Articles, Blogs & News

March 2022

When do I need to review my Will?

Having a Will in place gives most people great peace of mind, but it is important to review the document from time to time to ensure that it still reflects your wishes.

Upon that review, you may decide that you want to distribute your estate in a different way or appoint someone else to act as your executor or as guardian to your children – this is especially relevant if that persons circumstances have changed.

It is generally recommended that you review your Will at least every three to five years, as well as in the event of certain life events.

Ending and Reviewing an LPA 

A Lasting Power of Attorney (LPA) is a document that gives legal authority to someone to deal with your affairs on your behalf, should you ever be unable to do this yourself.

It is recommended that everyone consider putting one in place so that, should anything happen, your loved ones have the reassurance of being able to look after you.

You can put two types of LPA in place, one in respect of your health and welfare and one in respect of your property and financial affairs. You can register it with the Office of the Public Guardian (OPG) so that it is ready to use, as and when needed in the future.

Over time you may want to change the arrangements you have made. We look at how you can alter or end a Lasting Power of Attorney once it has been registered with the OPG.

January 2022
Personal Items in

Personal chattels are personal possessions such as furniture, the contents of your home and cars.

Personal chattels are also referred to as tangible moveable property, ie, items that you own and use personally.

Items used mainly for business purposes are not classed as personal chattels, nor are money and investments.

If you have bought jewellery partly as an investment but you wear it as well, it will be considered a personal chattel.

For most people, their personal possessions will only form a small part of the value of their estate, however if they are not dealt with properly in a Will, they can cause serious disputes between family members.

While individual items may not be worth a great deal, when emotions run high after a death, people can often be upset if they do not receive something they believe they were promised or which has great sentimental value to them.

Division of Assets between Children in Wills

A recent report has found that only half of parents plan to share their estate equally between their children.
A report, carried out on behalf of Netwealth and The Money Whisperer®, found that there was a lack of understanding on the part of both parents and young adults in respect of finances and what might be inherited when the time comes.

October 2021

A Guide to setting up Lasting Powers of Attorney

 A Lasting Power of Attorney is an important document giving someone the authority to deal with your affairs, should you ever become unable to do so yourself.

There are two types of Lasting Power of Attorney (LPA), one that deals with property and financial affairs and one that deals with health and welfare. If you make a property and financial affairs LPA, you can register it for use at any time, should you wish to, so that your attorney can help you even if you still have the capacity to manage yourself. This can be useful if you want assistance, for example, by getting your attorney to go to the bank on your behalf. A health and welfare LPA can only be registered for use once someone has lost the ability to deal with their own affairs.

Choosing an attorney

You will need to decide whom you would like to act on your behalf, should it ever be necessary. You can choose one or more attorneys and give them consent to act independently or require them to act together. It is generally easier if attorneys are able to act independently.

You should choose someone whom you trust implicitly, and ideally someone who is younger than you, otherwise there is a risk that they may not be able to help you when the time comes.

Filling in the forms

Following completion of the LPA forms and they must be signed by someone who is able to certify that you have the mental capacity to understand what you are signing. You and your attorneys will also need to sign and you should list the names of people whom you wish to be told that you are intending to register an LPA. These people will be sent a form of notification. You can choose one or more people, but no more than five. This is a safeguard to ensure that you are not being unduly influenced into signing the LPA. If you do not have people whom you would like to be told, then it is possible for a second professional to provide a certificate confirming that you have the mental capacity to make the LPA.

Registering the LPA

The LPA forms will then be sent to the Office of the Public Guardian for registration. They will register the forms and send you a stamped copy for your records. The LPA is only valid once it has been stamped.

Once this has been done, you can store your LPA until it is needed. It could be placed with your own important papers or passed to your attorney for safekeeping.

It is not essential to register the LPA as soon as it has been signed, however it does mean that if you do this, it will be ready for use as soon as it is needed. Otherwise, there could be a delay while your attorney waits for the Office of the Public Guardian to process the forms, which is, at present, taking three months or more.

