Frequently Asked Questions

If you die without leaving a valid Will, then your estate will be distributed in accordance with the law. This law is known as the Intestacy Rules and is nearly 100 years old. It is out-of-date and does not cater for modern families, it does not allow for assets to pass to unmarried partners, even if you live together. Nor do stepchildren inherit, although illegitimate children do inherit. The law generally ensures that your closest relatives inherit, however, your spouse/civil partner may not be entitled to inherit everything as they may share this with your children. If you do not have any family members, then your estate will end up with the Crown. Additionally, without a Will the Court will appoint an administrator to handle your estate, this could lead to delays, increased costs but could also be someone you would not have wanted.

When selecting an Executor, it's important to choose someone who is trustworthy, organised, and capable of handling the responsibilities of estate administration. Consider factors such as their availability, financial acumen, and willingness to act in the sole interest of the beneficiaries. You may also want to discuss your decision with potential Executors to ensure they are comfortable taking on the role.

It's recommended to review your Will regularly, especially after significant life events such as marriage, divorce, the birth of a child or grandchild, or moving to a new home for example. Although we always try to write your Will in a way to ensure it is as future-proofed as possible, nobody can predict what the future might hold and as a rule of thumb we would recommend you review your Will every 3-5 years.

While it is possible to write your own Will, it's advisable to seek the guidance of a professional Willwriter and Estate Planner to ensure that your Will is legally valid and accurately reflects your intentions. Willwriters and Estate Planners, such as Toucan Law can provide valuable expertise and advice to help you navigate complex legal requirements and avoid potential pitfalls

A Will is a legal document which outlines your wishes regarding who is to inherit your assets when the time comes. A Will also allows you to leave specific gifts to individuals or charities, appoint guardians for minor children, specify any funeral preferences you might have, as well as provide protection for assets or vulnerable individuals. Having a valid Will in place when you die makes things easier for those you leave behind and can help avoid family disputes.

Making a Will is part of your overall Estate Plan. Estate Planners, such as Toucan Law offer a holistic service and as well as helping you with your Will, they will also provide guidance and support on how to make arrangements for the management and distribution of your assets after your death or in the event of incapacity. Estate Planning allows you to protect your assets, minimise taxes, and ensure that your loved ones are provided for according to your wishes. Estate Planning is essential for achieving your financial and personal goals and providing peace of mind for you and your family.

To protect your loved ones and assets from legal disputes and challenges, it's important to create a clear and comprehensive Estate Plan, communicate your wishes to your family, and regularly review and update your plan as needed. Working with an experienced Estate Planning specialist, such as Toucan Law can help ensure that your plan is legally sound and minimises the risk of disputes.

If you don't have a Lasting Power of Attorney (LPA) in place and you become unable to make decisions due to incapacity, the process of managing your affairs can become more complex and time-consuming. Without an LPA, your loved ones may need to apply to the court to become your deputy through a process known as deputyship. This process can be lengthy, costly, and may not result in the person you would have chosen being appointed to make decisions on your behalf. Additionally, without an LPA, your family members may face difficulties in accessing your finances, managing your property, or making important decisions about your health and welfare. This lack of legal authority can lead to delays in important matters and potential disputes among family members about who should have the authority to act on your behalf.

You need to make an LPA whilst you are still mentally capable of making decisions and understanding the implications of appointing an attorney. None of us know what the future holds, so having an LPA in place provides peace of mind that your affairs will be managed according to your wishes if you become unable to do so yourself. It's never too early to create an LPA, but it's important to do so before you need it.

A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint someone (known as an attorney) to make decisions on your behalf if you become unable to make them yourself due to mental or physical incapacity. There are two types of LPAs: one for health and welfare decisions and another for property and financial affairs. Having an LPA in place ensures that your wishes are followed and that someone you trust can manage your affairs if you're unable to do so.

You can appoint anyone you trust to act as your attorney in an LPA, including family members, friends, or professional advisers. It's important to choose someone who understands your wishes and is willing and able to make decisions in your best interests. You can appoint more than one attorney and specify whether they should make decisions jointly or independently.

The Executor is responsible for carrying out the instructions outlined in the Will and administering the deceased person's estate. This includes gathering and managing assets, paying debts and taxes, and distributing assets to beneficiaries according to the terms of the Will. Where there is no Will, then Administrators are appointed and the estate is distributed in accordance with the Intestacy laws.

If someone dies without a valid Will, it’s known as "dying intestate." In this case, their assets are distributed according to the rules of intestacy, which determine the order in which close relatives inherit. Typically, spouses, civil partners, and children are given priority, while cohabiting partners and stepchildren are not automatically entitled to inherit. If you’re a common-law partner, i.e. you and your partner were co-habiting, then you may need to make a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, and seeking legal advice is wise. The person responsible for handling the estate, known as the “administrator,” will manage the process of distributing the assets. If no named beneficiaries survive or if a Will was deemed invalid, this can also lead to a partial intestacy, affecting how the estate is shared. If you’re navigating these complex rules, we’re here to help make it easier to understand and manage.

