Write or Review Your Will This Year…

The New Year is a great time for renewal and fresh starts. It’s a perfect moment to set new resolutions and organise our lives. While many focus on goals like fitness or saving money, one genuinely meaningful resolution is to consider your family’s future—review or create your Will.

Don’t delay; acting now can bring peace of mind and ensure your wishes are honoured.

Have You Made a Will?

If the answer is no, you’re not alone. Many put off making a Will because they believe their assets are simple, their family already knows their wishes, or that their partner will automatically inherit everything. But remember, without a legally valid Will, your estate is divided according to the rules of intestacy.

It’s important to understand that it’s the law, not you, that determines who inherits your property. This process can sometimes be lengthy and complicated for your loved ones. Plus, when children are involved, you won’t be able to appoint guardians for your children formally. Creating a Will allows you to state your wishes clearly.

When Should You Review an Existing Will?

Having a Will isn’t a “set it and forget it” document. Life changes quickly, so it’s wise to review your Will every 3 to 5 years or after significant life events.

Key moments to revisit include:

1. Marriage, remarriage, or Civil Partnership: Marriage revokes previous Wills.
2. Dissolution or Divorce: Usually doesn’t cancel a Will but affects inheritance.
3. Birth of Children or Grandchildren: Update beneficiaries or guardians.
4. Death of a Beneficiary or Executor: Select replacements.
5. Significant asset changes: Buying or selling property, or receiving an inheritance, require updates.

Regular reviews ensure your Will reflects your current wishes.

Risks of DIY Wills

While DIY wills are pretty popular because they are easy to access and inexpensive—sometimes costing less than £10—it’s important to remember that they can also carry risks. Even small mistakes in signing, witnessing, or phrasing the Will can render it invalid, potentially causing problems for your loved ones later.

DIY wills may not address complex family situations, tax issues, or unexpected events like a beneficiary passing away before you. These problems can result in legal disputes and your estate being distributed according to strict laws rather than your true wishes.

Ultimately, the money saved upfront often ends up costing much more to fix or contest a flawed DIY will after you’re gone, making professional advice a sensible investment.

Our Advice

Make this the year you take control of your legacy. Creating a Will is more than just dividing assets; it’s about bringing security and peace of mind to everyone you care about. We understand that drawing up a Will might seem a bit daunting or sad at first, but once it’s done, you’ll feel so relieved knowing your wishes are in place and you’ve chosen someone you trust as your executor.

Don’t delay – contact us today for an instant quote and start protecting your family’s future. We’re here to help!

Why Joint Tenancy Might Catch You Off Guard

When you buy property with a partner, many couples opt for joint tenancy because it appears simple. While it is a popular choice for married couples, it also involves significant, often hidden, risks that may not be immediately apparent. These risks can lead to complications if a relationship changes or if one owner dies unexpectedly.

Building on what we discussed in our previous blog, let’s take a closer look at the main disadvantages of joint tenancy. We will also provide two examples to illustrate why choosing the correct ownership structure for your specific circumstances from the outset is so crucial. 

Potential Pitfalls

The main feature of joint tenancy is the right of survivorship, which is both its advantage and its biggest flaw. The right of survivorship means that when one joint tenant dies, their share automatically goes to the remaining owner(s), regardless of what’s written in their Will.

Loss of Control

However, it’s essential to be aware of the loss of control this entails. If you pass away, you can’t choose to leave your share to children from a previous marriage, other family members, or a trust—your Will isn’t able to override the property title.

Breaking a Joint Tenancy

Many people believe that a joint tenancy cannot be broken, but in fact, it can be terminated without the agreement or even the knowledge of your co-owners. This can occur in several ways:

– By one party filing a Notice of Severance (Form SEV) with the Land Registry.

– Through a formal sale or transaction.

– If one party takes out debt secured against the property, such as a charge or charging order. If that person passes away, the joint tenancy is immediately severed and converted into tenants in common. This is a surprising and risky aspect to be aware of, because it effectively removes the fundamental survivorship rule. 

Scenario One: The Power of Unilateral Severance

The financial trap described in this case focuses on an important point: joint tenancy is not automatically granted. It can actually be terminated unilaterally—without requiring the agreement of both parties. This case really demonstrates how powerful a simple notice can be.  

Kinch v Bullard [1998] 4 All ER 650

Background

In the case of Kinch v Bullard (1998), a divorcing couple, Mr and Mrs Bullard (initially Johnsons), were beneficial joint tenants of their home. As they went through a divorce, the wife—who was terminally ill—wanted to sever the joint tenancy.

Her solicitor sent a notice of severance by first-class post to their home. Sadly, before her husband could receive or read it, he suffered a heart attack. Recognising that she could now inherit the entire property through survivorship if the tenancy wasn’t severed, she retrieved the letter from the mailbox and destroyed it.

Legal Challenge

After both tragically died shortly afterwards, their executors found themselves in a dispute over who owned the property. The key question was whether the notice of severance had been effectively served under the Law of Property Act 1925, or if her destroying the notice could reverse the severance.

Consequences

The court concluded that the notice was served when it was placed in the husband’s mailbox. The fact that Mrs Bullard destroyed it did not alter this. Essentially, Mrs Bullard left it to the post office to serve the notice on her behalf, and they did so correctly. Consequently, the right of survivorship was broken, and Mr Bullard’s share passed through his Will rather than to Mrs Bullard via survivorship.

Scenario Two: Intestacy and a Minor Child

This example highlights the serious consequences that can happen when a joint tenancy is ended without a Will in place.

Background

A couple, Sarah and Ben, who shared their home as joint tenants. They had a child, Leo, and never wrote a Will. Ben owed significant personal debts, and a creditor successfully registered a charging order against the property, which instantly severed the joint tenancy.

When Ben unexpectedly died, Sarah was shocked to find that she didn’t automatically inherit the entire house. Instead, because Ben didn’t leave a Will, his 50% share went to his ten year old son, Leo, under the rules of intestacy.

Consequences

Sarah now co-owns the house with her ten-year-old son. She cannot sell, transfer, or remortgage the property because any transaction involving Leo’s share requires court approval.

Sarah is stuck with an expensive mortgage she cannot change. Additionally, managing Leo’s share involves costly court applications and the appointment of a court-approved solicitor to act on Leo’s behalf.

This tragic situation—where a creditor’s charge secretly removed the Right of Survivorship and forced the family into costly court proceedings—is a stark reminder of the importance of Wills and the need for a protective legal structure for beneficial ownership. 

Our Advice

If you’re a joint tenant, consider whether you want full control over your share. If you have children from a previous relationship or want to put your share into a trust, being a tenant in common might be a better option.

Think about whether debt could be a concern. If so, ending the joint tenancy can help protect your share from financial issues.

Remember your Will. It only applies to your share if you’re a tenant in common; if not, it won’t control the property.

If Joint Tenancy isn’t suitable for you, you can switch to tenants in common by serving a notice of severance. Seeking specialist legal advice is essential to ensure the documents are correctly drafted. If you want more information or to speak with our team, please don’t hesitate to contact us. We’re here to help.

Buying A Property Together

Buying a property with a partner, family member, or friend is an exciting milestone, but it also involves making essential legal decisions. One of the most significant choices you will face is deciding on your legal ownership structure and understanding how it influences your equity. This decision not only affects your rights while you own the home but also determines what happens if your relationship changes or one owner passes away.

Here is an overview of the main methods to hold property jointly and how you can safeguard your financial contributions.

The Two Pillars of Joint Ownership 

In England and Wales, when two or more people buy property together, they can choose between two legal arrangements: joint tenants or tenants in common. This choice affects how ownership is shared and, most crucially, how the equity is divided.

1.  Joint Tenants

Sometimes called beneficial joint tenants, this is a common choice for married or long-term partners. There are some important points to consider, including:

• You and your co-owner(s) share the entire property equally, with no separate shares. Legally, you are regarded as one single entity.

• The ‘Right of Survivorship’ is a key feature. If one owner dies, their interest automatically passes to the remaining joint owner(s), regardless of what’s written in a Will. This means you cannot leave your share to someone else.

• When the property is sold, or the joint tenancy is terminated – or officially ended – the proceeds are divided equally. This occurs even if contributions to the deposit or mortgage were not the same.

2. Tenants in Common

This option is often preferred when contributions vary or owners wish to leave their share to specific beneficiaries. For example:

• Each owner holds a distinct, clearly identified portion of the property. These shares can be equal (such as 50/50) or different (like 60/40 or 75/25), depending on their financial contributions.

• If an owner dies, their share does not automatically transfer to the remaining owner(s). Instead, it is allocated according to their Will or, if there is no Will, according to intestacy laws.

• When the property is sold, the proceeds are divided according to the fractional shares they hold.

Property Ownership – Key Features

Feature	Joint Tenants	Tenants in Common
Ownership of Equity	Always equal shares (treated as one entity).	Defined shares (can be equal or unequal, e.g., 60/40).
Inheritance Rule	Right of Survivorship: Share automatically passes to the surviving owner(s).	No Right of Survivorship: Share passes according to the deceased owner's Will (or intestacy rules).
Will Control	You cannot leave your share to someone else in a Will.	You can leave your specific share to anyone in your Will.
Protecting Investment	Difficult, as shares are always equal.	Excellent for protecting unequal investments (requires a Declaration of Trust).
Typical Scenario	Married couples and long-term partners with equal contributions.	Friends, siblings, or partners with unequal contributions or existing children/family they wish to inherit.

How to Protect Your Equity: The Declaration of Trust 

If you’re considering being tenants in common or have unequal financial contributions as joint tenants, a Declaration of Trust—sometimes called a Deed of Trust—is a valuable tool. It’s a legal document that clearly shows who owns what in the property, making your agreements official and easy to understand. 

Why is This so Important? 

Without it, the law might assume an equal 50/50 ownership split, which could be unfair if one person contributed more. This could lead to complications when selling or if circumstances change.