It also means that any errors on the form can be dealt with in advance of the time when the LPA is needed. If errors arise after the person making the LPA has lost capacity, then potentially they may be without an LPA if the errors mean that it is invalid.

Advance registration also gives relatives or friends of the person making the LPA the opportunity to raise any objections and to have discussions with the donor to try and avoid disputes arising.

Common Misconceptions about Wills and Probate

There are strict rules surrounding Wills and the administration of estates after a death, meaning that relying on some common beliefs could cause problems for your loved ones.

We take a look at some common misconceptions and what the true position is.

My spouse will inherit everything if I die

If you die without making a Will, then the Rules of Intestacy will govern who inherits your estate. If you have children, these rules provide that your spouse will inherit all of your personal possessions together with the first £270,000 of your net estate. The remainder of the estate will be split into two, with your spouse receiving one half while your children share the other half equally between them. This could mean that your spouse inherits substantially more than your children, which might not be what you want to happen.

Getting married will not affect the provisions made in my Will

If you marry, your Will automatically becomes invalid (unless you have made a Will specifically in contemplation of your marriage) and your estate will pass under the Rules of Intestacy. It is therefore important to make a new Will if you marry.

I can make alterations to my Will provided I initial them

This is not the correct way to alter your wishes and any amendments made in this way will not take effect. It is often best to make a new Will if you want to change some of the provisions. The new Will should state that it revokes all previous Wills.

Alternatively, if you want to make only a minor amendment, you could consider having a codicil drawn up and signed and properly witnessed then attached to the Will.

If I die, my family can decide who will look after my children

If you do not make a Will specifying who you want to be your children’s guardians, it will be for the court to decide who will look after them. Even if someone steps forward to take on this role, the court may choose someone else.

If you make a Will, you can set out who you want to act as guardian and also appoint trustees to look after any money you are leaving your children until they are at the age at which you would like them to inherit.

My home will pass to my spouse

What will happen to your home will depend on the type of joint ownership you have. If you own it as joint tenants with your spouse, then they will automatically own it, should you die. If you own it as tenants in common, then your share will pass in accordance with the terms of your Will or the Rules of Intestacy. This could mean that your spouse could be forced to leave the property if your share passed to someone else.

Making a Will is complicated and expensive

Making a Will can be quite straightforward and need not take long. It can also provide the peace of mind of knowing that you have provided for your family, should anything happen to you.

Writing a Will is generally inexpensive. If you do not have a Will, there is an increased risk of a dispute arising after your death. If your executors are forced to defend legal action, this could be extremely expensive and drain your estate of funds.

September 2021

Government Consultation in respect of Lasting Powers of Attorney

The government has launched a consultation into the Lasting Power of Attorney (LPA) system, which has been criticised for being slow and hard to use.

The current process is largely paper based, involving the Office of the Public Guardian (OPG) processing LPAs amounting to 19 million pieces of paper in 2019/20. The consultation is looking at digitisation of the process to help speed up applications and cope with the management and storage of documents.

What is a Lasting Power of Attorney?

An LPA allows you to appoint a trusted relative or friend to deal with your affairs should you ever become unable to manage them yourself. It means they can deal with issues such as management of your finances, payment of your bills, arrangement for care and consent to medical treatment on your behalf.

Without an LPA, no-one will legally be able to step in and deal with matters for you, and your loved ones would have to make an application to the Court of Protection for a deputy to be appointed. This is a far longer process as well as being more complicated. It also involves an ongoing requirement to report to the Court of Protection every year.

By contrast, an LPA is very simple to arrange and use and means you can choose the person whom you would like to represent you yourself.

Proposed reforms

To speed up and modernise the process, the Office of the Public Guardian says: ‘Our ambition is to use technology to improve our LPA services, without compromising safety or limiting access for people who aren’t online, and the launch of our consultation marks an important next step in making LPAs safer, simpler and fit for the future.’

Proposals include the following:

Reforming the witnessing process to allow remote witnessing or alternative ways of verifying the execution of the LPA.

