Wills

Owning assets outside the UK can make estate planning significantly more complicated.

A person living in England might own a holiday home in Spain, an apartment inherited from family overseas, money in a foreign bank account, shares in an overseas company or investments held through an international financial institution.

They may naturally assume that a UK will is enough to determine what happens to all of those assets after death.

Sometimes a UK will can cover overseas assets. However, that does not necessarily mean the administration of those assets will be straightforward or that English law alone will determine what happens.

Different countries have different succession laws, probate procedures, property rules and tax systems. Some jurisdictions also restrict how certain assets can be inherited.

As a result, people with international assets should approach their wills differently from those whose entire estate is located in England and Wales.

Careful planning can help reduce the risk of conflicting wills, unexpected tax consequences, delays and disputes between beneficiaries.

This article explains some of the key issues to consider when dealing with foreign assets in a UK will.

What Counts as a Foreign Asset?

A foreign asset is broadly an asset situated or held outside the UK.

This can include obvious examples such as a holiday home abroad, but international estates can contain many different types of property.

Examples may include:

• Houses, apartments and land overseas;
• Foreign bank accounts;
• Overseas investment accounts;
• Shares in foreign companies;
• Interests in overseas businesses;
• Foreign pensions;
• Valuable possessions kept abroad;
• Certain international insurance arrangements; and
• Other financial or property interests situated outside the UK.

Even a relatively modest foreign asset can create additional administrative requirements after death.

Can a UK Will Cover Assets Abroad?

Potentially, yes.

A will made in England and Wales can be drafted with the intention of covering assets outside the UK.

However, whether and how the will is recognised in another country depends on the law and procedures of that jurisdiction.

That distinction is important.

A will may state that it applies to a property abroad, but the authorities in the country where that property is located may still require local procedures before ownership can be transferred.

Local succession rules may also affect the result.

For this reason, somebody with significant foreign assets should not assume that simply mentioning them in an English will solves every issue.

Why Does the Location of an Asset Matter?

Different assets can be subject to different legal rules.

Real estate is particularly important because the law of the country where land or property is located can have a major role in determining how it is dealt with following death.

Other types of property may involve different conflict-of-laws principles.

Questions can also arise about the deceased person’s domicile, long-term residence or other connecting factors.

International succession can therefore involve more than one legal system at the same time.

That is why advice may be required both in England and Wales and in the country where the foreign asset is situated.

A Common Example: Owning a Holiday Home Abroad

Imagine a couple living permanently in England.

They own their main home in England but also purchased an apartment abroad several years ago.

Their English wills leave their estates to each other and then to their children.

They might reasonably assume that the English wills automatically allow their executors to transfer the foreign apartment in exactly the same way as their English property.

In practice, the executors may have to deal with local authorities, foreign legal procedures, translations, property-registration requirements and possibly a local probate or succession process.

Local tax may also need to be considered.

The existence of the English will is therefore only one part of the overall picture.

Do All Countries Follow English Succession Law?

No.

Succession laws differ considerably around the world.

England and Wales generally provide substantial freedom for a person to decide through a will who should inherit their estate, although claims against estates can arise in certain circumstances.

Other countries may have forced heirship rules.

These can reserve specified portions of an estate for particular relatives, such as children or spouses.

Consequently, a provision that appears straightforward under English law may potentially interact with mandatory rules in another jurisdiction.

Local advice is essential where the relevant country has forced-heirship or other compulsory succession rules.

What Is Forced Heirship?

Forced heirship refers broadly to laws that restrict a person’s freedom to leave their estate entirely as they wish.

Under such systems, certain relatives may have legally protected inheritance rights.

The details differ significantly between jurisdictions.

For example, one country may reserve part of an estate for children, while another may apply different rights to spouses or other family members.

Whether those rules affect a UK resident’s foreign assets can depend on several factors, including the type and location of the asset and the relevant country’s private international law.

It should therefore never be assumed that the English concept of testamentary freedom will automatically apply worldwide.

Should You Have One Will or Separate Wills?

There is no universal answer.

Some people use a single English will intended to cover their worldwide estate.

Others have an English will dealing with UK assets and a separate foreign will dealing with assets in another country.

Either approach can potentially be appropriate depending on the circumstances.

The important issue is coordination.

Multiple wills must be drafted carefully so that one does not accidentally revoke another.

The Danger of Accidentally Revoking Another Will

Wills commonly contain revocation clauses cancelling earlier testamentary documents.

That is usually helpful where somebody is replacing an old will with a new one.

It can become dangerous where somebody intentionally has separate wills in different countries.

Suppose a person makes an English will covering their UK estate.

Later, they visit a lawyer abroad and make a local will concerning a foreign property.

If the foreign document contains a broad clause revoking all previous wills, it could potentially create problems for the English arrangements.

The reverse can also happen.

An English will prepared later could unintentionally interfere with a foreign will.

Where multiple wills are used, the advisers in each jurisdiction should know that the other documents exist.

Why Coordinated Legal Advice Matters

International estate planning often requires advisers from different jurisdictions to work together.

An English solicitor can advise on the English will and relevant law in England and Wales.

A lawyer qualified in the foreign country can explain local succession, probate, property and tax requirements.

The objective is to make sure the different arrangements complement rather than contradict each other.

This can be particularly important where:

• Valuable overseas property is involved;
• The foreign country has forced-heirship rules;
• There are multiple nationalities or residences involved;
• The person owns businesses abroad;
• There are beneficiaries living in different countries; or
• Significant tax liabilities could arise.

Does Brexit Affect European Assets?

For people with property in EU countries, European succession rules may also need consideration.

The EU Succession Regulation, sometimes referred to as Brussels IV, applies in participating EU Member States.

The UK did not participate in the Regulation.

Nevertheless, the Regulation can still be relevant to a British person who owns assets in a participating EU country.

In appropriate circumstances, the Regulation allows a person to choose the law of their nationality to govern their succession.

Whether such an election is appropriate and how it affects a particular estate should be considered with advisers familiar with the relevant country.

This is an area where specialist cross-border advice can be particularly valuable.

Can Choosing English Law Avoid Forced Heirship?

Potentially in some European situations, but this should not be treated as a universal solution.

Where the EU Succession Regulation applies, a choice of the law of nationality can sometimes affect which succession law governs an estate.

For a British national, this may allow an election for the law associated with their nationality, subject to the relevant rules.

However, international succession is complex.

Tax rules, property registration and other mandatory laws can still apply separately.

The effectiveness and desirability of a choice-of-law clause should therefore be confirmed with advisers in the relevant jurisdiction.

What Information Should You Give Your Solicitor?

When making a will, tell your solicitor about all significant overseas assets.

Useful information may include:

• The country where the asset is located;
• The nature of the asset;
• How it is legally owned;
• Its approximate value;
• When and how it was acquired;
• Whether it is jointly owned;
• Whether there is an existing foreign will;
• Whether local legal advice has already been obtained; and
• Any foreign tax or succession planning already in place.

Do not assume an overseas asset is irrelevant simply because it represents a relatively small proportion of your overall wealth.

Its location may create separate legal requirements.

Foreign Property Ownership Matters

How a foreign property is owned can affect what happens on death.

Some countries have forms of joint ownership that operate differently from those used in England and Wales.

Property registration documents should therefore be reviewed rather than relying on assumptions about ownership.