Using a Declaration of Trust allows you to protect your initial contributions by ensuring the person who paid a larger deposit receives that amount first from the sale proceeds. You can also specify different ownership shares, such as 70% to 30%, to accurately reflect each person’s contribution.

It’s also an excellent way to outline responsibilities for ongoing payments like the mortgage or maintenance, and to plan for the situation if you decide to part ways. Moreover, it helps establish a clear process for resolving disagreements or managing future sales, making things run more smoothly and avoiding stressful legal disputes. 

Can I Change the Ownership Structure?

Yes, you can change your legal ownership structure after buying a property. The most common change is switching from joint tenants to tenants in common. This process is called severing the joint tenancy. 

How is Joint Tenancy Severed?

Severing a joint tenancy is generally a simple legal process that usually does not require the agreement of the other owner(s) if done correctly. This process involves:

1. The person wishing to sever the joint tenancy must send a formal notice of severance to the other joint owner(s).

2. You then register the severance with the Land Registry using Form SEV. This informs any potential buyer or lender that the property is now held as tenants in common.

Once the joint tenancy is severed, the parties automatically become tenants in common with equal shares (e.g., 50/50), unless a Declaration of Trust is created at the same time to specify unequal shares. 

When to Consider Severing the Joint Tenancy

Individuals often consider changing their ownership structure for the following reasons:

1. A primary reason is for estate planning. By becoming tenants in common, you gain the ability to leave your specific share of the property to a beneficiary in your Will (e.g., children from a previous relationship).

2. If a couple separates, severing the joint tenancy ensures that if one party dies before the financial settlement is finalised, their share passes according to their Will, rather than automatically to the former partner.

3. If one party contributes significantly more towards a mortgage repayment or major renovation after the initial purchase, severing allows them to create a Declaration of Trust reflecting the new unequal beneficial ownership. 

Our Advice 

Deciding how to hold your property is a crucial legal decision that significantly impacts your finances. This choice is especially important for unmarried couples. They do not automatically receive the same legal protections as married couples if they separate.

If an individual contributes unevenly, or if one person uses a gift or inheritance for the deposit, take action. The most effective way to legally protect individual investments is to establish a Tenancy in Common supported by a Declaration of Trust.

If you would like more information or guidance on co-ownership of property, please don’t hesitate to contact us. We’re here to help.

Do You Need a Will to Decide Your Funeral?

Putting off making a Will is common (and understandable), but this postponement causes unnecessary difficulties for your family. Moreover, while you can include funeral details—such as cremation, burial, the type of service, and music—in your Will, relying solely on it for planning involves risks. A Will often comes too late to legally determine arrangements, but it always holds an important role. In England and Wales, the personal representative of the estate has the authority to manage the body and make final funeral decisions.

With a Will: The Role of Your Executor(s)

When you have a Will, the executor(s) you name become the personal representatives. They hold the legal authority to manage your remains and make final decisions about funeral arrangements, such as burial or cremation. If you name more than one executor, they share this responsibility equally.

This authority takes precedence over the wishes of a spouse, children, or other family members. The executor(s) also handle the funeral bills using funds from your estate. 

Without a Will: The Role of an Administrator

When someone passes away without leaving a Will, an administrator is appointed based on the rules of intestacy. This process follows a specific hierarchy of the closest living relatives—spouse or civil partner first, then children, followed by parents, and so on. The person highest on this list has the legal right to apply as the administrator and takes charge of the funeral arrangements.

Crucially, the rules of intestacy do not recognise unmarried partners (cohabitees). Contrary to common belief, a long-term partner does not automatically have the legal right to arrange the funeral in this situation. 

Timing: Why the Will Isn’t Enough

The funeral generally occurs within weeks, but locating and legally proving your Will can take much longer. Your loved ones often start making arrangements before the executor has official legal authority.

Your Will is legally binding, but your funeral wishes aren’t.

The executor(s) must follow the rest of your Will’s instructions, but they are not legally obliged to adhere to your funeral preferences. Including your wishes still helps minimise disputes and offers a helpful initial guide for loved ones, but it does not guarantee compliance.

Our Advice

Don’t underestimate how reassuring clear guidance can be for your family. The most reliable way to share your preferences is to create a separate ‘letter of wishes or instruction’. This document outlines your preferences (music, readings, burial spot, etc.). Ensure your executor(s) and key family members know exactly where to find it. This provides timely, clear guidance when they need it most. Like funeral wishes in a Will, this letter is not legally binding, but it offers immediate, practical help.

Things to Consider 

No matter which path you choose, you may wish to consider:

• Disposition: Do you favour a burial or cremation? Where would you like your body to be buried, or your ashes to be kept?

• Service: Have you thought about a venue for the funeral and wake?

• Tributes: Who might you want to give a heartfelt eulogy? Are there readings, music, art, or photos you’d love to include?

• Donations: Would you prefer flowers or a donation to charity?

A truly personal funeral can bring comfort and joy to those you leave behind.

A quick note on organ donation. To make sure your wishes are clear, share your preferences both on the Organ Donation Register and with your loved ones.

Final Step: Talk to Your Family

The days and weeks following a loss are very emotional. Talk with your family today about what you want. This makes things simpler for everyone and helps make sure your preferences are clear.

Some people find reassurance in planning their own funerals beforehand, and pre-paid funeral plans can be an excellent choice. These plans help cover costs in advance and let you decide on many arrangements ahead of time.

If you need help or advice about making a Will or any other estate planning issue, please don’t hesitate to contact us. We’re here to help.

The Crucial Cover: Why You Must Insure Your Property at Contract Exchange

Securing Your Investment

The process of buying a house is complex, and therefore, it involves many legal steps. As a result, one essential requirement that demands careful attention is having buildings insurance from the moment you exchange contracts. This crucial stage is often overlooked or postponed, yet it is vital for protecting what is likely the most valuable investment you will ever make.

When the Risk Becomes Yours 

Crucially, when you exchange contracts, the legal risk immediately transfers to you, the buyer. Although you don’t legally own the house yet (that happens at “completion”), any damage that occurs during that period becomes your responsibility.

For example, as the buyer, you are required to buy the house even if it burns down or floods. Therefore, the seller is no longer liable for any damage; the risk now lies with you. The insurance company steps in to provide funds for repair.

Additionally, if you are applying for a mortgage, the lender will require this insurance. They are lending a significant amount of money, so their investment must be safeguarded. Without proof of insurance, a mortgage cannot be secured, and the house purchase cannot go ahead. 

Why You Need Cover

Imagine a fire or severe storm damaging the house just before your move-in date—protection against such unforeseen events is vital.

For instance, if a fire causes damage, insurance will cover reconstruction costs. Similarly, strong winds during a storm can damage the roof, and repairs will be covered by your policy. Floods resulting in water damage are also protected, ensuring you won’t have to bear the financial burden alone.

Without insurance, any damage would mean you pay out of pocket for repairs or rebuilding, which could lead to serious financial hardship.

Keep Completion Running Smoothly

Significantly, your legal team must verify that you have valid insurance before the completion date. Without this proof, the entire process could be delayed, risking postponement of your move and causing unnecessary stress.

It’s important to note that buildings insurance should start on the exchange of contracts; therefore, neglecting this can lead to serious financial issues. This insurance acts as a safety net, protecting your entire purchase from potential risks.

Leasehold & New-Build Properties

Special situations must be considered for specific property types: 

• Leasehold Properties: The landlord or management company generally manages the building insurance, and the leaseholder simply reimburses them. Your legal team will ensure that the policy is active and premiums are paid.

• New-Build Homes: As the buyer, you usually bear the risk from exchange until completion. However, if the property is only partially constructed, this period can be lengthy, and securing insurance may be challenging. You might prefer the developer to insure the property until all works are completed. 

Simple Insurance Checklist

Use this simple list to make sure your new policy is set up correctly: 

Items to Check	Cover Required
Rebuild Cost	Does the amount cover the full cost to rebuild the house (not just its market value)?
Start Date	Is the insurance active from the day you exchange contracts?
Lender Name	Is your mortgage lender's name listed on the policy?
What's Covered	Does it include events like fire, storm, and flood?
Empty House Rule	If the house is empty for a while, are you still covered? (Check the time limit)
The Excess	How much will you have to pay toward any claim before the insurance takes over?

This quick check ensures the legal rules are adhered to and your new home is safe from the moment the contracts are signed.

Our Advice

Although it’s easy to overlook the importance of insurance when excited about buying a new home, neglecting this step can be expensive if damage happens. If you have any questions or need guidance about your property, please contact us. We’re here to help.

A Line of Sight? The Perils of an Invalid Will

Lessons from Coady v Coady

Writing a Will is one of the most important things you’ll ever do. It allows you to decide who inherits your property, making sure your final wishes are followed. But simply signing a piece of paper isn’t enough. A Will must strictly follow legal rules. These rules, known as the formalities of execution, are described in Section 9 of the Wills Act 1837.

A recent High Court case, Peter Coady v Gerard Coady, provides a strong and timely reminder. It demonstrates how carefully courts enforce these rules—and the financial and emotional chaos that can occur when they are overlooked.

The Cornerstone of a Valid Will

In England and Wales, a Will must satisfy four statutory requirements to be valid:

1. In Writing and Signed: The testator (the person making the Will) must sign it, or instruct someone else to sign it for them in their presence.

2. Intention: The testator must sign with the intention of making the Will effective.

3. Presence of Witnesses: The testator must sign or acknowledge their signature in the simultaneous presence of two or more witnesses.

4. Witnesses Attest and Sign: Each witness must then attest and sign the Will in the presence of the testator. (They do not need to be in the presence of each other).

The most crucial, and often misunderstood, element is ‘presence’. Historically, this means the signing must occur within the testator’s clear line of sight.

The Background: Coady v Coady (2025)

This case concerned Kathleen Bernadette Coady’s Will, which she made in April 2020 during the first national COVID-19 lockdown.

