Wills and Probate - Introduction

Trying to cover such a massive subject in this way is a very hard task. Quite simply, everyone at some stage is going to be affected by old age, illness or death, whether it's their own or someone else's. It makes sense to plan for these eventualities, and you can plan without it costing you the earth and you will also get peace of mind knowing that your affairs are in tip-top order, whatever circumstances arise.

During the series, I will highlight a particular area or topic and explain what it is, what can be done and when, and where space permits, the associated upsides and downsides. Very important, that. With every upside there is a downside. What the individual needs is to be aware of all the possible problems, solutions and outcomes, and then make his/her own mind up as to which course of action to take. I will use real-life examples to illustrate any salient points, obviously changing details in order to prevent any possible identification of the case and/or individuals concerned. Please remember that the mini-series is only a brief guide and is hardly likely to be comprehensive; after all, huge books have been written about each individual subject. I will, however, do my best to cover the basics in sufficient detail to be of some use and without resorting to "legalese".

The topics to be covered are:

1. Inheritance Tax
2. Wills and Trusts
3. Other planning aids (Powers of Attorney, Notices of Severance, Funeral plans, Asset Protection, etc.)
4. Probate, and
5. What happens if there is no planning at all

What we must stress is that each person's objectives and circumstances are different. This means that it is impossible for any one individual to read this series and then feel they have been equipped with all the knowledge they need to go and make watertight plans for their future. This is not a free legal advice service. You should obtain a professional opinion wherever appropriate and be prepared to pay for that opinion. Contrary to popular belief, lawyers do not try to rip you off at every opportunity. They carry no stock, yet pay several thousand pounds per year for what is effectively "training and development". This is basically their cost of keeping up to date with the law so that they can advise you properly. They cannot survive on free 30-minute interviews, even though this is an extremely popular marketing tool. If you ask them to act, then it will cost you, so be prepared.

Also, make sure that the lawyer you consult has the necessary expertise in the field you require. The best conveyancer may make the worst litigator, and someone who got a fantastic result for your friend's personal injury claim might not have the first clue as to how to deal with your divorce. This is particularly relevant in this type of law, i.e. dealing with the affairs of the elderly or the deceased. This area is seen as very much the poor relation in legal offices, and the work is generally passed on to non-experienced staff for them to undertake. So, if you decide you need to take legal advice, then I would urge you to make sure the lawyer you consult is a member of S.T.E.P. (The Society of Trust and Estate Practitioners). This is a self-regulatory worldwide society aiming to encompass the finest practitioners in this particular field. Members are entitled to use the initials "TEP" after their name and this means that their expertise has been proven. A list of members can be obtained from STEP at their website.

I said earlier that I would give real-life examples of salient points, and I shall conclude this first part with an example of how someone thought they could save a few bob by not taking professional advice.

I once acted for a lady whose sister had died. Two years or so prior to her death, the deceased had some marital problems and she wanted to leave her estate to my client rather than to her husband. She did not want to make a home-made Will, but also was unwilling to pay a professional. So, rather than see a lawyer, a friend of hers who worked for a firm of solicitors said that "she would get a Will done for her", which was prepared and intended to cover the marital problems, but the lady subsequently died without getting divorced.

There was, on the face of it, nothing wrong with the will; it gave her share of the property to my client (subject to a life interest for her husband) together with everything left after any expenses and legacies had been paid (the residue).

The problem is that her "friend" was not sufficiently knowledgeable to know that joint property passes by survivorship, not by Will. As the house was still in joint names with the husband when my client's sister died, he is now the proud owner of the property simply because he survived her. My client gets only the residue, which actually amounts to less than the debts and funeral expenses. So, in reality, all she will get is a bill. She could take court action, but this will be long-winded, expensive and not guaranteed to succeed.

This situation could have been avoided if the deceased had been prepared to pay the modest -- and I mean modest -- fee to have a professional Will made.