If a property is jointly owned with a spouse, relative or business partner, local law may determine whether the deceased’s interest passes automatically, forms part of the estate or is dealt with in another way.

A local lawyer can explain the effect of the title.

What About Foreign Bank Accounts?

Foreign bank accounts should also be considered during estate planning.

After death, the bank may require documents before releasing funds.

These requirements can differ between countries and institutions.

Executors might need to provide:

• A death certificate;
• A grant of probate or equivalent document;
• Certified copies;
• Translations;
• Evidence of identity;
• Local tax documents; or
• Other legal documentation.

Even where the account balance is not particularly large, the administrative process can take time.

Keeping accurate records of foreign accounts can therefore help executors.

What About Overseas Investments?

International investments can raise similar issues.

The legal location of an investment may not always be obvious from the investor’s physical location.

Shares may be issued by a foreign company, investments may be held through overseas institutions, and financial products may be subject to foreign administration requirements.

Business interests can be even more complicated because shareholder agreements, company constitutions and local corporate law may affect what happens following death.

Professional advice should be obtained where significant overseas investments or businesses are involved.

Can Foreign Assets Be Subject to UK Inheritance Tax?

Potentially.

UK Inheritance Tax treatment depends on the applicable rules and the person’s circumstances.

From 6 April 2025, major changes were introduced to the UK’s Inheritance Tax treatment of overseas assets.

The previous domicile-based framework was replaced for relevant purposes by a residence-based system.

A person’s status as a long-term UK resident can therefore be particularly important in determining whether foreign assets fall within the scope of UK Inheritance Tax.

This is an area where older online articles may now be outdated.

What Is a Long-Term UK Resident for Inheritance Tax?

Under the post-April 2025 regime, whether non-UK assets fall within the UK Inheritance Tax framework can depend on the individual’s residence history.

Broadly, an individual may become a long-term UK resident for these purposes after being UK resident for at least 10 out of the previous 20 tax years.

The detailed rules should be considered carefully because the treatment can also continue for a period after somebody leaves the UK, depending on their residence history.

People with substantial overseas assets should therefore obtain current tax advice rather than relying on the former domicile-based rules.

What If You Have Recently Moved to the UK?

People moving to the UK with existing foreign wealth should review their estate planning.

They may have:

• A will from their previous country;
• Property abroad;
• Foreign bank accounts;
• Family members overseas;
• Trust arrangements; or
• Existing succession planning based on another country’s law.

UK residence can have important tax consequences over time.

Existing wills may also need to be coordinated with new arrangements in England and Wales.

An international estate-planning review can help identify potential conflicts before they become problems.

What If You Leave the UK?

Moving abroad does not automatically make previous estate planning irrelevant.

A person may retain UK assets while becoming resident elsewhere.

The new country may also apply its own succession and tax rules.

Under the current UK Inheritance Tax system, exposure concerning overseas assets can potentially continue for a period after departure where the individual has previously been a long-term UK resident.

The duration depends on the relevant statutory rules and residence history.

Anyone planning a permanent international move should therefore review their will and tax position before or around the time of relocation.

Can the Same Asset Be Taxed in Two Countries?

Potentially, yes.

Cross-border estates can create situations in which more than one jurisdiction asserts taxing rights.

The UK has arrangements with some countries designed to address double taxation on estates or inheritances.

In other cases, unilateral relief may potentially be available under UK rules.

The exact outcome depends on the countries involved, the type of asset and the applicable taxes.

Tax treaties should never simply be assumed to exist.

Professional advice should be obtained for the specific jurisdictions involved.

What Is Double Taxation Relief?

Double taxation relief is designed to reduce the risk of the same property being subjected to overlapping death-related taxation in more than one jurisdiction without appropriate credit.

The UK has estate-tax treaties with certain countries.

Where no treaty applies, UK law can provide unilateral relief in some circumstances.

However, foreign taxes do not always correspond neatly with UK Inheritance Tax.

One country may impose estate tax, another inheritance tax, and another may impose taxes connected with transferring or registering property.

International tax advice can therefore be important even where the estate itself appears relatively straightforward.

Should Executors Know About Foreign Assets?

Yes.

Executors need enough information to identify and administer the estate.

If overseas assets exist but nobody knows about them, administration can become much more difficult.

The will itself does not necessarily need to contain account numbers, passwords or every detailed financial record.

Instead, the person can maintain a secure and up-to-date record showing where important assets and documents can be found.

Executors should know how to locate that information when needed.

Should You Put Account Details in Your Will?

Generally, a will is not the ideal place for sensitive information such as passwords and detailed banking credentials.

After probate is granted, a will generally becomes a public document.

Account details can also change frequently, meaning that including them directly in a will can quickly make the document outdated.

A separate secure asset record is often more practical.

It can be updated without having to execute a new will each time an account changes.

Foreign Language Documents

Foreign estates may involve documents written in another language.

Executors may need translations of:

• Wills;
• Property documents;
• Death certificates;
• Probate documents;
• Company records; or
• Other legal documents.

The relevant authority may require a certified or officially recognised translation.

This can increase both the time and cost involved in administering the estate.

Keeping original foreign documents organised can make the process easier.

Foreign Executors and Beneficiaries

International families often have executors or beneficiaries living in different countries.

This is possible, but it can create practical complications.

Identity verification, signatures, banking arrangements, tax reporting and communication may become more complicated across borders.

Some foreign jurisdictions may also have specific rules concerning who can administer local assets.

The practical suitability of proposed executors should therefore be considered alongside personal trust.

What If Your Beneficiary Lives Abroad?

Leaving assets to somebody living abroad can potentially create tax, reporting or practical consequences for the beneficiary in their country of residence.

The UK tax position is only part of the picture.

The beneficiary’s country may impose inheritance, gift, income or other taxes.

This does not mean overseas beneficiaries should be excluded.

It simply means that significant international gifts may benefit from coordinated advice.

What About Foreign Pensions?

Foreign pensions can operate differently from ordinary estate assets.

The scheme rules may determine what happens after death.

Beneficiary nominations or local pension legislation may also be relevant.

A will should therefore not be assumed to override the rules of every overseas pension arrangement.

The pension provider’s terms and the law governing the scheme should be reviewed separately.

International Business Interests

Owning a foreign company or an interest in an overseas business adds another layer of complexity.

Questions may arise concerning:

• Transfer of shares;
• Local corporate law;
• Shareholder agreements;
• Business succession;
• Valuation;
• Taxation; and
• Who can exercise control following death.

The English will, foreign company documents and any local succession planning need to work together.

Business owners with international interests should generally seek specialist advice rather than treating foreign shares like an ordinary bank account.

What If You Already Have a Foreign Will?

Tell your English solicitor before making another will.

The solicitor needs to understand what the foreign document covers and whether the new English will could affect it.

Where appropriate, a copy can be reviewed with foreign counsel.

The objective is to determine:

1. Which assets each will covers;
2. Whether the documents conflict;
3. Whether either document contains problematic revocation wording; and
4. Whether the combined arrangement remains effective.

Do not destroy or replace a foreign will without first understanding its legal effect.

What If You Buy Foreign Property After Making Your Will?

Review your estate planning.

A will may have been drafted broadly enough to cover subsequently acquired property, but the new foreign asset may create local legal or tax issues that were never considered when the will was prepared.