The 2020 Will appointed her son Gerard as the sole executor and primary beneficiary. This replaced an earlier Will, made in 2017 that had favoured another son, Peter.

Because of social distancing measures, the execution of the 2020 Will took place under unusual circumstances. Mrs. Coady, the deceased, sat just inside her open back door, while the two witnesses, neighbours David and Edna Meeson, stood outside in the garden, approximately nine to twelve feet away.

After her death, Peter challenged the Will, claiming that the Will was not properly signed and witnessed, and that his mother lacked testamentary capacity. However, the case ultimately centred on the failure to comply with the strict formalities of execution under Section 9. 

The Key Finding: No Line of Sight

The court heard conflicting accounts of the signing ceremony.

The witnesses, the Meesons, stated the process felt “hurried.” Crucially, they testified that Mrs Coady did not sign or acknowledge her signature while both of them were present at the same time. Furthermore, when they signed the document, she could not see them. They described the deceased as “frail and silent, ‘like a zombie’.”

However, Gerard’s account differed. He asserted that the solicitor’s instructions were followed exactly, the Will was read aloud to Kathleen Coady, and the witnesses observed Kathleen’s signature. She also greeted and thanked both witnesses. The court, however, regarded this evidence as suspicious and untrustworthy.

While Judge Phillips acknowledged that the temporary legislation extension permitting Wills to be executed via video conference during the pandemic (the Electronic Communications Amendment Coronavirus Order 2020), he emphasised that the requirements for simultaneous presence and acknowledgement still applied. The court found that Mrs Coady neither signed nor acknowledged her signature in the presence of two witnesses at the same time. Nor did the witnesses sign in her presence.

The court therefore declared the 2020 Will invalid.

What This Means for Your Will

Coady v Coady emphasises three essential points for anyone making or reviewing a Will in the UK.

1. The Law Demands Strict Compliance: Will formalities are strict. Courts will not relax these rules, even for understandable difficulties like those faced during the pandemic. The decision emphasises that simultaneous presence and line of sight are sacrosanct. The Will was signed in a way that created “reasonable doubt” over whether Mrs Coady and her witnesses could see each other signing.

2. Witness Credibility is Key: In this case, the court regarded the independent evidence of the two neighbours as more credible than the account of the beneficiary son (Gerard). If independent witnesses testify that the statutory requirements were not met, a Will can still be invalidated.

3. Review Any ‘Pandemic Wills’: The legislation that temporarily extended the rules to allow remote witnessing via video-conferencing during the pandemic ended in January 2024. However, you should immediately review any Wills executed under unusual, socially distanced circumstances like those in the Coady case. A legal professional can ensure they meet the formal validity requirements.

The Consequence of an Invalid Will

When a Will is successfully challenged, one of two outcomes occurs: 

1. The previous valid Will takes effect: This happened in the Coady case, where the 2017 Will was upheld, completely changing the distribution of the estate.

2. The Rules of Intestacy apply: If no prior valid Will exists, the Rules of Intestacy distribute the estate. This could mean your estate goes to people you never intended to benefit.

Our Advice

Don’t let a line-of-sight technicality jeopardise your legacy. Use an experienced lawyer to draft and supervise your Will’s execution. This ensures the process is correct and your wishes are legally protected. For help or advice about making a Will, or any other estate planning issue, please don’t hesitate to get in touch. We’re here to help.

Three Steps to Sell Your Property Smarter and Faster

Selling a property is an exciting venture, but the legal process can quickly become complicated and slow down if you’re not prepared. Selling a house in the UK typically takes between 3 and 7 months from listing to completion. However, with proactive planning, you can achieve a faster, smoother, and less stressful sale. By being proactive, you can identify potential issues, avoid frustrating delays, and considerably simplify the entire legal process. 

Step 1: Gather all Documentation

A buyer’s lawyer will quickly request a set of documents. Having these ready from the start will save weeks of back-and-forth later.

• Property Deeds/Title Documents: Find your official Title Number and verify the details of your property’s registration. If you have a mortgage, your lender may hold the original deeds, but the Land Registry’s electronic register is the ultimate legal record of your ownership. Your solicitor will use your title number to quickly obtain the official copies needed for the contract package.

• Mortgage Information: Request a current statement from your lender showing the latest balance.

• Warranties and Guarantees: Gather all guarantees for completed works on the property, such as damp-proofing, roof repairs, or new boiler installations.

• Energy Performance Certificate (EPC): Obtain a valid EPC before listing the property. This certificate is legally required for marketing. If your current EPC is more than ten years old, arrange for a new assessment immediately.

• Essential Legal Forms: Complete the TA6 (Property Information Form) and TA10 (Fittings and Contents Form) thoroughly and honestly as soon as you instruct your solicitor. 

Step 2: Resolve Planning and Tenure Challenges

Address any potential “skeletons in the closet” concerning the property’s structure or its legal ownership before the buyer’s solicitor inquires.

• Building Regulations Approval: For any significant alterations (e.g., loft conversions, wall removals), obtain the final completion certificates from your local authority. Missing these certificates is a common cause of transaction delays.

• Planning Permission: If you have built an extension or changed the use of part of the property, make sure you have the correct planning permission. 

• Shared Services: If you share a driveway, septic tank, or private access with a neighbour, consult your title deeds for clear, legally binding agreements.

• Leasehold Properties: If your property is leasehold and the remaining lease term is less than 85 years, you should promptly explore your options. Initiating the legal process for an extension before selling can significantly boost your property’s value and appeal. 

Step 3: Instruct a Lawyer Early to Secure the Advantage

You might expect us to claim that you can gain a genuine advantage by instructing lawyers early, but it’s true! Including before receiving an offer. This approach allows the conveyancing team to prepare the draft contract and complete the legal package in advance.

When a buyer makes an offer, your lawyer can immediately issue the complete contract pack. This demonstrates commitment, often enhances your negotiating power, and prevents delays buyers face while waiting for paperwork. Don’t wait for buyers to uncover issues; identify and resolve them yourself. This transparency makes your sale smoother, quicker, and legally secure.

Our Advice

Navigating a property sale doesn’t need to be stressful. By addressing potential issues and gather documents in advance, you control the timetable, ensuring conveyancing is predictable and smooth.

Since the 1970s, we’ve helped families and individuals sell property with minimal delays, offering services like buying and selling, equity release, tenancy agreements, freehold reversions, and lease extensions. Contact us for advice on property matters; we’re here to help.

Selling a property is an exciting venture, but the legal process can quickly become complicated and slow down if you’re not prepared. Selling a house in the UK typically takes between 3 and 7 months from listing to completion. However, with proactive planning, you can achieve a faster, smoother, and less stressful sale. By being proactive, you can identify potential issues, avoid frustrating delays, and considerably simplify the entire legal process.

Taking Care of Vulnerable Loved Ones After You Die

It’s a deeply personal and often challenging topic: how do you ensure financial stability and a good quality of life for a vulnerable or disabled loved one after you pass away? For many, leaving an inheritance is an important part of their legacy.

However, a simple lump sum gift could unintentionally harm a vulnerable beneficiary and jeopardise their eligibility for vital state benefits, social care, or housing support.

If your loved one relies on means-tested government assistance (such as Universal Credit, Housing Benefit, or Income-related Employment and Support Allowance) or may struggle to manage a large sum of money, proactive legal planning is essential. You can’t simply include them in your Will; you need a structured approach to safeguard both their inheritance and their crucial support network.

The £16,000 Capital Limit

In the UK, most means-tested benefits have limits on your loved one’s total capital (savings, investments, and most inheritance):

• £6,000: Savings above this amount will start to reduce their benefit payments.
• £16,000: Savings over this level generally make them ineligible for Universal Credit and other working-age means-tested benefits.

An outright inheritance of more than £16,000 will therefore result in the complete loss of these essential benefits.

The Power of Specialist Trusts

The foundation of estate planning for a vulnerable beneficiary is establishing a trust within your Will. A trust is a legal arrangement where Trustees oversee assets for a specific person (known as a beneficiary). Because the Trustees manage the funds—not the beneficiary directly—the assets generally don’t count against the beneficiary’s capital limit for means-tested benefits.

In this scenario, there are two main types of trusts to consider in the UK.

ONE: Disabled Person’s Trust (DPT) / Vulnerable Person’s Trust

A specific type of trust created for beneficiaries who meet the legal definition of ‘disabled’ (often by qualifying for certain benefits like PIP or Attendance Allowance).

The Key Benefit

It offers significant tax advantages. Trustees can choose to have the trust’s income and capital gains taxed at the disabled beneficiary’s personal rates. DPTs are also exempt from the 10-year and exit charges that apply to other trusts.

Purpose

The trust must mainly benefit the beneficiary, acting to supplement rather than replace state funding.

TWO: Discretionary Trust

A flexible trust where Trustees have full discretion over who benefits, when, and how much. The vulnerable person is usually among several beneficiaries, which may include siblings, children, or charities.

The Key Benefit

It provides maximum flexibility. Trustees can respond to the beneficiary’s changing needs and updates in government benefits policy. Like a DPT, the assets do not impact means-tested benefits.

Consideration

This remains a strong option if the beneficiary’s eligibility for DPT status is uncertain or if the primary aim is to ensure that any remaining capital passes to the wider family later. However, it may attract less favourable tax treatment, such as periodic Inheritance Tax charges, compared to a DPT.

The Critical Role of a Will

Your Will is the foundation. It not only specifies who inherits your assets, but also allows you to nominate guardians for minor children and establishes the trust mechanism to manage assets for an adult beneficiary. Without a Will, intestacy rules apply, passing assets directly. This can be disastrous, leading to a loss of benefits.

Letter of Wishes

A trust deed is a legal document, but it cannot cover every detail of your loved one’s life. That’s why a Letter of Wishes is valuable. This non-binding document sits alongside the trust and acts as a personal guide for your Trustees. Use it to outline:

– The beneficiary’s routines, medical needs, preferences, and dislikes.

