Estate Planning, Wills and Probate
Estate planning involves comprehensive strategies for managing and distributing assets during life and after death, while inheritance refers to the transfer of assets from a deceased individual to their heirs. Probate is the legal process of validating a will, giving the legal authority to the executors and administering the estate according to the terms of the Will. Wills are legal documents that appoint executors and outline an individual’s wishes regarding the distribution of their assets and property upon their death. But what happens if you die without a Will in place?
What happens if you die without a will?
If you pass away without a will, this is known as dying intestate. The distribution of your assets will then be determined by statutory rules rather than your wishes. This can take longer as whoever administers the estate will need to determine the beneficiaries of the estate, of which there could be many. It can also lead to unintended outcomes and disputes among family members, highlighting the importance of estate planning and creating a will from the outset. However, what happens if a person is still alive, hasn’t created a Will but unfortunately does not have the capacity to execute a Will? All is not lost, as there could be potential for a ‘Statutory Will’ to be created.
What is a statutory will?
A Statutory Will, is a legal document created on behalf of an individual, who may lack the testamentary capacity, with the approval of the Court of Protection. This can be a useful pathway for representatives of individuals who are unable to create a traditional Will due to capacity issues under the Mental Capacity Act 2005. An application is made to the Court of Protection, usually by the Attorney representative or Court appointed Deputy. This application outlines details of the person, their estate and the reasons for making the application and why it is in the person’s best interests. Should the Court agree with the application and the drafted Will, it will issue an Order allowing the Statutory Will to be executed, which can then be used in the same way as a traditional Will in the event of the person’s death.
Who can use a statutory will?
Statutory Wills are typically created by representatives of individuals who are unable to execute a traditional Will due to capacity reasons. An application is made to Court presenting the information, this will be considered by the Court and in most cases, the Official Solicitor will be instructed to act as the person’s ‘Litigant Friend’, this allows the person with capacity issues to be fairly represented in the court process and ensures that the application is in being made in the person’s best interests and not of those interests of the representatives and/or potential beneficiaries.
Benefits of using a statutory will
One of the main benefits of creating and applying to the Court for a Statutory Will, is that it provides a legal avenue for individuals who are unable to create a traditional Will to ensure that executors are appointed and the deceased’s assets are distributed according to their wishes, or what their wishes would have potentially been had they capacity. Additionally, Statutory Wills can help avoid intestacy, where assets are distributed according to statutory rules rather than personal preferences.
Drawbacks of using a statutory will
While Statutory Wills offer a solution for representatives of individuals who cannot create a traditional will, they also have limitations and drawbacks. These include the necessity of approval by the Court of Protection, the application fees and legal costs involved and the possibility of challenges to the application process, creating delays to finalise the matter.
Is a statutory will right in this instance?
Determining whether a Statutory Will is right for the person you manage finances for depends on various factors, including; it is in their best interests, their individual circumstances, their capacity and what their previous preferences and wishes would have been and the value of the estate. The Statutory Will process is timely and costly so consulting with a legal professional experienced in Court of Protection and estate planning can help you evaluate your options and make an informed decision.
Alternatives to a statutory will
If a Will has not been created whilst the person had capacity, then the traditional will route would be unavailable at the stage the person has lost capacity. The only options therefore, are to create a Will with the statutory application process with the Court of Protection or the person dies intestate (without a will) and their estate will be distributed in accordance with intestacy rules.
How to make a statutory will
Creating a statutory will involves several steps, including understanding the requirements, filling out the appropriate forms, and seeking court approval. Its essential to follow the specific procedures outlined by the Court. It is therefore essential that you seek advice from a practitioner who is well versed in Court of Protection applications to ensure all information submitted is present and correct from the outset. Like traditional Wills, statutory wills typically require witnesses to attest to the validity of the document. The number and qualifications of witnesses may vary, so it’s essential to follow the specific guidelines outlined by the court.
Changing or revoking a statutory will
If circumstances change, it may be possible to amend or revoke a statutory will. This typically involves following similar procedures as creating the original statutory will, including seeking court approval for any changes or revisions. It is important however to ensure correct estate planning from the outset to prepare for any eventually as it would be costly and timely to go through the process again and the Court may not necessarily grant you authority to make a second application.
Decision Stage:
When considering the available options for creating a Will for a person lacking the capacity to do so themselves, its crucial to weigh the benefits and drawbacks of statutory wills and alternative methods carefully. Consulting with a legal advisor with estate planning and Court of Protection expertise can provide valuable guidance and support as you navigate the application process.
Should you need any further advice regarding Court of Protection matters and Statutory Wills please contact the Probate and Wills Department on 01384 811 811.
by Cheryl Styles, Legal Executive, Private Client
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