Buying a substantial asset abroad is therefore a sensible trigger for a will review.

The same applies when selling the last foreign asset covered by a separate overseas will.

Estate planning should reflect the assets that actually exist.

What If You Sell the Foreign Asset?

If a will makes a specific gift of a particular property and that property is sold before death, the gift may no longer operate in the way originally intended.

The sale proceeds do not necessarily substitute automatically for the property in every situation.

This is one reason wills should be reviewed following major asset changes.

A solicitor can advise whether the existing provisions still achieve the intended result.

Should You Make a Will in Every Country Where You Own Assets?

Not necessarily.

Multiple wills can sometimes simplify local administration, but they can also increase the risk of inconsistency.

The correct strategy depends on the countries and assets involved.

For someone with one modest overseas bank account, a separate foreign will might be unnecessary.

For somebody with valuable real estate and a business in another jurisdiction, separate coordinated wills may be worth considering.

The decision should follow legal advice rather than a general rule.

Why DIY International Wills Can Be Risky

International estate planning is one of the areas where a generic online will template can be particularly risky.

A template may not identify:

• Forced-heirship rules;
• Foreign tax exposure;
• Conflicts between wills;
• Property ownership issues;
• International succession regulations;
• Business-transfer restrictions; or
• The effect of residence and nationality.

GOV.UK specifically identifies owning property overseas as a circumstance in which professional advice should be considered when making a will.

The complexity lies not only in drafting the English document but in understanding how it interacts with foreign law.

Keeping Your International Estate Plan Updated

Cross-border circumstances can change frequently.

A review may be appropriate following:

• Buying or selling foreign property;
• Moving to another country;
• Returning to the UK;
• Acquiring another nationality;
• Marriage or divorce;
• Changes in foreign succession law;
• Changes in UK tax law;
• Opening or closing significant overseas accounts;
• Acquiring a foreign business; or
• Changes in intended beneficiaries.

Regular reviews can help prevent an estate plan from becoming disconnected from the person’s actual circumstances.

Questions to Ask When You Own Foreign Assets

When reviewing a will, consider:

• Which countries contain my assets?
• What type of assets do I own there?
• How are foreign properties legally held?
• Do I already have wills in other countries?
• Could one will revoke another?
• Do forced-heirship rules apply?
• Is the EU Succession Regulation relevant?
• Could my overseas assets fall within UK Inheritance Tax?
• Could foreign death or inheritance taxes also apply?
• Is double-taxation relief available?
• Do my executors know where my foreign documents are?
• Are my English and foreign advisers coordinating their advice?

Answering these questions can reveal where specialist advice is needed.

Conclusion

Foreign assets can transform an otherwise straightforward will into a cross-border estate-planning exercise.

An English will can potentially cover assets outside the UK, but that does not mean English law or English probate procedures will automatically determine what happens to every foreign asset.

The country where an asset is located may have its own succession rules, probate requirements, property laws and taxes.

Some countries also operate forced-heirship regimes that can restrict testamentary freedom.

Where multiple wills are used, careful coordination is essential. A new will prepared in one country should not inadvertently revoke a valid will dealing with assets elsewhere.

Tax planning also deserves particular attention.

Since 6 April 2025, the UK’s Inheritance Tax treatment of overseas assets has moved from the previous domicile-based framework towards a residence-based system. Long-term UK residence can therefore have significant implications for international estates.

The most effective approach is usually to look at the estate globally rather than treating each asset in isolation.

That means identifying where assets are located, understanding how they are legally owned, considering which country’s succession rules may apply and ensuring that advisers in relevant jurisdictions coordinate their work.

For people with overseas property, investments, businesses or substantial financial accounts, specialist advice can help create a will structure that works not only on paper in England and Wales but also in the countries where the assets actually need to be administered.

If you are arrested or invited to attend a police interview in the UK, you may have heard of the phrase “no comment.” While many people assume that answering “no comment” to every question is an admission of guilt, this is not the case. In certain circumstances, giving a “no comment” interview can be a legitimate legal strategy designed to protect your rights.

However, deciding whether to answer questions or remain silent should never be taken lightly. The right approach depends on the facts of your case, the evidence available to the police, and the advice of your solicitor.

What Is a ‘No Comment’ Interview?

A “no comment” interview is a police interview where a suspect exercises their right to remain silent by responding “no comment” to some or all of the questions asked.

This right is protected under UK law and forms part of the broader right to a fair trial. Before questioning begins, the police must caution the suspect, informing them that they do not have to say anything. However, they are also warned that failing to mention something they later rely on in court may harm their defence.

Although remaining silent is a legal right, it is not always the best option. Every case should be assessed individually with legal advice.

Why Would Someone Give a ‘No Comment’ Interview?

There are several situations where a solicitor may advise a client to answer “no comment.”

Limited Disclosure of Evidence

Sometimes the police do not fully disclose the evidence they hold before the interview. Without knowing the full case against you, answering questions may unintentionally provide information that strengthens the prosecution’s case.

Waiting for Further Information

If investigations are still ongoing or important evidence has not yet been disclosed, remaining silent may prevent misunderstandings or inaccurate statements from being used against you later.

Protecting Against Mistakes

Police interviews can be stressful. People may become confused, forget important details, or unintentionally contradict themselves. Even honest mistakes can raise unnecessary suspicion.

A “no comment” interview may reduce the risk of making statements that could later be interpreted incorrectly.

Does ‘No Comment’ Mean You’re Guilty?

No. Choosing to remain silent does not automatically indicate guilt.

Many innocent individuals exercise their right to remain silent after receiving legal advice. The decision is often based on protecting their legal position rather than avoiding responsibility.

Courts understand that suspects have legal rights, and simply giving a “no comment” interview does not result in an automatic conviction.

Can the Court Draw Adverse Inferences?

In some situations, yes.

Under UK law, a court may draw an adverse inference if a suspect later relies on facts in their defence that they could reasonably have mentioned during their police interview.

For example, if someone later claims they were elsewhere at the time of the alleged offence but failed to mention this during questioning without good reason, the court may question why the information was withheld.

However, adverse inferences are not automatic. The court considers the circumstances of each case, including the legal advice received and whether remaining silent was reasonable.

Should You Always Answer ‘No Comment’?

No.

A blanket “no comment” approach is not suitable for every case. Sometimes providing a clear explanation during the interview can help resolve misunderstandings and avoid criminal charges altogether.

In other situations, answering questions may expose weaknesses in the prosecution’s evidence or demonstrate that no offence has been committed.

The correct strategy depends on factors such as:

• The evidence available to the police.
• The seriousness of the allegation.
• Whether further investigations are ongoing.
• Your personal circumstances.
• The advice provided by your solicitor.

The Importance of Legal Representation

Everyone interviewed by the police has the right to free legal advice, whether they are under arrest or attending voluntarily.

Before any questioning begins, your solicitor can:

• Review the available evidence.
• Speak with the investigating officers.
• Explain the allegations.
• Advise whether to answer questions or remain silent.
• Protect your legal rights throughout the interview.

Having professional legal representation ensures that any decisions made during the interview are informed and in your best interests.

Conclusion

A “no comment” interview is a lawful and, in some cases, sensible way to protect your legal position during a police investigation. It should never be viewed as an admission of guilt, nor should it be used automatically in every case.