– Your principles for how the money should be used (e.g., prioritising quality of life, travel, or therapy over basic living costs that might be covered by state benefits).

– Advice on communicating with the beneficiary’s primary care providers or guardians.

– Your long-term plans for any capital remaining after the beneficiary’s death.

Choose Your Trustees and Successors Carefully

The individuals you choose to manage the Trust become the de facto financial managers of your loved one’s future. This role requires financial expertise, administrative discipline, and a thorough understanding of the beneficiary’s needs.

Consider a Mix of Personal & Professional

Many choose a combination of family members—who offer compassion and personal insight—and a professional trustee, who provides legal and financial expertise and ensures compliance with HMRC and DWP regulations.

Address Capacity

If the vulnerable beneficiary is an adult and still has legal capacity, encourage them to establish Lasting Powers of Attorney (LPAs) to appoint someone to manage their affairs should they later lose capacity.

Our Advice

Planning for a vulnerable or disabled loved one is arguably the most complex and crucial form of estate planning. It involves navigating the intersection of HMRC tax rules, DWP benefit regulations, and the deeply personal needs of your family.

This is not a do-it-yourself task. To protect your loved one’s inheritance and ensure their vital benefits, always seek advice from experienced lawyers specialising in Wills, Trusts, and the Court of Protection, alongside a financial advisor. Additionally, carry out regular reviews to keep the arrangements compliant with current legal and tax regulations.

The peace of mind gained from a properly secured future is invaluable. For more information or assistance, please feel free to contact us. We are here to help.

‘My Spouse Can Sort It…’  Debunking Myths About Powers of Attorney

Clients often hesitate to establish Lasting Powers of Attorney (LPAs). Yet, these crucial legal documents are vital for future planning. However, many people often misunderstand them and believe common myths about them.

LPAs enable you to appoint one or more trusted individuals, known as your “Attorneys,” to act on your behalf if you lose mental capacity. They help ensure your wishes are respected, whether the decisions concern your Property and Financial Affairs or your Health and Welfare.

Sadly, not everyone has lasting powers of attorney. There are numerous reasons for this. Here, we dispel the most common misconceptions to help you understand their importance.

Myth 1: “An LPA means I lose control of my finances and life immediately.”

The Reality: This is arguably the greatest fear, but it’s simply not true. You remain in control. 

As long as you have the mental capacity to make your own decisions, you continue to do so. Your Attorney should only step in to help when necessary. Furthermore, they must always support you in making your own choices wherever possible.

Crucially, as long as you have mental capacity, you can revoke or cancel an LPA at any time. This essential safety net ensures you retain the power to change your mind or remove an Attorney if circumstances change.

When LPAs come into effect:

1. A Health and Welfare LPA can only be used if you lack the mental capacity to make specific health or care decisions.

2. A Property and Financial Affairs LPA is used either when you lose capacity or, if you specifically allow it, while you still have capacity. For example, if you are physically unable to manage your accounts due to illness or travel. However, even if it is registered, you still have the right to make decisions for yourself until your capacity is lost.  

Myth 2: “I have a Will, so I don’t need an LPA.”

The Reality: A Will and an LPA are two entirely separate documents that cover different stages of your life.

A Will only takes effect after your death, specifying how your estate is to be divided. An LPA only functions during your lifetime, covering decisions about your finances, property, health, and welfare while you are alive but unable to make them yourself. If you lose capacity without an LPA, your Will cannot manage your affairs while you’re alive.

Myth 3: “My spouse/partner/next-of-kin can automatically step in and manage everything.”

The Reality: This is a significant misconception. The term ‘Next of Kin’ has no legal authority over your financial matters or medical treatment.

1. Even a married spouse or civil partner cannot automatically access bank accounts held solely in your name, sell your property, or make health and care decisions for you without an LPA.

2. If you lose capacity without an LPA, your family must apply to the Court of Protection to be appointed as a Deputy. This process is much more costly, time-consuming, and stressful than setting up an LPA in advance, and the person appointed may not be the one you would have chosen. 

Myth 4: “LPAs are only for the elderly or those with serious illness.”

The Reality: Loss of mental capacity can happen to anyone at any age due to a sudden accident, a stroke, a sudden illness, or even temporary unconsciousness.

You need the mental capacity to create an LPA. Waiting until it is actually needed is often too late. Setting up an LPA is an important part of planning that every adult should think about, no matter their current health or age.

Myth 5: “My Attorney has unlimited power to do whatever they want with my money.”

The Reality: Attorneys are bound by strict legal duties and must always act in your best interests, in accordance with the principles of the Mental Capacity Act.

1. They must make decisions they genuinely believe are in your best interests. For a Health and Welfare LPA, they must consider your past and current wishes and feelings.

2. They must be accountable. For example, they should keep your money separate from their own. They must maintain clear financial records. Additionally, the Office of the Public Guardian (OPG) can investigate them if there are concerns about their conduct. You can also include binding instructions and explicit preferences in the LPA document to guide your Attorneys. 

Our Advice

LPAs are a vital ‘insurance policy’ for your future. When you are at your most vulnerable, LPAs provide peace of mind. Someone you have actively selected, whom you trust, will make decisions on your behalf. They understand how you would want them to act if you are ever unable to speak for yourself. So, don’t let these common myths stop you from taking control of your future planning.

Please don’t hesitate to contact our specialist team for more information or advice. We’re here to help.

Buying or Selling a Home with Solar Panels

With 1.6 million homes now fitted with solar panels, it comes as no surprise that clients often ask whether solar panels affect the sale or purchase of a property.

Undoubtedly, solar panels are a valuable asset, providing energy savings and environmental benefits. However, when relocating, they pose a unique set of legal and conveyancing challenges. Buyers and their lawyers must request a comprehensive set of documents from the seller. These documents should confirm that the installation and maintenance are properly recorded.

The key to a smooth transaction is simple: transparency and preparation. Here’s an overview of what every buyer and seller should know when managing a property sale involving solar panels.

1. The Critical Distinction: Owned vs. Leased

The first and most important question is: Who owns the solar panels? The legal process varies considerably depending on whether the seller owns the panels outright or if they are part of a ‘Rent-a-Roof’ scheme, Power Purchase Agreement (PPA), or lease.

If the Panels Are Owned Outright (Best-Case Scenario)

FOR SELLERS

The panels are regarded as fixtures and transfer with the property, just like your boiler or built-in oven. Collect all installation and ownership documents for the buyer.

FOR BUYERS

You inherit the system and its energy benefits. Your conveyancer will focus on the system’s documentation. It’s advisable to use a qualified (specialist) electrician to check the solar panel’s condition. See section 3 below.

If the Panels Are Leased or under a PPA (Potential Complication)

The Agreement

The solar company owns the panels and has a long-term lease of the roof space, often lasting 20-25 years. The seller effectively acts as a landlord, and the buyer must agree to assume this tenant-landlord relationship.

Transferring the Lease

The sale requires the buyer to assume the existing lease or PPA. This involves a formal transfer process with the solar company, including a credit check on the buyer.

Lender Hesitation

Many mortgage lenders have strict requirements for approving homes with leased solar panels. If the lease does not meet their criteria (often based on industry guidelines), they may refuse to lend, which can derail the sale.

Exit Strategy (Seller)

If the buyer refuses to assume the lease, the seller might need to consider expensive options such as buying out the remaining lease or removing the panels entirely, which require permission and involve significant costs.

2. Essential Documents: What to Prepare or Demand

In a solar panel transaction, paperwork is paramount. Whether buying or selling, your legal adviser will need to review a complete set of documents to ensure the installation is compliant and the transfer is secure.

Document	Why it Matters	Owned System	Leased System
Lease/PPA Agreement	Defines all obligations, payment terms, and transfer requirements.	❌	✅
MCS Certificate (Microgeneration Certification Scheme)	Proof the installation meets industry standards. Crucial for mortgage lending and utility schemes.	✅	✅
Electrical Compliance Certificate (e.g., Part P)	Confirms the associated electrical work is safe and complies with building regulations.	✅	✅
Roof Survey/Structural Report	Proves the roof can support the panels’ weight.	✅	✅
Planning Permission/Covenant Consent	Evidence that the installation complied with local planning rules or property deed restrictions.	✅	✅
Warranties & Maintenance Records	Verifies the system is in good repair and shows what is covered and for how long.	✅	✅
Feed-in Tariff (FIT) or Smart Export Guarantee (SEG) Paperwork	Shows the transfer process for the financial benefit (payment for exported electricity).	✅	✅
Loan/Finance Documents	If the panels were financed, proof that the seller will pay off any outstanding loan tied to the property at completion.	✅	❌

 

3. Due Diligence: Buyers, Check This List!

If you buy a house with solar panels, don’t just concentrate on lower utility bills. A buyer’s due diligence must go beyond the standard home survey.

Lease Transfer

For a leased system, ensure your mortgage lender officially approves the specific lease agreement and that you meet the solar company’s credit requirements for the assignment.

FIT/SEG Transfer

Make sure the seller finishes the necessary paperwork to transfer the benefit of any Feed-in Tariff or Smart Export Guarantee payments into your name once the process is complete. This is a common cause of delays.

Roof Structure

The solar panel equipment can add weight to the roof. It is always recommended that a thorough structural survey be conducted.

Get a Solar Inspection

A standard home survey might not include the electrical system or solar components. Consider hiring a specialised solar electrician to assess the system’s performance and condition.

Also, verify that the provider and installer are members of the Renewable Energy Consumer Code (RECC). Crucially, confirm that only MCS-approved equipment and MCS-certified installers were used. In many cases, mortgage lenders will not proceed unless the panels meet MCS standards.

Review Maintenance Responsibilities

If the panels are owned, who covers the costs of future maintenance? If leased, who is responsible for damage and removal, such as roof repairs? The documents must clearly specify this.