Improving the registration process, to include reducing the incidence of applications being rejected. Creating digital storage facilities for LPAs to be kept prior to registration.

Giving the OPG more powers to check LPAs and stop or delay registration when checks are not completed satisfactorily.

Streamlining the process for raising an objection to an LPA and reducing the amount of time taken to make and register an LPA.

Looking at the possibility of creating a fast-track service for emergency applications, when an LPA is needed urgently, for example, where someone has had a sudden change in their health meaning they need an attorney to step in at once.

Improving access to the service and introducing new safeguards against fraud and abuse.

Making an LPA

Putting an LPA in place will give you the security of knowing that, should you ever become unable to manage your affairs, your trusted representative will be able to take over on your behalf and look after everything for you.

Intestacy Explained

When someone dies without leaving a Will, they are said to have died intestate. There are strict rules governing who will inherit their estate, known as the Rules of Intestacy.

Dealing with the estate of someone who has not left a Will can be more complex and time-consuming than would otherwise be the case. There can also be an increased risk of disputes arising.

Who inherits an intestate estate?

The Rules of Intestacy (the Rules) set out who is entitled to inherit an intestate estate in strict order of preference. By way of example, if someone is married with children then their spouse is entitled to the first £270,000 of the estate, plus all the deceased’s personal possessions.

The remaining half of the estate will be split into two, with one half going to the spouse and the remaining half shared equally between the deceased’s children. Under the Rules, cohabiting partners and stepchildren will not receive anything.

Estate administration

An administrator will generally need to apply to the Probate Registry for a Grant of Letters of Administration giving them the authority to deal with the winding up of the estate.

Those who will inherit under the Rules are entitled to apply to become the estate administrator, in the same order of priority. If someone does not want to take on the role, which can be time-consuming and sometimes complex, then the next person can step up.

Disadvantages of intestacy

Difficulties can arise in the winding up of the estate of someone who died without a Will. If more than one person is entitled to dealing with the administration, there may be a dispute over who takes on the role.

It may be harder for an administrator who has not been prepared for the role to identify all the deceased’s assets, to include gifts of cash made within the last seven years.

They will also be responsible for discharging all the deceased’s debts and other liabilities.

The administrator needs to ensure that they have included all the beneficiaries who are entitled to inherit. If the deceased did not have close family or had a number of children whose whereabouts are unknown, this may be difficult.

The administrator could be held personally liable for any mistakes they make that give rise to a loss, even if the error was genuine.

Where someone close to the deceased, such as a cohabiting partner, or someone who relied on the deceased for financial support does not receive anything after their death, they may decide to make a legal claim against the estate. The administrator will be required to defend this claim, which could be expensive and time-consuming. Disputes could also arise among family members who believe the deceased would have wanted them to receive more than they are entitled to under the Rules.

The best way to avoid difficulties is to ensure a valid Will is in place. If your relative has died without leaving a Will, it is recommended you seek legal advice in dealing with the winding up of their estate to protect your position.

August 2021
Inheritance Tax Thresholds

Inheritance Tax can be a substantial bill, often amounting to tens of thousands of pounds or more, payable by someone’s estate after their death.

It is a complex area, but it is often possible to legitimately reduce the amount of Inheritance Tax that will be due. Read more about IHT and how to ensure your beneficiaries receive the most from their inheritance.

April 2021

Lasting Powers of Attorney

On 2nd April 2021 my editorial relating to the importance of Lasting Powers of Attorney for all adults was featured in the East Anglian Daily Times newspaper.

Traditionally, Powers of Attorney were used help clients in their later years but they are equally valuable in case of an adult person being unwell or involved in an accident, irrespective of their age.

East Anglian Daily Times Editorial

March 2021

Lasting Powers of Attorney

Lasting Powers of Attorney have, in the past, traditionally been used to support elderly relatives but there is also the need to protect younger couples and families.
The checklist below is intended to highlight how you can help a spouse or partner with a Power of Attorney in place, highlighting their importance.
If you would like more information about making Lasting Powers of Attorney please see my page about Powers of Attorney or get in touch. 

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