Because the decision can have significant consequences for any future criminal proceedings, it is essential to obtain legal advice before answering police questions. An experienced criminal defence solicitor can assess the circumstances of your case and recommend the most appropriate course of action, helping to safeguard your rights from the very beginning of the investigation.

Losing a family member or someone close to you can be an extremely difficult experience.

Alongside grief, families may suddenly find themselves responsible for practical and legal matters that cannot always be postponed.

There may be a will to locate, property to protect, financial institutions to contact, an estate to value and questions about probate, Inheritance Tax and beneficiaries.

For someone who has never dealt with an estate before, the terminology and responsibilities can feel unfamiliar.

Executors may also worry about making mistakes while trying to support their family emotionally.

At Afford Henderson, we understand that dealing with an estate is not simply an administrative exercise. Behind every probate matter is a person who has died and family members who may be going through a difficult period.

Clear legal guidance can help families understand what needs to happen, what can wait and what responsibilities they may have.

This article explains some of the ways professional probate support can help families navigate the legal and practical issues that arise following a bereavement.

The First Days After a Bereavement

Immediately after somebody dies, probate is unlikely to be the family’s first concern.

There are more immediate arrangements to consider, and families should not feel that every aspect of estate administration needs to be completed straight away.

However, certain practical steps will eventually need attention.

These can include:

• Registering the death;
• Arranging the funeral;
• Locating the deceased person’s will;
• Identifying executors;
• Securing property and valuable possessions;
• Notifying relevant organisations; and
• Beginning to understand the deceased person’s financial affairs.

The exact process depends on the circumstances.

Where families are unsure about the legal side of the estate, obtaining advice early can help provide a clearer picture of what will be required.

Finding the Will

One of the first legal questions is whether the deceased left a valid will.

The will can provide important information, including:

• Who has been appointed as executor;
• Who should inherit;
• Whether particular gifts have been made;
• Whether trusts are involved; and
• Other instructions relevant to the estate.

Families may already know where the original will is stored.

In other cases, it may be held by a solicitor, professional will-storage service or another secure storage provider.

Finding the original document is important because an original will is generally required when applying for probate.

If no valid will exists, the estate will instead need to be administered according to the intestacy rules.

What Does an Executor Do?

An executor is somebody appointed by a will to administer the deceased person’s estate.

The role can involve significant responsibility.

Depending on the estate, an executor may need to:

• Identify assets and liabilities;
• Establish the value of the estate;
• Deal with Inheritance Tax requirements;
• Apply for probate where necessary;
• Collect estate assets;
• Deal with property;
• Pay valid debts and expenses;
• Address relevant tax matters;
• Keep appropriate estate records; and
• Distribute the remaining estate to beneficiaries.

Some estates are relatively straightforward.

Others can take considerable time and involve property, investments, businesses, trusts, foreign assets or disagreements between family members.

What Is Probate?

The word probate is often used generally to describe the process of administering an estate.

More precisely, where someone has left a valid will and an executor needs formal authority, the executor may apply for a grant of probate.

The grant provides evidence of the executor’s authority to deal with the deceased person’s estate.

Banks, investment providers and other organisations may request it before releasing substantial assets.

However, not every estate requires a grant.

Whether probate is necessary depends on the assets involved and the requirements of the organisations holding them.

What Happens If There Is No Will?

If someone dies without leaving a valid will, they are said to have died intestate.

The estate is then distributed according to the intestacy rules.

Instead of an executor named in a will, an eligible person may apply for letters of administration.

The person ultimately appointed to administer the estate is known as an administrator.

Executors and administrators are both forms of personal representative, although the source of their authority differs.

Where there is no will, legal advice can help families understand who is entitled to apply and who may inherit.

Understanding What the Estate Includes

Before an estate can be administered properly, the deceased person’s assets and liabilities need to be identified.

Assets might include:

• Property;
• Bank and building society accounts;
• Savings;
• Investments;
• Shares;
• Business interests;
• Vehicles;
• Valuable possessions;
• Money owed to the deceased; and
• Certain overseas assets.

Liabilities might include:

• Mortgages;
• Loans;
• Credit cards;
• Household bills;
• Tax liabilities; and
• Other outstanding debts.

Executors should avoid distributing assets until they understand the estate’s liabilities and administration requirements.

Valuing the Estate

The estate generally needs to be valued before probate can be obtained.

This involves establishing appropriate values for assets and identifying debts.

For some assets, obtaining a value may be straightforward.

Others may require professional valuation.

Property, private-company shares, valuable collections or unusual assets can require specialist input.

Accurate valuation can also be important for Inheritance Tax and other tax considerations.

A solicitor can help executors understand what information is required and when specialist valuations may be appropriate.

Dealing With Inheritance Tax

Inheritance Tax can be one of the more complicated aspects of estate administration.

Not every estate pays Inheritance Tax.

Whether tax is due depends on the value and composition of the estate, available exemptions and reliefs, lifetime gifts and other circumstances.

Relevant rules may include:

• The nil-rate band;
• The residence nil-rate band;
• Spouse or civil-partner exemption;
• Charity exemption;
• Business Relief; and
• Agricultural Relief.

Some estates can involve significantly more complicated tax issues.

Professional legal and tax advice can help personal representatives understand what needs to be reported and whether tax may be payable.

Probate and Inheritance Tax Are Not the Same Thing

Families sometimes use the terms interchangeably, but probate and Inheritance Tax are different.

Probate concerns the legal authority to administer an estate.

Inheritance Tax is a tax regime that may apply depending on the estate.

An estate can require probate even where no Inheritance Tax is payable.

Likewise, tax considerations may need to be addressed before the grant can be issued.

Understanding this distinction can make the administration process easier to follow.

Applying for the Grant

Once the necessary estate information and tax requirements have been addressed, an application can be made for the appropriate grant where one is required.

If there is a valid will and an executor is applying, this will generally be a grant of probate.

Where there is no will, letters of administration may be required.

The application needs accurate information.

Problems can arise if the wrong figures are supplied, the original will is unavailable or questions exist about the validity of the will.

Professional assistance can help executors prepare for the application and address issues that arise.

What Happens After Probate Is Granted?

Obtaining the grant is an important milestone, but it does not necessarily mean the estate administration is finished.

The personal representatives may then need to:

• Close or transfer financial accounts;
• Collect funds;
• Sell or transfer property;
• Deal with investments;
• Pay outstanding liabilities;
• Resolve tax matters;
• Deal with claims;
• Prepare estate accounts; and
• Distribute the estate.

The complexity of these tasks depends on the assets and circumstances.

Some estates can be administered relatively quickly, while others may take much longer.

Supporting Executors Who Feel Overwhelmed

An executor may be dealing with probate for the first time.

They may also have been very close to the person who died.

That combination can make the responsibility particularly difficult.

Legal support can help break the administration into manageable stages.

Instead of trying to understand the entire process immediately, executors can receive guidance about what needs attention first and what follows later.

This can reduce uncertainty and help them make informed decisions throughout the administration.

Do Executors Have to Use a Solicitor?

No.

There is no general requirement for an executor to instruct a solicitor for every estate.

Individuals can apply for probate themselves where appropriate.

For a straightforward estate, an executor may feel comfortable dealing with much of the administration personally.