Planning Permission

Installing solar panels is usually considered permitted development. However, if the property is in a conservation area or is a listed building, planning permission is required instead. Other situations may also require planning permission, even if the property isn’t listed or in a conservation area. Buyers should check with their surveyor and solicitor to confirm.

Building Regulations

Typically, these are not necessary for solar panel installation, but a certificate for the electrical work might be required. Your solicitor should verify its availability.

Impact on Future Plans

Your solicitor should check the lease agreement for any restrictions on future property modifications, such as extensions or loft conversions, that might impact the panels.

4. Sellers: Advice for a Smoother Transaction

Get Organised Early

Gather all documents, especially the lease and Microgeneration Certification Scheme (MCS) certificate, as soon as you decide to sell. Missing paperwork is the main cause of delays.

Be Transparent

Disclose the ownership status (whether owned or leased) and provide all relevant documents in advance to your conveyancer and potential buyers.

Consider a Buyout

If you have a leased system, think about whether buying it is financially sensible. This is because owning the system can be more attractive to cash buyers and mortgage lenders.

5. Buyers: Advice for a Smoother Transaction

Involve Your Conveyancer

Inform your conveyancing solicitor about the solar panels immediately. They need to start the title check and lender inquiry regarding the lease or ownership.

Verify Certifications

Insist on viewing the MCS and electrical/energy performance certificates. A lack of these can highlight safety concerns and impede future saleability.

Factor in Ongoing Costs

Understand the remaining lease or PPA duration and monthly payments. Also consider future maintenance costs if the panels are owned.

Our Advice

Working with a conveyancer experienced in handling properties with solar panels is essential for both buyers and sellers.

As a seller, a specialist lawyer ensures that you prepare all the necessary documentation early, helping you avoid common issues and delays that could jeopardise your sale. As a buyer, they will assist you in asking the right questions and reviewing all the documentation so you fully understand the financial and legal obligations you are undertaking.

For further advice or information, please do not hesitate to contact us. We’re here to help.

Paw-sitive Planning in Your Will

Ensuring Your Pet’s Future

We all regard our pets as family. They offer steadfast companionship, a listening ear, and unconditional love. Yet, although they occupy a priceless place in our hearts, UK law legally treats pets as personal property—akin to furniture or jewellery.

This legal classification means your beloved dog, cat, parrot, or horse cannot directly inherit money or assets from your Will. So, what happens to them when you’re no longer here? Without a specific legal arrangement, their future is left to chance. This could mean their care depends on the uncertain goodwill of your next of kin or, in the worst case, an animal shelter.

If you are one of the many UK pet owners, including a provision for your pet in your Will isn’t just a kind gesture—it’s a vital part of responsible estate planning. Since a pet can’t be a beneficiary, your Will must be structured differently to secure their lifelong care. Here are the three most common methods used:

Option One: Appoint a Guardian and Make a Conditional Gift

This is the simplest and most common approach:

Name a Pet Guardian

Your Will can clearly specify who you wish to take ownership and care of your pet (e.g., “I give my cat, Whiskers, to Jane Doe…”). This legal clause transfers ownership of the pet (the ‘property’) to a designated person.

NB: Always discuss this with the person you have chosen first. Make sure they are willing and financially able to undertake this long-term responsibility, and appoint a backup guardian in case they cannot meet their obligations.

Leave a Financial Legacy

You can specify an amount of money to be given to the named guardian to help cover the ongoing costs of your pet’s care (food, vet bills, insurance, etc.).

NB: Be aware that once the gift is made, the guardian is generally not legally obliged to spend the money exclusively on the pet. Therefore, you must place a great deal of trust in the named individual using this method.

Option Two: Establish a Pet Trust (Trusts of Imperfect Obligation)

A Pet Trust could be your best choice if you have a substantial estate, an expensive animal (such as a horse), or desire greater control over the funds.

• Trustees oversee a designated sum of money held in a trust.

• The trust deed states that the Trustees must utilise the funds exclusively for the care and maintenance of your pet.

• The trust should have a definite end date, usually the death of the pet, and is generally limited to a maximum of 21 years under UK law.

• Although more complex and expensive to establish, a Pet Trust provides the strongest legal assurance that the funds will be used as intended.

Option Three: Use an Animal Welfare Charity Scheme

Many major UK charities, like the RSPCA, Dogs Trust (Canine Care Card), and Cats Protection, offer rehoming services.

• By enrolling in their scheme and including the charity in your Will, you legally transfer your pet to them after your death.

• The charity will then find your pet a suitable new home. It is common to leave a financial donation to the charity to support this work.

• This is an excellent option if you don’t have a friend or family member who can take on your pet.

Letter of Wishes

Regardless of which method you choose, a Will is not the place for detailed daily instructions. Instead, your solicitor can help you draft a Letter of Wishes to accompany your Will.

Although this document is not legally binding, it provides invaluable guidance to your pet’s new caregiver, covering:

• Daily routine and exercise.

• Dietary needs and favourite foods.

• Medical history, current medication, and veterinary details.

• Favourite toys, habits, and personality quirks.

Ultimately, this letter helps make your pet’s transition smooth, so they can carry on their new life with the same love and caring they have always known from you.

Our Advice

Failing to plan for your pets can cause issues for your family during difficult times. Including a clear clause in your Will can provide peace of mind. It can also help prevent disputes and ensure your pets are cared for. Furthermore, it’s wise to consider future pets. Even if you don’t have any now, you can prepare by carefully wording your Will. This way, any pets you acquire later will be loved and looked after as you wish.

If you need further information or advice about structuring your Will, please don’t hesitate to contact us. We’re here to help.

Amending Your Will

Are Codicils a Good Idea?

Life constantly changes, and sometimes your last Will needs updating to reflect new circumstances. When you need to make a minor change to an existing Will, you might consider using a codicil. But are they really a good idea?

A codicil is a separate legal document that officially amends, rather than replaces, a previously executed Will. Although they may seem like a quick fix, they often lead to complications that make them a risky choice.

The Argument Against Codicils

Using a codicil can lead to significant problems during probate, primarily because it raises the likelihood of errors and confusion.

1. Increased Risk of Contradiction and Confusion

The main concern is the risk of confusion or inconsistency. A codicil must be read alongside the original Will. If the codicil’s wording is not entirely clear or directly contradicts a clause in the original Will, it causes uncertainty.

Moreover, there is no limit to how many codicils a person can add. However, having multiple codicils can create a confusing collection of amendments that might contradict each other—or even the Will itself.

This resulting ambiguity often requires court interpretation, resulting in:

• Higher legal costs.
• Delays in distributing assets.
• Family disputes over your intentions.

2. Higher Risk of Loss or Mismatch

You must keep the codicil with the original Will to ensure it is valid. If one document is lost or becomes separated, the probate court might find it difficult to determine your true final wishes. The process then becomes complicated, and the court may only work with the documents it can find.

3. Execution Requirements Are Strict

A codicil is not just a signed note. It must be executed with the same formal legal requirements as the original Will, including proper witnessing and signing. People often attempt to create a codicil informally, which can invalidate the document and potentially render your entire Will vulnerable to challenge.

4. Absence of a Thorough Review of Your Will

When you prepare a Codicil to amend your Will, you naturally concentrate on the specific changes or additions you wish to make without reviewing the entire document. This can lead to overlooking subtle inconsistencies or contradictions between your original Will and the Codicil, which may result in disputes among beneficiaries and legal challenges.

When a Codicil Might Make Sense

While a new Will is almost always the preferred option, a codicil might be suitable in limited circumstances. For example:

For a Single, Minor Change: If you need to make just one very small, non-controversial adjustment—such as correcting a minor factual error (like a street address) or changing the name of a non-fiduciary beneficiary—a carefully drafted codicil may be suitable.

When Challenging Capacity Is a Concern: In situations where the Testator’s (the person making the Will) capacity or susceptibility to undue influence might be questioned, a new Will can be vulnerable to a challenge that could invalidate the entire document. In contrast, a simple codicil makes only a limited change, meaning any successful challenge only affects the codicil, leaving the substance of the older, presumably sounder Will intact.

Crucial Note: This careful use of a codicil is complicated and should only be carried out under the direct supervision of a qualified lawyer who can properly record the Testator’s capacity at the time of signing.

When Should You Consider Creating a New Will?

In most cases, drafting a new Will that explicitly revokes all previous Wills and codicils is the safer and more precise choice.

Type of Change	Recommended Action	Reason
MINOR CHANGE (e.g., updating an address, adding a small specific gift)	New Will (preferred) OR Codicil (if language is simple)	A new Will ensures a single, cohesive document. If you use a codicil, the language must be precise.
MAJOR CHANGE (e.g., changing the executor, removing a beneficiary, significant asset reallocation)	New Will	Minimises confusion; a new Will cleanly supersedes all prior instructions
MULTIPLE CHANGES (over time)	New Will	Avoids a "patchwork" of documents (a Will and multiple codicils) that become difficult to manage and interpret.

The Clarity Advantage

A new Will provides a single, clear document that clearly states your most recent wishes. It eliminates confusion over which document controls specific assets or instructions, offering you and your family greater peace of mind.

Our Advice

While codicils may initially save time and money, their potential for causing confusion, legal conflicts, and prolonged probate makes them a poor long-term solution for estate planning. Always seek advice from specialist estate planning lawyers before modifying your Will. They can help determine if a codicil suits your simple, specific needs or if creating a new, clear Will would better ensure your wishes are carried out smoothly and without dispute.

For more information or assistance with Wills or LPAs, feel free to contact us. We are here to help.

 

The Risks of Private Promises in Your Will

A Cautionary Tale from Lorenz v Caruana

Secret trusts, a unique and longstanding feature of English law, continue to spark debate and present complex challenges in estate planning. These trusts allow a person to leave property to a secret trustee in their Will, with a private, unwritten understanding that the property will benefit another person, the beneficiary. The recent Court of Appeal decision in Lorenz v Caruana highlights the legal complexities and risks associated with these arrangements.

What are Secret Trusts?

