Will, Probate & Recovery

Wills, Probate and Administration

The position of executor or administrator (generally called “a personal representative”) of an estate can be time consuming and onerous and the work to be undertaken to wind an estate up, quite difficult at times. It is important that any work to be carried out is undertaken with a considerable amount of care and attention to avoid personal liability to the personal representative.

Our purpose is to explain how our charges for undertaking this work are calculated taking into account the degree of attention which must be given to ensure that a personal representative does not become personally liable for any claims against the estate.

How the bill is made up. The bill is likely to comprise three elements:-

i Our Costs – in other words the charge we make for the work that we do
ii Vat – the tax imposed on our costs and on some of the disbursements paid on behalf of the estate
iii Disbursements – the fees that we have to pay to others, such as to the probate registry for obtaining the grant of probate or administration, to an expert for valuing certain assets which form part of the estate or an accountant for completing business accounts.

How we charge for our work. The basis on which we charge for our work will vary depending upon the complexity and value of the estate.

i Estimated costs – where the estate is quite simple, and the work is likely to be straightforward, we will be able to estimate what our costs are likely to be. You will appreciate that an estimate can only ever be an approximation based on the work that we expect to do, and cannot be binding. If unexpected matters arise, or the work becomes more onerous than expected then this will affect the costs that we charge.

ii Complex matters – where the work is more complex it may be difficult to estimate, with any degree of accuracy what the likely costs might be. Our charges are assessed on the time we spend in dealing with the estate, its complexity, the urgency to a particular client and the value involved. The basis of these charges is in accordance with the Law Society guidelines.

On request our accounts department can provide you with a list giving details of the categories of staff that may have responsibility for undertaking the work involved, the rates at which time is charged, and the cost of routine letters and telephone calls. These rates do not include VAT.

Our rates are reviewed in April of each year and if the winding up of the estate is still proceeding at that time you may request a revised list from our accounts department.

When are the costs due?

Legal costs are not usually taken until the administration of the estate has been completed.

Before the assets of the estate are distributed to the beneficiaries an estate account is prepared. This presents a complete financial picture of the estate and its administration, including the cost of the work we have undertaken on behalf of the personal representatives.

The estate account will be given to the personal representatives for approval before the estate is fully and finally distributed.

If the personal representatives have any questions concerning our charges then these can be referred to the member of staff who dealt with the administration of the estate, or with the Probate Partner.

An Enduring Power of Attorney is your written authority for someone else to do things for you, and to handle your money and property, even if you become mentally incapable of doing these things yourself. An ordinary Power of Attorney is of no use to you in this sort of situation. It becomes invalid if you become mentally incapable.

How can it help me?

If you become incapable of managing matters for yourself then someone else can do it for you. They can manage your property, pay your bills, take decisions for you and so on.

If you don’t appoint someone to act on your behalf in this way then you may have to face all sorts of practical difficulties.

It may become necessary for someone to apply on your behalf to the Court of Protection so that a manager can be appointed to look after your affairs.

This can be quite an expensive and lengthy process, something which is likely to cause a considerable amount of aggravation to your family.

If you sign an Enduring Power of Attorney before you become unable to manage your affairs, then the need to make an application to the Court of Protection for the appointment of a manager can be avoided.

An Enduring Power of Attorney is only valid when you sign it when you are fully capable of understanding what you are doing.

If you leave it too late you will not be able to authorise someone to act on your behalf. They will have no choice but to refer the matter to the Court of Protection.

Who should I appoint?

You can appoint anyone. Most people prefer to appoint someone from their own family.

You can appoint two people if you like, and you can insist that they can only exercise the power if they act together.

What happens if I change my mind?

If you are still capable of understanding what you are doing, you can cancel the power of attorney and manage things by yourself.

If you are not able to understand what you are doing then the person you appointed must register the Enduring Power of Attorney with the Court of Protection if they wish to continue to use it.

Can an Enduring Power of Attorney be registered without you knowing?

No. The person you authorised to act as your attorney must notify you, and other close members of your family, if an application is made to the Court of Protection for registration of the power.

If you feel capable of managing your own affairs you can object to the application. Your closes family also have a right to object if they feel that you are unable to understand what is happening and they feel it would be inappropriate for the attorney to exercise the power.

The Court of Protection will consider any objections. After taking into account your original instructions, any medical evidence and any other observations that you, or any other interested party, make about the application they will decide if the power should be registered.

Can an Enduring Power be limited?

Yes. You can say that an Enduring Power should not be used at all until it is registered; you can limit what it can be used for; if your family are concerned about how it is being used they can ask the Court of Protection to investigate, and so on.

What should I do now?

If you want more information call at our office, write or telephone us and we will be pleased to help you. An appointment can be made with one of our experienced solicitors, who will give you more information, discuss your requirements and prepare the necessary documentation.

An Enduring Power of Attorney is not expensive. It could save you a lot of trouble and expense in the future.