Wills and Probate - Banbury, Shipston and Stratford

Cotswold Family Law Wills Probate Banbury OxfordshireWhy make a Will?

It is a staggering statistic that more than 50% of the population die without making a will, yet making a will is a relatively simple procedure.  If you do not have a Will then arbitrary rules of Intestacy apply.  These rules determine what happens to almost everything you own.  If you want to decide what should happen to your property and money, then you need to make a Will.

If there is no Will then Rules of Intestacy will apply regardless of what you may want to happen to your property and possessions.

As so many families now are complicated by divorce and re-marriage, there is even more reason to make a Will.  If you do not make your wishes clear it can lead to family resentment and conflict, not to mention the very substantial amounts of inheritance tax which may be payable on your death.  All this could be avoided by simple tax planning through the preparation of a Will.

Testamentary Guardians

If you are a parent you may want to appoint someone to act as the guardian for infant children.  You will need to decide whether this should this be a grandparent, a sibling, or a friend who has children of their own. At Cotswold Family Law we can help you through these difficult decisions.

You will need to appoint a Guardian.  This is someone who will be responsible for your child’s welfare.  You will also need to appoint a Trustee, who will be responsible for administering any money held in trust for the child’s maintenance and education.

Trustees and guardians need not be the same.  Their responsibilities are different, so it is often advisable that at least one of the trustees is not also a guardian.  This ensures objectivity in the trustees’ exercise of their discretionary powers in connection with the administration of the trust fund for the child's benefit.

The Children Act 1989 changed the law relating to guardianship and introduced the concept of parental responsibility, which covers all the rights and responsibilities which a parent has over a child and the child's property.

A guardian appointed by a parent with parental responsibility acquires that parental responsibility, provided there is no surviving parent with parental responsibility.  The appointment of guardians is effective immediately upon the death of the parent.  The court, however, has an overriding jurisdiction if a dispute arises, and will then consider the arrangement that is in the best interests of the child.

What about married and unmarried parents?

Parents who were married to each other at the date of the birth of the child both have parental responsibility.  Only the mother automatically has parental responsibility if the parents are unmarried.  The father can acquire parental responsibility if he marries the mother, or enters into a parental responsibility agreement, or is granted parental responsibility by the court.

Wills of married parents usually provide for the appointment of guardians following the death of both parents.  Wills of unmarried parents should, if appropriate, provide for the appointment of the father as guardian on the mother's death, and for a substitute appointment on the death of both parents.

(Note: The Children Act only allows for the appointment of a guardian to act jointly with a surviving parent in very limited circumstances.)

For more information about preparing your Will, contact Cotswold Family Law.


What to do when someone dies

This can obviously be an extremely distressing and confusing time and it is a time when you need sensible, calm advice on what to do, whether you need to obtain a Grant of Probate, or what the consequences are if the person who died did not leave a Will.

What exactly is a Grant of probate?

A Grant of Probate is a document that is issued by the court when the person who died has left a Will.  It confirms that the person or people named in the will are those entitled to deal with the deceased’s affairs and have the court’s authority to do so.

When is a Grant of Probate required?

A Grant of Probate is often needed to confirm to those holding assets (such as banks, insurers, share registrars, etc) that they are dealing with the correct person and can hand over assets or cash to them.  It is almost always necessary when selling a property, to confirm to the buyer that the person they are dealing with has the authority to sell.

What happens if there is no Will?

In a situation where no will has been left, Letters of Administration are obtained instead of a Grant of Probate.  Who does that is determined by the Rules of Intestacy. It is more complicated when someone dies without leaving a will and in this situation you may well need legal advice.

Cotswold Family Law provides clear, understanding advice at what is always a difficult time and we can guide you through the process after someone dies.  For more information please contact us.

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