A secret trust functions outside the formal requirements of the Wills Act 1837. This is its main feature and also its greatest weakness. There are two types:

1. ‘Fully Secret’ trusts do not mention a trust at all. The gift appears to be an outright bequest to the named individual, who has privately agreed to hold the property on trust for another.

2. ‘Half-Secret’ trusts stipulate that the property is to be held on trust, but the specific terms and the identity of the beneficiary are not disclosed. The Will might say, “I leave £X to Y for purposes I have communicated to them before my death.”

To be valid, a secret trust requires three elements:

1. The testator must have intended to impose a binding obligation on the trustee, rather than merely expressing a wish.

2. The testator must have communicated the trust’s existence, including the terms of the trust, during their lifetime.

3. The trustee must have accepted the obligation, either expressly or by implication (e.g., through silence). 

The Pros and Cons of Secret Trusts

The main benefit of a secret trust is the confidentiality it provides. A Will becomes a public document after a grant of probate is issued, so a testator may use a secret trust to discreetly provide for a person they do not wish to be publicly identified with, such as a partner from an extramarital relationship or an illegitimate child.

Despite this, the disadvantages are significant and should be carefully considered.

1. Difficulty of Proof: Due to their very nature, secret trusts are extremely difficult to prove, as the evidence often relies on conversations and recollections, which can be inconsistent or unreliable.

2. Risk of Failure: If a secret trust is not clearly communicated or proven, the trustee might keep the property for themselves, undermining the individual’s intentions. When a half-secret trust fails, the property generally reverts to a resulting trust for the estate’s residuary beneficiaries, not the trustee.

3. Potential for Litigation: Disputes over secret trusts often result in expensive and lengthy court conflicts, causing family divisions and diminishing the estate’s worth.

The Lorenz Case

Millionaire Alan Lorenz, who died in 2021, intended to provide for his siblings, leaving half of his estate to them and half to his partner, Sheila Caruana. He disliked paying tax and, to avoid inheritance tax, entered a civil partnership with Caruana. This created a spousal exemption. His final Will left his entire £18 million estate to her. However, his siblings sued, claiming he had created a secret trust, alleging he had a verbal agreement with Caruana to hold part of the estate for them, supported by solicitor notes mentioning instructions and plans for gifts.

The Initial Rulings

1. The Master of the High Court initially permitted the siblings’ claim to proceed to trial, determining that it had a “realistic prospect of success.”

2. A High Court judge overturned the Master’s decision, concluding there was no reasonable prospect of establishing a secret trust. The judge found that Lorenz’s intention to avoid inheritance tax, combined with the absence of clear, written instructions, undermined the siblings’ claim.

3. The Court of Appeal overturned the High Court judge’s ruling, concluding that the siblings’ case was strong enough to proceed to a full trial. The court emphasised that a ‘mini trial’ on limited evidence was improper and that a full hearing was necessary to properly assess the facts.

Lessons from the Lorenz Case

The Lorenz case illustrates the uncommon and risky nature of secret trusts. If a secret trust fails—for example, if the secret trustee dies—the intended beneficiary might never receive the gift. Disputes can also arise if the secret trustee denies the trust’s existence and claims the gift for themselves. Given the nature of these gifts, evidence may be limited or absent. This makes it difficult for the final beneficiary to prove the trust’s existence.

When confidentiality is essential, those preparing Wills might consider alternatives. These include establishing discretionary trusts with private letters of wishes to trustees. Unlike a Will, these do not become public records.

Ultimately, the Court of Appeal’s decision in Lorenz v Caruana offers some hope for claimants of secret trusts. However, it does not serve as a decisive endorsement. The case highlights the enduring principle that, in estate planning, clarity is generally better than secrecy.

Please do not hesitate to contact us if you have any questions about your Will or other estate planning matters. We are here to help. 

A Checklist for Making a Will

Thinking about your Will may not seem glamorous, but it is essential for protecting your loved ones’ future. A Will is a legal document that explains how you share your assets and who will care for your minor children and estate. Without one, intestacy laws decide these matters, and they might not align with your wishes. To make things easier, here’s a simple checklist of key points and items to consider when preparing your Will.

Details of What You Own & What You Owe

Take stock of all your possessions. This includes: 

• Property: This includes all types of real estate: your home, holiday homes, and land.
• Financial Accounts: List your bank accounts, investment portfolios, and pension funds. Note that some financial products have their own designated beneficiaries, which can override your Will. It’s essential to review these.
• Personal Property: For example, your car, any other vehicle, jewellery, art, furniture, and other valuable items.
• Digital Assets: Don’t forget your social media accounts, domain names, digital photographs, and cryptocurrencies.
• List Your Liabilities: Ensure you have an overview of your debts, such as mortgages, loans, and credit card balances. Your executor will need to handle these. 

Specifying Your Beneficiaries

If you leave your estate to multiple beneficiaries, think carefully about how to distribute your assets. While it may seem unnecessary to make a detailed list, recent life changes like births, deaths, marriages, and divorces could influence who you want to include in your Will. You don’t need to include every detail now—just focus on who’s involved and ensure you haven’t missed anyone.

• Specific Gifts (Bequests): If you wish to leave a particular piece of jewellery to your niece or a sum of money to a charity, you should be as precise as possible to avoid confusion.
• Residuary Estate: This is what remains of your estate after all debts, taxes, and specific gifts have been settled. You should specify who will inherit this residual part (e.g., “the remainder of my estate shall be divided equally among my three children”).
• Contingency Plans: Your Will should specify what happens to a beneficiary’s share if they die before you do. For example, does it go to their children (known as per stirpes) or back into the residuary estate to be divided among the remaining beneficiaries?

If you aim to exclude someone from your Will, it’s usually not simple. Consult a legal professional to minimise the chance of future disputes.

Appointing Key Roles

• Executor(s): You need to specify the person or people who will manage your estate, settle any debts, and distribute your assets according to your wishes. Choosing the right individuals is essential. You need someone you absolutely trust to act in your best interests and those of your beneficiaries. Consider the advantages of appointing a professional (such as a solicitor or accountant). Additionally, you should also nominate at least one substitute executor in case your first choice is unable or unwilling to act.
• Guardian(s) for Minor Children: If you have children under 18, this is arguably the most critical part of your Will. Think about how you want to provide for your children. You can appoint a guardian to raise them and handle their inheritance. You should also designate a backup guardian.

Other Important Considerations

• Pets: Don’t forget your furry friends. You can use your Will to name a caregiver and set aside funds for their care.
• Funeral Arrangements: You can include a letter of wishes with your Will to express your preferences for your funeral, burial, or cremation. While not legally binding, this provides clear guidance for your loved ones.
• Digital Assets: You can create a secure list of passwords and usernames to make it easier for your executor to access your digital life.
• Inheritance Tax (IHT): A note about IHT: the current threshold is £325,000. So, if the total value of your estate (minus debts or loans) exceeds this amount, it may be subject to IHT. Usually, married couples and civil partners can transfer their unused allowance to each other. This means that on the surviving partner’s death, the estate may be able to claim both allowances, currently £650,000. Additional tax relief, the Residence Nil Rate Band, may also apply. Depending on your circumstances, lifetime gifts and other provisions can help to minimise IHT. This is a complex area, so we advise you to seek specialist advice.
• The Formalities: Under the Wills Act 1837, your Will must be signed in the presence of two witnesses at the same time. These witnesses must also sign the Will in your presence and cannot be beneficiaries or their spouses/civil partners, as this would invalidate their gift. While it’s technically not required for a Will to be dated or witnessed by a lawyer to be valid, it’s advisable to do both to ensure clarity and validity.
• Lasting Powers of Attorney: Lasting Powers of Attorney (LPAs) are as vital as making a Will, if not more so. If you lose capacity without an LPA, your family cannot simply take control of your finances, even to pay for your care. They would need to apply to the court, which can be a time-consuming and costly process.

Our Advice

Creating a Will is a responsible act of love. It provides peace of mind, ensures your wishes are respected, and protects your loved ones from the financial and emotional burden of managing your estate without clear instructions. If you need more advice about making a Will or LPAs, please feel free to contact us. We’re here to help.

Equity Release: Unlocking Home Wealth Responsibly

Equity release continues to grow in popularity among older homeowners in the UK, driven by increasing property values and the desire for extra retirement income. This option allows homeowners, typically aged 55 and over, to access the equity in their home without moving. They can opt to receive a tax-free lump sum or regular income, depending on their property’s value.

This financial product acts as a lifeline for those who are “house rich but cash poor,” providing funds for various needs such as boosting retirement income, settling an existing mortgage, funding home improvements, or supporting family members. While it offers a helpful solution, it is a major financial decision that reduces the value of your estate. Therefore, seeking advice from qualified legal and financial professionals.

Understanding the Equity Release Council’s Standards 2.0

The Equity Release Council (ERC) plays a crucial role in regulating and safeguarding the equity release market. Its members, who comprise over 99% of the market, must follow a strict set of rules and a Code of Conduct. The recent introduction of Standards 2.0 marks a major step forward in consumer protection and transparency. These new standards, which came into effect in May 2025, aim to clarify the process, improve safety, and increase accessibility for consumers. The updates primarily address key consumer concerns, with two major changes leading this development.

The New Sixth Product Standard

One of the key updates in Standards 2.0 introduces a sixth product standard that addresses homeowners’ concerns about long-term care. Starting on 6th May 2025, lenders following Council rules will waive early repayment charges if a borrower moves permanently into long-term care. Importantly, this now includes both care home placements and informal arrangements with relatives, provided a medical practitioner’s certificate is submitted, which was not previously covered. This change offers peace of mind, helping families avoid unnecessary charges during often difficult times, both emotionally and financially.

The Consumer Charter

The ERC has introduced a new Consumer Charter alongside the new product standard. This document clearly outlines what customers can expect from an ERC member and is designed to be shared with them.