If you're trying to find out whether the person who passed away had a Will, there are a few places to start. Many people store their Wills alongside other important documents, like birth or marriage certificates or property deeds, so it’s worth checking there first. Additionally, you can ask local solicitors, Will Writing services, or even banks—they might have a copy on file. Sometimes, people make multiple Wills over their lifetime. It's crucial to ensure the latest one is used since only the final version is legally valid. For added certainty, you can also do a search through a national Will registry to locate the most recent version. Lastly, to be legally valid, a Will must be in writing, signed and dated by the deceased, and witnessed by two independent people who don’t benefit from the Will. If you need further help navigating this process, we’re here to offer guidance.

The term Probate is often confused with Estate Administration. Estate Administration is the process your Executor (or next of kin if you do not have a Will) will need to follow to ensure that your assets are sold and collected in, your debts are paid, any taxes are calculated and settled and your beneficiaries are paid their inheritance. In order for them to carry out the Estate Administration, they may have to apply for Probate (or Letters of Administration if you do not have a Will). This is a legal process whereby the Court gives your Executor the legal authority to carry out their role and administer your estate in accordance with the law. Probate isn't always required and it will depend on the assets involved and the value of these. You can read more in our blog: https://www.toucanlaw.co.uk/post/probate-is-it-really-needed

The duration of the Probate process can vary depending on factors such as the complexity of the estate, whether there is any Inheritance Tax payable, the presence of disputes or challenges, and court procedures. In general, Probate and Estate Administration can take anywhere from several months to a year or more to complete.

A Personal Representative is the individual responsible for administering the estate of someone who has passed away. If there is a valid Will, the Personal Representative is called an executor and is named in the Will. If there is no Will, or the named executor cannot serve, the court appoints an administrator instead. Personal Representatives are tasked with gathering assets, paying debts and taxes, and distributing the estate according to the Will or the rules of intestacy if no Will exists. This role requires careful attention to legal and financial details.

You can manage probate on your own—many people choose to handle it independently. However, it’s important to assess whether you’re prepared for the legal, financial, and administrative responsibilities involved. The process requires careful management of estate assets, debts, and taxes, as well as meeting specific legal requirements. If you feel confident in handling these tasks and have the time to dedicate, DIY probate may work for you. But if you prefer peace of mind or find the process daunting, a professional such as Toucan Law can take on these duties on your behalf.

If you make a mistake as a Personal Representative, you could be held personally liable. This means you might have to correct any errors or cover any financial losses from your own funds. It’s essential to follow the wishes outlined in the Will (if there is one) or adhere to the Intestacy Rules if there isn’t. To protect yourself, consider steps like placing Statutory Notices in the Gazette and the local paper to alert creditors and opening a separate estate bank account to manage funds and keep them distinct from your own. Taking these measures helps ensure that the estate is managed properly and that you fulfill your responsibilities to the beneficiaries, creditors, and the court effectively.

There are a number of legal and financial requirements that need to be completed when a person dies, this whole process is referred to as "Administering the Estate" or "Estate Administration". The Personal Representative is responsible for the administration of the estate and will find themselves having to manage a wide range of legal, financial and administrative tasks, these may include things such as: valuing all of the assets and debts as at the time of death, applying to the Probate Court for your official authorisation to act, selling properties and investments, settling loans, mortgages or other debts dealing with tax and completing tax forms, such as Income Tax, Inheritance Tax and Capital Gains Tax providing Estate Accounts to the beneficiaries and the Probate Court, if required paying out the estate to the correct people. This can be a complex and onerous task for an individual and so before a person begins the process, they need to be clear in their mind that they want to take on this responsibility. It is important to realise that a Personal Representative is not obliged to act and can renounce their appointment (step down). Although, once they renounce they have no say or control over what happens to the estate of the person who dies.

No, not all assets are required to go through Probate. Assets held jointly with rights of survivorship, assets with designated beneficiaries (such as life insurance policies), and assets held in trust typically bypass Probate and are distributed directly to the beneficiaries.

Yes, there are many different types of Trusts. The type of Trust that's right for you will depend on your individual circumstances and wishes. Speaking with a specialist, such as Toucan Law will help you to understand all of the options available to you.

Trusts offer numerous benefits in estate planning, including privacy, asset protection, probate avoidance, tax planning, and flexibility in distributing assets to beneficiaries. Trusts can also be used to provide for minor children, individuals with special needs, or beneficiaries who may not be capable of managing assets on their own.

A Trust is a legal arrangement in which one party (the Trustee) holds assets for the benefit of another party (the Beneficiary). Unlike a Will, which only takes effect upon death, a Trust can be established during your lifetime and can provide ongoing management and distribution of assets both during your lifetime and after your death. Trusts are very common and play a key role in many aspects of everyday life. Many people, often without realising it; will come into contact with a trust in one form or another at some point during their lives. Yet trusts are widely misunderstood and often seen as something just the wealthy need to be concerned with. Trusts are particularly useful when planning how money and assets should pass from one generation to another, especially when family structures are complicated by divorces and second marriages. This; coupled with the growing frequency of marriage breakdowns, an ageing population and rising prosperity; makes trusts an excellent tool for long-term planning to ensure a family’s financial stability and security.