However, professional assistance can be particularly useful where:

• The estate is large or complicated;
• There are substantial tax issues;
• Property needs to be sold;
• Business interests are involved;
• There are overseas assets;
• Trusts are involved;
• The will is unclear;
• Beneficiaries disagree;
• There is a potential claim against the estate; or
• The executor simply does not feel able to manage the process alone.

Seeking help is not a reflection on an executor’s ability.

Estate administration can involve legal responsibilities that many people encounter only once or twice in their lives.

Different Levels of Probate Support

Families do not necessarily need the same level of legal assistance.

Some executors may want advice on one particular issue.

Others may want assistance with obtaining the grant while handling the remaining administration themselves.

In more complicated cases, personal representatives may want broader professional involvement throughout the administration.

The appropriate approach depends on the estate and the executor’s circumstances.

At the beginning of the matter, it can therefore be useful to establish what assistance is actually required rather than assuming that every estate should be handled in exactly the same way.

Dealing With the Family Home

Property is often the most valuable asset in an estate.

It can also carry enormous emotional significance.

The deceased’s home may contain personal possessions, photographs and memories accumulated over many years.

At the same time, practical issues need to be addressed.

The property may need to be:

• Secured;
• Insured appropriately;
• Valued;
• Maintained;
• Cleared;
• Sold; or
• Transferred to a beneficiary.

Executors should check the insurance position after death because the circumstances affecting occupation of the property may have changed.

Legal advice can also assist with the estate-administration aspects of a sale or transfer.

What About Personal Possessions?

Wills sometimes make specific gifts of jewellery, artwork or other personal possessions.

Other belongings may form part of the residue of the estate.

Families can understandably become emotionally attached to particular items.

Disagreements over possessions can sometimes become disproportionate to their financial value because of their sentimental importance.

Executors should follow the terms of the will and keep appropriate records.

Where disagreements arise, dealing with them calmly and obtaining advice early can help prevent matters from escalating unnecessarily.

Communicating With Beneficiaries

Beneficiaries often want to know how the estate is progressing and when they will receive their inheritance.

Executors, meanwhile, may be waiting for information from banks, HMRC, property professionals or other organisations.

This can create tension if expectations are not managed.

Clear communication can help.

Beneficiaries should understand that executors have responsibilities to identify liabilities and complete appropriate administration before distributing the estate.

Making distributions too early can potentially expose an executor to difficulties if unexpected debts or claims later arise.

How Long Does Probate Take?

There is no single timetable that applies to every estate.

The time required depends on factors such as:

• The complexity of the estate;
• Whether Inheritance Tax is involved;
• How quickly asset information can be obtained;
• Whether property must be sold;
• Whether overseas assets exist;
• Whether trusts or businesses are involved;
• Whether beneficiaries can be located; and
• Whether disputes arise.

The grant itself is only one stage of the process.

Families should therefore be cautious about assuming that the entire estate will be completed immediately after probate is issued.

What If the Estate Includes a Business?

Business interests can make probate considerably more complicated.

Executors may need to consider:

• Company shares;
• Partnership interests;
• Business valuations;
• Shareholders’ agreements;
• Company articles;
• Business Relief;
• Management continuity; and
• Potential sales or transfers.

Urgent commercial decisions may also be required while the wider estate administration continues.

Business estates therefore often benefit from coordinated legal, accounting and tax advice.

What If There Are Assets Abroad?

Foreign assets can create additional procedures.

An English grant of probate may not automatically provide everything required to transfer an overseas asset.

Local legal advice may be necessary.

Foreign property can involve:

• Local succession law;
• Foreign probate procedures;
• Tax;
• Translations;
• Property registration; and
• Separate legal documentation.

Where the deceased had assets in more than one country, coordination between advisers can help reduce the risk of conflicting approaches.

What If the Will Is Unclear?

Occasionally, questions arise about what a provision in a will means.

Executors should avoid simply choosing the interpretation they personally prefer.

The wording may need to be considered in its legal context.

Professional advice can help establish whether the issue can be resolved through interpretation or whether further steps are required.

This can be particularly important where different interpretations would significantly affect beneficiaries.

What If Someone Challenges the Will?

Disputes can arise over wills and estates.

Someone might question:

• Whether the will was properly executed;
• Whether the deceased had testamentary capacity;
• Whether undue influence occurred;
• Whether a later will exists; or
• Whether they may have a claim against the estate.

These issues can become legally complicated very quickly.

Executors who become aware of a genuine dispute should consider obtaining advice before distributing the estate.

Once assets have been distributed, correcting matters can become significantly more difficult.

Claims Against an Estate

In certain circumstances, a person may seek financial provision from an estate under the Inheritance (Provision for Family and Dependants) Act 1975.

Whether somebody can bring such a claim and whether it will succeed depends on the facts and statutory requirements.

There are also important time limits.

Executors should therefore take potential claims seriously.

If concerns have been raised about a claim, obtaining advice before making final distributions can help protect the administration of the estate.

What If Executors Disagree?

More than one executor may be appointed.

Usually, executors can work together successfully.

Sometimes, however, disagreements arise about property, distributions, valuations or the general administration.

Personal disagreements can make progress difficult.

Professional legal advice can help clarify the executors’ duties and distinguish personal preferences from what the administration legally requires.

Where disagreements become serious, more formal remedies may need to be considered.

What If an Executor Does Not Want to Act?

Being named as an executor does not necessarily mean somebody must take on the role regardless of circumstances.

Different options may be available depending on whether the person has already become involved in administering the estate.

For example, an executor who has not intermeddled in the estate may potentially renounce their appointment using the appropriate procedure.

In other circumstances, an executor may have options concerning reserving power.

Advice should be obtained before taking steps that could affect the executor’s position.

Protecting Executors From Mistakes

Executors have responsibilities to the estate and its beneficiaries.

Potential problems can arise from:

• Distributing assets too early;
• Missing debts;
• Paying the wrong beneficiary;
• Incorrect tax reporting;
• Failing to identify claims;
• Misinterpreting the will; or
• Failing to keep adequate records.

Professional advice cannot remove every risk, but it can help executors understand their duties and approach the administration systematically.

This is particularly valuable where the estate contains unusual or complicated assets.

Estate Accounts

Good record-keeping is an important part of estate administration.

Personal representatives should be able to account for:

• Assets received;
• Liabilities paid;
• Administration expenses;
• Income received during administration;
• Tax;
• Interim distributions; and
• Final distributions.

Estate accounts provide beneficiaries with a clear picture of how the estate has been administered.

For complicated estates, professional assistance with accounts and records can help maintain transparency.

The Emotional Side of Estate Administration

Probate documents contain financial figures and legal terminology, but the process takes place during bereavement.

A family home is not merely a property valuation.

Personal possessions may carry memories.

A beneficiary disagreement may involve relationships extending back decades.

Solicitors cannot remove grief, but the way legal advice is delivered matters.

Clear explanations, realistic expectations and respectful communication can make an already difficult process easier to navigate.

Families should feel able to ask questions without being expected to understand unfamiliar probate terminology immediately.

Why Clear Advice Matters

Terms such as “personal representative”, “residuary estate”, “intestacy”, “grant of probate” and “letters of administration” are everyday language for probate professionals but not necessarily for clients.

Good legal advice should translate those concepts into practical information.

For example:

What do I need to do now?

What documents do I need?

