. In addition there is a Court Fee of £120.

Property and affairs LPA

The creation of a property and affairs LPA enable someone you trust (the attorney) to make decisions on your behalf about your property and affairs. Before it can be used the LPA must be registered with the Office of the Public Guardian (OPG). It is currently taking the OPG approximately 3 months to register LPA's.

Personal welfare LPA

A personal welfare LPA allows the person(s) you have chosen as your attorney(s) to make decisions on your behalf about your personal welfare, eg where you live or what medical treatment you receive. Again, the personal welfare LPA can only be used once it has been registered at the OPG and you have become mentally incapable of making decisions about your own welfare.

Making a lasting Power of Attorney

There are two separate forms for making a property and affairs LPA and a personal welfare LPA. Both are available from the OPG and can be downloaded from their website. To create a valid LPA it is necessary to have a 'certificate of capacity' drawn up by an independent third party called a Certificate Provider.

The LPA must be registered at the OPG before it can be used. The OPG charge a fee of £120 for registering each LPA i.e. their fee will be £240 if you have both a property and affairs LPA and a personal welfare LPA. Depending on your financial situation it may be possible to claim an exemption from the fees.

At Kiteleys Solicitors we offer a comprehensive service which includes the preparation of the LPA, acting as 'Certificate Providers' and dealing with the registration process including advising on whether any exemption can be claimed in respect of the OPG registration fees and, where relevant, applying for this. Our fees for this service are £500 plus VAT (plus the OPG fee when payable).

Appointment of a Deputy

If someone becomes incapable of managing their affairs and they do not have either a Lasting Power of Attorney or an Enduring Power of Attorney in place then it may be necessary to apply to the Court of Protection for the appointment of a 'Deputy'. In these circumstances the Court will appoint a suitable person (usually a close relative) as 'Deputy' and will make a 'Court Order' to enable the Deputy to manage the finances of the incapable person.

At Kiteleys Solicitors we understand how difficult it can be simply dealing with the day-to-day care of a loved one who has become incapable without having to deal with a complex application to Court. We are able to provide clear advice at the outset on the costs implications of making the application and on the long-term responsibilities that the 'Deputy' will have. The solicitors' fees for making the application are fixed by the Court and are currently £825 plus VAT. (Alternatively, the file can be submitted to the Court for the costs to be assessed).

We'd be happy to answer your questions! We'd be happy to answer your questions! Call us in on 01202 299992, or 02380 909091, or 01202 863933, or enquire online.

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