The charter is built around four key promises:

– Trusted insight, where advice will come from regulated and qualified professionals;

– Tailored advice, where recommendations are customised to your individual circumstances;

– Thorough support, ensuring you are supported throughout the decision-making process with comprehensive information; and

– Transparent communication, where all aspects of the process, including fees and charges, will be explained clearly and straightforwardly.

The Consumer Charter demonstrates the ERC’s commitment to providing a positive and secure experience for all customers, and its principles extend the values embedded in the new product standard.

Our Advice

These improvements mark a positive step for the equity release sector. Updated standards provide more flexibility and protection, particularly for individuals relocating to access care. The Consumer Charter boosts transparency and trust, helping you make informed decisions. However, the updates stress the importance of consulting an ERC member firm, which offers security through a “no negative equity guarantee.”

Equity release can seem like a simple solution. But awareness of potential downsides is essential. Hidden fees, rising interest rates, and impacts on inheritance are just a few things to consider. Seeking independent legal advice is also crucial to protect your interests and estate. Despite reforms, expert guidance remains vital for understanding the details, long-term implications, and suitability of products.

Consider talking with your family, as they might have some valuable insights to share. Also, for more details, advice, or a quote, feel free to contact us. We’re always here to help.

Beyond the Notary Stamp

In an increasingly globalised world, a simple document—such as a degree certificate, power of attorney, or birth certificate—can become a complex legal obstacle when it needs to be used abroad. The requirement for an apostille or consular legalisation aims to prevent fraud and safeguard the integrity of public records across borders. For both individuals and organisations, this process is a vital step towards ensuring smooth international transactions. As this is a subject we’re frequently asked about, we thought it might be helpful to clarify the process.

Apostille vs. Legalisation: What’s the Difference?

Both terms are often used and are closely related.

An apostille is a simplified procedure used between countries that are members of the Hague Convention. It’s a single-step process. Once your document has an apostille, it is valid for use in any other member country.

Legalisation (or “Consular Legalisation“) is the traditional, multi-step process for countries that are not part of the Hague Convention. It often involves obtaining the document apostilled first, then having it authenticated by the embassy or consulate of the destination country. Although it can take more time, it serves the same purpose as validating your document for international use.

When Do You Need an Apostille or Legalisation Service?

You will likely need these services for various personal and business documents, including:

• Academic documents, such as degree certificates or transcripts, often needed for job applications or studying abroad.

• Civil documents, such as birth, marriage, or death certificates.

• Legal documents, including powers of attorney, affidavits, and court orders.

• Corporate documents are necessary for opening a foreign branch or conducting international business.

How Can a Notary Help?

While the apostille is issued by a government office (in the UK, the Foreign, Commonwealth & Development Office, or FCDO), many documents must first be certified by a notary public before they can be apostilled.

A notary public is an officially appointed legal professional who can verify signatures, seals, and the authenticity of documents. We can:

• Certify copies of your documents as “true and accurate” reproductions.

• Witness signatures on legal documents such as powers of attorney.

• Prepare your documents for the apostille or legalisation process, ensuring they meet the required standards.

• Handle the entire process for you, from certifying the document to managing the application with the FCDO and, if required, the relevant embassy. This saves you time, stress, and the hassle of navigating complex procedures.

We’re Here to Simplify the Process

Navigating the world of apostilles and legalisations may seem daunting, but it need not be. We understand the requirements and can provide the expert service needed to ensure your documents are properly prepared and accepted abroad.

Don’t let paperwork hinder your next adventure. If you need any information or advice, please contact us today or click here for an instant online quote.

Exchanging and Completing on the Same Day

The Risks and Rewards of a Speedy Sale

In the world of property transactions, the process of exchanging contracts and completing the sale is usually a two-step process. First, there’s the exchange, where legally binding contracts are signed, and a deposit is paid. Then, there’s completion, the day the keys are handed over and the property officially changes hands. The gap between exchange and completion provides both parties with certainty and time to prepare for the move.

However, a growing trend is for buyers and sellers to exchange and complete on the very same day. While less common, there’s no legal reason why this can’t happen. Known as simultaneous exchange and completion, this approach can speed things up, but it also brings its own set of risks and challenges. So, why does it happen, and what should you be aware of?

The Appeal of a Speedy Sale

For many, the primary motivation for a same-day exchange and completion is convenience. It eliminates the stressful gap between committing to a purchase and receiving the keys. This is often an attractive option if the property is already vacant or if the transaction isn’t part of a chain, meaning the buyer and seller don’t need to physically move homes on the day.

In cases that do involve chains, this approach can simplify the process, ensuring everyone moves at the same time and preventing possible breakdowns. It can also be a solution when a buyer or seller faces a strict deadline, such as a mortgage offer expiry or a sudden relocation.

Estate agents often support this approach, as it can speed up their commission and offer a quick resolution for their clients. It can also serve as a way to keep momentum in a transaction that might otherwise stall.

The Dangers Lurk in the Details

While the appeal of a quick sale is understandable, there are significant risks. The most serious risk is the limited time to prepare. The interval between exchange and completion is not merely for packing boxes; it is a vital period for final inspections and financial arrangements.

Financial Issues: Mortgages and fund transfers can pose substantial obstacles. If a lender’s funds are delayed or a technical problem occurs with a bank transfer, the entire process can come to a halt. This could leave buyers without a home on the day of completion and may even breach the contract, resulting in financial penalties.

Last-Minute Challenges: A same-day exchange and completion leave no room for a final property check. What if the seller has not vacated all their belongings? What if the boiler has failed since your last visit? Without that buffer period, your options are limited before the keys are handed over. Discovering these problems after completion can lead to costly and lengthy disputes.

Insurance and Utilities: The buyer is usually responsible for insuring the property from the moment of exchange. A same-day transaction can create ambiguity, possibly leaving the buyer uninsured if they haven’t had the chance to organise a policy. Likewise, there’s no time to notify utility companies, which can cause issues with supply and billing.

Pressure and Stress: The demand to complete everything on the same day can be overwhelming. It places considerable strain on solicitors, lenders, and those involved, increasing the risk of mistakes and oversights. The stress of moving is heightened by the uncertainty of whether you’ll be moving until the very last moment.

How to Mitigate the Risks

If you are considering a same-day exchange and completion, proactive preparation is key. Talk to your lawyer to ensure your legal team is fully on board with a robust plan, experienced in this type of transaction, and able to advise you on specific risks. Communicate with your lender to confirm they can guarantee the timely transfer of funds. Arrange everything in advance—building insurance, removals, and utility transfers—so you’re ready to execute these tasks immediately upon exchange. Additionally, familiarise yourself with the contract terms, especially regarding delayed completion and penalties involved.

Our Advice 

Exchanging and completing on the same day can be an efficient solution for a specific set of circumstances. However, it requires meticulous planning and a complete understanding of the risks. While the promise of a swift and seamless move is appealing, it’s essential to weigh that against the potential for significant financial and logistical complications.

Ultimately, a traditional two-step process, while slower, provides a necessary layer of protection and peace of mind for what is likely the most significant financial transaction of your life. If you need support or advice about the purchase or sale of your property, please don’t hesitate to contact us. We’re here to help.

The Changing Landscape of Lasting Powers of Attorney

A New Dawn for LPAs?

Lasting Powers of Attorney (LPAs) are vital legal documents that ensure individuals have a trusted person to manage their affairs if they lose capacity. Traditionally paper-based, the process has been slow and prone to errors. Recent legislation seeks to digitise LPAs and introduce safeguards. Many legal professionals support the reforms to improve the process, but concerns remain about the safety and accessibility for vulnerable individuals. Despite backing for modernisation, consulting a legal professional remains essential.

The Powers of Attorney Act 2023

The Powers of Attorney Act 2023, which received Royal Assent in September 2023, is the foundation of these reforms. Although the Act is concise, it sets the scene for significant changes by amending the Mental Capacity Act 2005. Its primary goal is to modernise the LPA process and enhance protections against fraud and abuse.

What’s Changing?

The 2023 Act, although not yet fully enacted, introduces significant changes, including:

• A Shift to Digital LPAs: The Act enables the development of an online system for registering and creating LPAs. Done correctly, this could be transformative, as it aims to speed up processing times, reduce human error, and improve accessibility.

• Enhanced ID Checks: The new system will introduce a more robust process for identity verification for those applying for an LPA, adding an extra layer of security to prevent fraudulent applications.

• Donor-Only Registration: Only the person making the LPA, the ‘donor,’ can apply to register it. This change is a safeguard. It ensures the donor has capacity at registration time. It also prevents the attorney from registering the LPA without the donor’s knowledge.

• Expanding the Pool of Objectors: The Act allows more individuals to object to an LPA’s registration, offering an important safeguard against potential misuse.

• OPG Notification Update: The Office of the Public Guardian (OPG) will now notify nominated individuals about LPAS registration. Previously, this task was handled by the donor or their representatives.

The new digital system and its safeguards are currently being developed and will undergo comprehensive testing before full implementation. An improved paper-based process will also remain available for those unable or unwilling to use the digital system.

The Proposed Powers of Attorney Bill (2024-25)

The reforms go even further. The House of Commons has introduced a new Private Members’ Bill, the Powers of Attorney Bill (2024-25). This Bill aims to build on the foundations of the 2023 Act and incorporate additional provisions to strengthen the LPA system.

What’s Proposed?

The Bill proposes to:

• Place Duties on Banks: It seeks to impose new obligations on banks and other financial institutions regarding their handling of LPAs. This approach directly tackles common complaints about banks failing to recognise or appropriately act upon an LPA, which causes significant delays and stress for attorneys.

• Broaden OPG’s Investigative Powers: The Bill aims to strengthen the OPG by giving it greater authority to examine the actions of an attorney. Strengthening the OPG’s powers provides an additional safeguard for vulnerable individuals.

These proposals recognise that the effectiveness of an LPA depends on the system supporting it. Resolving issues with third parties, such as banks, and granting the OPG greater authority should make LPAs more reliable and efficient tools.