Does the estate require probate?

Is tax likely to be involved?

Can the house be sold?

When can beneficiaries be paid?

These are often the questions that matter most to families.

Planning Ahead Can Help Your Own Family

Bereavement also highlights the value of planning ahead.

Some difficulties encountered during probate can be reduced when the deceased had:

• Made an up-to-date will;
• Chosen appropriate executors;
• Kept financial records organised;
• Recorded where important documents were stored;
• Reviewed estate planning after major life changes; and
• Considered Lasting Powers of Attorney during their lifetime.

No amount of planning removes the emotional difficulty of losing somebody.

But clear arrangements can reduce some of the uncertainty left for family members.

When Should You Contact a Probate Solicitor?

There is no need to wait until a problem develops.

Seeking advice early can be helpful where executors are uncertain about their responsibilities or know from the outset that the estate is complicated.

Professional advice may be particularly appropriate where:

• Inheritance Tax may be payable;
• The deceased owned a business;
• There are foreign assets;
• Trusts are involved;
• There is no will;
• The original will cannot be found;
• Family members disagree;
• A claim has been threatened;
• The estate is insolvent or may have substantial debts; or
• Executors are uncertain about whether they can safely distribute assets.

Early advice can sometimes prevent a manageable issue from becoming a larger dispute.

Supporting Families Through Each Stage

Probate is a process rather than a single event.

Families may need support at different points.

The early stage can involve understanding the will and identifying the estate.

The next stage may involve valuations, tax and the probate application.

Later stages can involve collecting assets, dealing with property and liabilities and preparing for distribution.

Different questions arise at each stage.

Having legal guidance available can provide continuity as the administration progresses.

Conclusion

Bereavement can bring legal and practical responsibilities at a time when families may already be coping with significant emotional pressure.

Probate and estate administration can involve locating the will, identifying executors, valuing assets, understanding tax requirements, obtaining the appropriate grant, dealing with property and liabilities and ultimately distributing the estate to the correct beneficiaries.

For straightforward estates, some families choose to handle much of this process themselves.

For others, professional support can provide reassurance and help navigate responsibilities that may be unfamiliar or complicated.

This can become particularly important where an estate contains property, business interests, trusts or foreign assets, where Inheritance Tax issues arise, or where beneficiaries disagree.

At Afford Henderson, our approach is centred on helping families understand the legal process and the steps relevant to their circumstances.

Bereavement cannot be reduced to paperwork.

Behind every estate are family relationships, memories and individual circumstances that deserve to be treated with care.

Clear legal guidance can help personal representatives understand what they need to do, avoid unnecessary uncertainty and move through the administration in an organised way.

Whether a family needs advice about a particular probate issue or broader assistance with an estate, obtaining appropriate support can help ensure that the deceased person’s affairs are handled carefully and in accordance with the law.

Planning what should happen to your estate after your death is one of those tasks that can be easy to postpone. Similarly, when somebody close to you dies, dealing with probate and estate administration can feel particularly difficult at an already emotional time.

Although there are online services and do-it-yourself options available, wills and probate can involve important legal, financial and family considerations. Errors or misunderstandings can create complications that may only become apparent much later.

For many people, working with a local solicitor provides something that an online form cannot easily replicate: personal advice based on an understanding of their individual circumstances.

A local solicitor can meet with you, discuss your family and assets, identify issues that may not initially seem obvious and explain your options in understandable terms. When dealing with probate, having an accessible professional who can guide executors and families through the process can also provide valuable reassurance.

This article considers some of the reasons people choose a local solicitor for wills and probate and explains when professional legal advice may be particularly useful.

Why Is Making a Will Important?

A will allows you to set out what you want to happen to your money, property and possessions after your death.

It can also address matters that go beyond simply dividing assets.

For example, a will can identify:

• Who you want to inherit your estate;
• Who should act as your executors;
• Who you would like to look after children under 18;
• What should happen if an intended beneficiary dies before you; and
• Whether you want to leave gifts to particular individuals or charities.

If somebody dies without a valid will, they are said to have died intestate. In that situation, the intestacy rules determine who is entitled to inherit rather than the deceased person’s undocumented wishes.

This can produce results that may not reflect what the person would have wanted.

Making a properly prepared will therefore provides an opportunity to put your intentions into a legally recognised form.

Why Use a Solicitor to Make a Will?

It is possible to write your own will in England and Wales.

However, a will must satisfy legal requirements to be valid, and apparently simple family arrangements can sometimes involve issues that are easy to overlook.

A solicitor does more than simply type someone’s wishes into a document.

The process can involve understanding the client’s family circumstances, identifying their assets, discussing potential complications and ensuring that the will accurately reflects what the client intends.

Professional advice can be particularly valuable where the estate or family arrangements are not straightforward.

Official government guidance recommends considering professional advice in circumstances including where someone has property overseas, owns a business, shares property with somebody who is not their spouse or civil partner, wants to provide for a dependant who cannot care for themselves, or has family circumstances that could potentially result in claims against the estate.

What Are the Requirements for a Valid Will?

In England and Wales, certain formal requirements must be satisfied for a will to be legally valid.

Generally, the person making the will must be at least 18, make it voluntarily and have the necessary mental capacity.

The will must be in writing.

It must also be signed using the required witnessing procedure. The person making the will signs in the presence of two adult witnesses, and the witnesses must also sign in the person’s presence.

There are additional rules concerning witnesses. For example, leaving a gift to a witness, or to the witness’s spouse or civil partner, can cause problems with that gift.

A solicitor can help ensure that the document is prepared and executed correctly rather than leaving uncertainty that may emerge after death.

Personal Advice Rather Than a Standard Template

One of the biggest advantages of using a solicitor is that the advice can be tailored to the individual.

Families are rarely identical.

One person may own a single home and have adult children. Another may have children from different relationships. Someone else may own a business, have assets abroad, support a vulnerable family member or live with an unmarried partner.

A standard template cannot necessarily identify the legal significance of all those circumstances.

A solicitor can ask questions designed to understand the complete picture before preparing the will.

This can help ensure that the document reflects what the client actually wants rather than simply fitting their circumstances into a generic form.

Why Choose Someone Local?

There is no legal requirement to use the solicitor geographically closest to you.

However, choosing a local solicitor can offer practical and personal advantages.

Wills and probate frequently involve sensitive discussions about family relationships, finances, property, illness and bereavement.

Some clients prefer discussing these matters face-to-face with somebody they can contact easily and build a professional relationship with.

A local firm can offer that accessibility while still providing the legal expertise required.

Face-to-Face Meetings Can Be Valuable

Technology has made remote legal services much easier, and telephone or video appointments can be convenient.

Nevertheless, some people still value the opportunity to sit down with their solicitor.

A face-to-face conversation can make it easier to discuss complicated family arrangements and ask questions as they arise.

This can be particularly helpful for clients who are uncomfortable with technology or simply prefer dealing with important legal matters in person.

It may also be valuable when a solicitor needs to understand potentially sensitive circumstances surrounding the preparation of a will.

The important point is having access to a service that suits the client’s needs rather than being restricted to a purely online process.

Building an Ongoing Professional Relationship

A will should not necessarily be viewed as a document that is written once and then forgotten forever.

Life changes.

People marry, separate, have children or grandchildren, buy and sell property, start businesses and experience changes in their financial circumstances.