Why You Still Need a Lawyer to Prepare Your LPA

With the government’s drive for a streamlined, user-friendly digital system, many individuals might feel tempted to prepare their LPAs online. While the new system aims to be more accessible, consulting a qualified lawyer remains vital. Here’s why:

1. Avoid costly mistakes: The current LPA forms and upcoming digital process have strict requirements. Even minor errors, such as incorrect signatures or spelling mistakes, can lead to rejection. LPA errors in 2023-24 caused over 50,000 rejections, delays, and higher costs. A lawyer’s careful preparation ensures accuracy, saving you time, money, and stress.

2. Tailored Advice and Complexities: Your situation is unique. An online form cannot replace the detailed legal advice a professional can offer. They can help you understand the full implications of your decisions. They also guide you in selecting the right attorney, which can be challenging. Additionally, they support complex cases involving joint property, business interests, or international assets.

3. Protecting Against Abuse and Undue Influence: LPAs give significant authority to attorneys. Lawyers recognise signs of coercion, undue influence, or fraud, acting as a safeguard to ensure you freely establish the LPA and understand its consequences.

4. The Role of the Certificate Provider: The person who certifies your mental capacity for the LPA. While sometimes a close friend may do this, a legal professional is usually best because they have the skills to assess your capacity impartially. Their role is vital in case of disputes. 

5. Peace of Mind: Engaging a lawyer ensures your LPA is legally sound and reflects your wishes. It also makes it harder for others to object later, protecting you and your loved ones when it matters.

Our Advice

The LPA landscape is improving with modernisation, efficiency, and protection. While new digital tools ease the process, legal and personal complexities remain. In a changing world, the expertise of a qualified lawyer is more important than ever.

For more information or advice on LPAs or other estate planning matters, please don’t hesitate to contact us. We’re here to help.

Buying a Leasehold Property

Buying a home is a significant life event, often accompanied by excitement and anticipation. For many, a leasehold property provides an attractive and sometimes more affordable way to enter the property market. However, buying a leasehold is fundamentally different from purchasing a freehold. Recognising these differences early is vital for a smooth and informed journey.

When you buy a leasehold property, you are not buying the land beneath the building. Instead, you gain the right to occupy that property for a certain period – the “lease term.” The land itself remains under the ownership of the freeholder, effectively your landlord, for the length of the lease. This unique relationship raises several important considerations that you need to understand.

The Lease Agreement

This is arguably the most important document in a leasehold purchase. The lease agreement is a legally binding contract that clearly states the rights and responsibilities of both you (the leaseholder) and the freeholder. It covers a wide range of details, from how and when you pay ground rent and service charges, to permitted alterations you can make to your property, and your obligations regarding maintenance and repairs. Your solicitor will thoroughly review this document, ensuring you fully understand every clause and its long-term implications. Understanding this agreement is crucial, as it governs much of your ownership experience.

Annual Ground Rent

Ground rent is an annual payment you make to the freeholder for the right to occupy their land. The amount of ground rent can vary significantly between leases, and importantly, the lease will specify how and when it might increase. Some leases have fixed ground rents, while others include review clauses that could cause the amount to rise, sometimes quite substantially, over time. Your lawyer will highlight any potentially onerous ground rent clauses, such as those that double every few years, as these can impact the property’s future resale value.

Service Charges

These charges cover the costs related to maintaining and managing the communal areas of the building and estate. This generally includes tasks such as maintaining shared hallways, stairwells, roofs, and gardens, as well as essential services like building insurance, cleaning, and sometimes even a concierge service. The freeholder or a designated management company usually collects service charges. They can vary each year based on actual costs, and you may also need to contribute to a “reserve fund” for future major works, such as roof replacements or external redecoration.

The All-Important Lease Length

The remaining lease length is a crucial factor that significantly influences the property’s value and your chances of securing mortgage finance. Lenders are often cautious about providing mortgages on properties with very short leases, typically those with less than 80 years remaining. As the lease approaches expiry, the cost to extend it generally increases, and the property’s market value usually decreases. Extending a lease can be a complex, lengthy, and costly process that involves negotiations with the freeholder. It is advisable to consider the current lease length carefully when viewing properties and to account for potential extension costs if the lease is nearing the critical 80-year threshold.

Management Company

In many leasehold developments, a separate management company is appointed to oversee the day-to-day running of the building. This company acts on behalf of the freeholder, collecting service charges, organising maintenance, and ensuring compliance with the lease terms. It’s crucial to know who the management company is, its track record, and how effectively it manages the building. Your legal team will make enquiries with them, requesting service charge accounts, details of upcoming works, and any disputes within the building.

The Role of Your Legal Professional

When you instruct a lawyer for a leasehold purchase, their role goes beyond just handling paperwork; it’s about protecting your interests. They conduct a thorough investigation into all aspects of the leasehold agreement. This careful process involves:

• Detailed Lease Review: Scrutinising every clause of the lease agreement, identifying any potentially onerous terms or hidden liabilities that could affect you in the future.

• Financial Due Diligence: Confirm any outstanding ground rent or service charge arrears that the current owner might owe, to ensure you do not inherit unexpected debts.

• Freeholder and Management Company Enquiries: Making essential enquiries of the freeholder or management company. This includes requesting service charge accounts from previous years, details of planned major works, any known disputes among residents, and information about the building’s insurance.

• Advising on Lease Length and Implications: Clearly outlining the consequences of the current lease duration, including any potential issues with securing a mortgage or resale in the future, and providing guidance on the process and costs involved in a lease extension if necessary.

• Title Investigations: Confirming the property’s title is clear and free from undisclosed encumbrances or restrictions.

Our Advice

While this blog provides a general overview, it is important to remember that each leasehold property transaction is unique. Understanding these key aspects enables you to make well-informed decisions.

If you’re considering purchasing a leasehold property and require specialised legal advice or further information about any element of conveyancing, please don’t hesitate to contact us. Our team is here to help.

What to Do When the Sole Executor Steps Aside

How to Administer an Estate

Dealing with the death of a family member is a profoundly difficult time. The emotional weight is substantial. Sadly, when there are legal complications, particularly concerning the deceased’s estate, the emotional burden grows heavier. A common source of disagreement occurs when the only executor named in a Will is unwilling or unable to carry out their duties, leaving the family in a state of uncertainty.

A Brief Recap of The Executor’s Role

First, let’s briefly revisit the essential role of an executor. An executor is the individual or individuals appointed in a Will to manage the deceased’s estate. The role includes a variety of responsibilities, such as:

1. Gathering assets: Identifying and appraising all property, cash, and possessions of the deceased.

2. Paying debts and taxes: Clearing any outstanding debts, funeral expenses, and inheritance tax.

3. Distributing assets: Ensuring that the beneficiaries receive their inheritances, and that the remaining assets are distributed according to the Will.

4. Obtaining a Grant of Probate: This is a legal document that verifies the executor’s authority to manage the estate.

It’s a substantial task that requires time, effort, and often a solid grasp of legal and financial issues.

When the Sole Executor Says “No”

So, what happens if the only executor named in the Will declines to act? Common reasons include:

1. Feeling overwhelmed or just short on time;

2. Emotional distress is hindering their ability to perform the role.

3. Existing family disagreements; or

4. Lack of mental or physical capacity.

Importantly, nobody can compel an executor to accept the role. Although it is a serious duty, they have the right to “renounce” their executorship. Renunciation involves formally relinquishing the right to act as executor. Renouncing an executorship must be in writing and is generally irrevocable.

What are the Alternatives When There’s No Backup?

In situations where there is no backup, it becomes complicated. If the sole executor renounces and the Will does not name alternative executors, the estate effectively becomes “intestate” for administration. The fact that there is a valid Will does not affect this. In such cases, the law specifies who can apply to administer the estate. This process is known as applying for a “Grant of Letters of Administration (with Will Annexed).”

The order of priority for who can apply is generally as follows:

1. The residuary legatee or devisee (or any trustee of the residuary estate) is simply the person or people who inherit whatever is left of the estate after all the specific gifts have been given out.

2. This includes any other legatees or devisees, as well as creditors of the deceased, such as those who receive specific gifts under the Will or are owed money by the deceased.

3. Any other person who would have been entitled to a Grant of Letters of Administration if there had been no Will. This refers to the order of priority under intestacy rules, which generally prioritise spouses, civil partners, and then children.

Grant of Letters of Administration (with Will Annexed)

The individual or individuals wishing to administer the estate in this situation must apply to the Probate Registry for a Grant of Letters of Administration (with Will Annexe). The process involves:

• Filling out specific forms that require detailed information about the deceased, the estate, and the applicants.

• Swearing an oath, where the applicants confirm their relationship to the deceased and their intention to administer the estate properly.

• Submit the original Will alongside the application.

It’s important to emphasise that the court must be convinced of the applicant’s suitability and ability to fulfil the duties.

“Passing Over” an Executor

In more complex or contentious cases, or if the named executor is refusing to act but has not formally renounced, it may be necessary to apply to the High Court to “pass over” the executor. This is a more complicated legal process in which the court effectively removes the executor’s authority to act and appoints someone else. It is usually a last resort and requires clear justification, such as:

• Unreasonable delay by the executor;

• Concerns regarding the executor’s honesty, capacity, or suitability to properly manage the estate (such as misconduct or inability); or

• A conflict of interest occurs when the executor’s personal interests clash with their responsibilities to the beneficiaries.

• The court will always prioritise the proper administration of the estate and the best interests of the beneficiaries.

Our Advice

Dealing with the death of a family member is difficult enough without the added challenge of an uncooperative executor. Although the situation can be overwhelming, there are clear legal options to ensure the deceased’s estate is managed properly. Understanding these options and, crucially, seeking professional legal advice will help guide you through these difficult circumstances and allow the family to focus on grieving and remembering their loved one. If you need further information about what we have discussed here or about any Wills, trusts, or probate matters, please don’t hesitate to contact us. We’re here to help.

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