Relationships with intended beneficiaries can also change.

A local solicitor who has previously advised a client may be able to assist when the client’s estate planning needs to be reviewed.

Having an established professional relationship can make future conversations easier because the firm may already understand the background to the client’s arrangements.

A Solicitor Can Identify Issues You May Not Have Considered

One of the limitations of preparing a will without advice is that you may not know which questions need to be asked.

A person might believe their wishes are straightforward but overlook an issue that could affect the estate.

For example, professional advice may be particularly appropriate where there are:

• Children from previous relationships;
• Unmarried partners;
• Dependants requiring ongoing support;
• Business interests;
• Overseas property;
• Complicated property ownership arrangements;
• Significant lifetime gifts;
• Potential disputes between family members; or
• Concerns about possible claims against the estate.

Identifying these issues while the will is being prepared can be preferable to leaving executors and beneficiaries to deal with uncertainty later.

What Is Probate?

Probate is commonly used to describe the legal process involved in obtaining authority to deal with somebody’s estate after they die.

Where there is a valid will and an executor is applying, the relevant document is generally a grant of probate.

The grant provides evidence of the executor’s authority when dealing with organisations holding the deceased person’s assets.

Where there is no will, a person entitled under the applicable rules may instead apply for letters of administration.

Not every estate requires a grant, so the first step can involve establishing whether probate is actually necessary.

What Does an Executor Have to Do?

Being named as an executor can involve significant responsibilities.

Before applying for probate, the estate normally needs to be identified and valued.

This may involve establishing the deceased person’s assets and liabilities and determining whether Inheritance Tax issues need to be addressed.

Once the appropriate authority has been obtained where required, estate administration can involve collecting assets, paying liabilities and administration expenses, dealing with tax matters and eventually distributing the estate according to the will.

The process can become more complicated where an estate contains property, investments, businesses, overseas assets or disagreements between beneficiaries.

Can You Apply for Probate Without a Solicitor?

Yes.

Executors can apply for probate themselves where appropriate.

Government services allow eligible individuals to apply without instructing a solicitor.

However, the fact that somebody can administer an estate personally does not necessarily mean that doing so will be the best option in every situation.

Straightforward estates may be manageable without extensive professional involvement.

More complicated estates can involve legal and tax issues that executors may prefer to have professionally handled.

The decision will depend on the circumstances.

When Might a Probate Solicitor Be Particularly Helpful?

Professional assistance may be valuable where the estate is complicated or where the executor is uncertain about their responsibilities.

Examples might include situations involving:

• A large or complicated estate;
• Several properties;
• Business interests;
• Overseas assets;
• Inheritance Tax considerations;
• Trusts;
• Difficulty identifying assets or beneficiaries;
• Questions about the validity or interpretation of a will;
• Family disagreements;
• Potential claims against the estate; or
• An executor who does not feel comfortable administering the estate personally.

A solicitor can explain the process and, depending on the instructions, handle some or much of the administration on behalf of the executors.

Local Support During Bereavement

Probate is different from many other legal services because clients are often dealing with it shortly after losing somebody close to them.

At that time, even routine administrative tasks can feel burdensome.

Executors may need to communicate with financial institutions, establish the value of assets, understand tax requirements, apply for the appropriate grant and eventually distribute the estate.

At the same time, family members may have questions about the will and what happens next.

Having a solicitor who can explain the process clearly and provide a consistent point of contact can reduce some of the uncertainty.

For some families, being able to visit a nearby office or speak with a familiar adviser can be particularly reassuring.

Understanding the Individual Estate

Probate is not simply a matter of completing one form.

Every estate is different.

One estate may consist largely of a bank account and personal possessions. Another may include a home, investments, business shares and assets in another country.

The family structure may also affect the administration.

A solicitor can review the circumstances and explain which steps are likely to be required.

This can help executors understand both their responsibilities and the likely stages involved.

Help with the Original Will

The original will can be extremely important when applying for probate.

Where there is a will, GOV.UK guidance states that the original is generally required for the probate application rather than a photocopy. The Probate Registry keeps the original will, which becomes a public record once probate is granted.

People sometimes store their original will with the solicitor who prepared it.

Professional storage can therefore provide an additional practical advantage, provided executors or appropriate family members know where the original document is held.

Knowing where to locate the will can prevent unnecessary difficulty after death.

What Happens If There Is No Will?

If somebody dies without leaving a valid will, the intestacy rules determine who is entitled to the estate.

The closest eligible relative may also be entitled to apply to administer the estate.

Importantly, an unmarried partner does not automatically have the same position as a spouse or civil partner under the intestacy rules.

This is one reason making a will can be particularly important for people whose family or relationship arrangements do not fit the assumptions made by intestacy law.

A solicitor can explain how the rules apply and help a client create a will reflecting their actual wishes.

Professional Regulation and Protection

Another reason to consider using a solicitor is professional regulation.

Solicitors are regulated professionals and must meet applicable professional standards.

The Solicitors Regulation Authority (SRA) explains that only individuals it approves can call themselves solicitors.

Most solicitors work within SRA-regulated law firms. Clients using regulated firms benefit from protections that can include required levels of professional indemnity insurance and established complaints procedures.

This can be relevant when comparing a regulated solicitor with an unregulated provider of will-writing services.

Consumers should check the regulatory status and protections offered by whoever they choose.

Local Does Not Mean Less Specialist

Choosing a local firm does not necessarily mean compromising on expertise.

Many local firms have solicitors who regularly work in wills, probate, estate administration and related private-client matters.

The useful question is not simply whether the office is nearby, but whether the solicitor has appropriate experience for the work required.

Clients may wish to ask a prospective solicitor about their experience, how the work will be handled, likely fees and who their main point of contact will be.

The ideal combination is accessibility and appropriate expertise.

Clearer Communication Throughout the Process

Legal terminology surrounding wills and probate can initially seem confusing.

Terms such as executor, administrator, beneficiary, intestacy, estate, grant of probate and letters of administration may all appear during the process.

A good solicitor should explain these concepts rather than assuming the client already understands them.

Local firms can also provide continuity, allowing clients to know who they should contact when questions arise.

For families dealing with bereavement, straightforward communication can make a significant difference to the experience.

What About the Cost of Using a Solicitor?

Cost is understandably an important consideration.

Professional legal assistance involves fees, and the amount will depend on the type and complexity of the work.

A straightforward will may require significantly less work than complicated estate planning involving business interests or overseas assets.

Similarly, the cost of probate assistance can depend on the size and complexity of the estate and how much of the administration the solicitor is asked to handle.

Clients should ask for clear information about fees and the scope of the service before proceeding.

The cheapest option is not necessarily the best value if important legal issues are missed, but professional assistance should also be proportionate to the client’s needs.

Choosing the Right Solicitor

Locality can be a useful starting point, but it should not be the only consideration.

When choosing a solicitor for wills or probate, consider factors such as:

• Experience in wills and estate administration;
• Whether the firm is appropriately regulated;
• How clearly the solicitor communicates;
• Whether appointments are available in a convenient format;
• How fees are explained;
• Who will actually handle the matter;
• Whether the firm can assist with more complicated issues if they arise; and
• Whether you feel comfortable discussing personal matters with the adviser.

Wills and probate can involve deeply personal decisions.

It is therefore reasonable to choose a professional with whom you feel able to communicate openly.

Conclusion

Choosing a solicitor for wills and probate is not simply about completing paperwork.

A will deals with important decisions about family, property and what should happen after death. Probate places legal and administrative responsibilities on people who may simultaneously be coping with bereavement.

A local solicitor can provide professional advice together with the accessibility and personal contact that many clients value during these situations.

For will-making, this can mean discussing your circumstances properly, identifying potential complications and ensuring that your wishes are recorded in an appropriate legal document.

For probate, it can mean having somebody available to explain the process, assist with the application and estate administration, and help address complications when they arise.

It is possible to make a will or apply for probate without instructing a solicitor in many circumstances. However, professional advice can be particularly valuable where family arrangements, assets, tax considerations or the estate itself are complicated.

Ultimately, the right solicitor should combine appropriate legal expertise with clear communication and a service that makes you feel supported and informed.

For many individuals and families, having that adviser within their local community provides an additional level of accessibility and reassurance.

Most people hope they will always be able to manage their own finances, make decisions about their care and deal with important everyday matters independently.

Unfortunately, circumstances can change unexpectedly.

An accident, serious illness or gradual loss of mental capacity can leave somebody unable to make certain decisions for themselves. When that happens, family members can be surprised to discover that being a spouse, partner, son or daughter does not automatically give them legal authority to make every decision on that person’s behalf.

A Lasting Power of Attorney (LPA) can help families prepare for this possibility.

An LPA allows an individual to appoint one or more trusted people to make particular decisions on their behalf if required. Depending on the type of LPA, those decisions may concern property and financial affairs or health and welfare.

The practical value of an LPA is often easiest to understand through an example.

The following is an illustrative scenario based on circumstances families can face rather than the story of an identifiable client. It demonstrates how having an LPA in place can help avoid additional legal and practical difficulties when a family is already dealing with a challenging situation.

A Family That Thought They Had Plenty of Time

Imagine a married couple, David and Margaret, both in their late sixties.

They own their home and have savings and pensions. Their two adult children live nearby and the family has always been close.

David generally deals with most of the household finances.

He manages online banking, pays larger bills, handles insurance and keeps track of the couple’s savings and investments.

Margaret knows broadly how their finances are organised, but David has always taken responsibility for the details.

Like many couples, they have discussed what might happen if one of them became seriously ill.

Their assumption is simple: because they are married, Margaret would be able to deal with David’s affairs if he could no longer do so himself.

Their children make a similar assumption.

But legally, matters are not always that straightforward.

Why Being Married Does Not Automatically Solve Everything

Marriage does not give one spouse unlimited legal authority to manage everything belonging to the other spouse if mental capacity is lost.

Similarly, adult children do not automatically gain authority over a parent’s finances or healthcare simply because they are close relatives.

This can come as a surprise.

A bank, investment provider or other organisation may need proper legal authority before allowing another person to manage someone’s individual affairs.

For important health and welfare decisions, family members also do not simply acquire all of the legal decision-making powers that the individual previously held.

This is where advance planning through an LPA can become extremely valuable.

David and Margaret Decide to Make LPAs

After discussing estate planning with a solicitor, David and Margaret decide that wills alone are not enough for their circumstances.

A will deals primarily with what should happen after somebody dies.

An LPA addresses a very different question:

What happens if you are still alive but need somebody else to make certain decisions for you?

David and Margaret each decide to create LPAs.

They appoint trusted family members as attorneys and discuss carefully who should be responsible for different decisions.

At the time, neither expects the documents to be needed anytime soon.

That is often the nature of planning ahead. The documents are prepared while the person is able to make their own decisions so that appropriate arrangements already exist if circumstances later change.

What Is a Lasting Power of Attorney?

A Lasting Power of Attorney is a legal document through which a person — known as the donor — appoints one or more people — known as attorneys — to make decisions on their behalf.

In England and Wales, there are two types of LPA:

• Property and financial affairs LPA
• Health and welfare LPA

They cover different areas of decision-making.

A person can make one type or both.

The appropriate arrangement depends on the individual’s circumstances and wishes.

Property and Financial Affairs LPA

A property and financial affairs LPA can authorise attorneys to deal with matters involving money and property.

Depending on the circumstances and authority granted, this may include tasks such as:

• Managing bank or building society accounts;
• Paying bills;
• Collecting benefits or pensions;
• Managing investments;
• Dealing with property; and
• Handling other financial matters.

A property and financial affairs LPA can potentially be used while the donor still has mental capacity if the donor gives permission, once the LPA has been registered.

This can be useful even before a person loses capacity.

For example, somebody with physical mobility difficulties might want an attorney to help manage certain financial matters while they continue making their own decisions.

Health and Welfare LPA

A health and welfare LPA deals with decisions concerning personal welfare.

Depending on the circumstances, this can include matters such as:

• Where the person should live;
• Their day-to-day care;
• Medical care; and
• Certain treatment decisions.

Unlike a property and financial affairs LPA, a health and welfare LPA can only be used when the donor lacks the mental capacity to make the particular decision themselves.

The donor can also decide whether their attorneys should have authority concerning decisions about life-sustaining treatment.

This is an important decision that should be considered carefully when the LPA is prepared.

Then Something Unexpected Happens

Several years after making the LPAs, David experiences a serious medical event.

After treatment, it becomes clear that his ability to understand and manage complicated financial decisions has been significantly affected.

The family’s immediate priority is his health.

But everyday financial responsibilities continue.

Household bills still need to be paid.

Insurance still needs attention.

Financial accounts still need to be managed.

Important correspondence continues arriving.

Margaret suddenly has to manage responsibilities that David previously handled.

Without advance arrangements, the family could face additional legal and administrative difficulties at exactly the time they are least equipped to deal with them.

Fortunately, David’s registered property and financial affairs LPA already exists.

The Difference the LPA Makes

Because David appointed attorneys while he had the capacity to do so and the LPA was properly registered, his attorneys have a recognised legal framework through which they can act within the authority given to them.

They can approach relevant organisations and demonstrate their authority.

This does not mean that attorneys can simply do whatever they want.

Attorneys have legal duties.

They must follow the principles of the Mental Capacity Act 2005 and act in the donor’s best interests where the donor lacks capacity to make the relevant decision.

But having the LPA in place means the family is not starting from the beginning when the crisis occurs.

The legal planning was done earlier.

What Could Have Happened Without the LPA?

If David had lost mental capacity without having made an appropriate LPA, the family might have needed to consider applying to the Court of Protection for authority to make certain decisions on his behalf.

For financial matters, this can involve an application for somebody to be appointed as a deputy.

Deputyship provides an important legal mechanism for protecting people who lack capacity and have not made appropriate arrangements in advance.

However, it is a different process from making an LPA.

With an LPA, the donor chooses their attorney while they have the mental capacity to make that choice.

With deputyship, the Court of Protection decides whether to appoint a deputy after the relevant person has lost capacity to make the necessary decision themselves.

That difference can be significant for families.

Choosing Who You Trust

One of the major benefits of making an LPA in advance is the opportunity to choose who should act.

The donor can appoint one attorney or several.

Attorneys must satisfy eligibility requirements.

When appointing more than one attorney, the donor also needs to decide how they should make decisions.

They may be appointed to act:

• Jointly, meaning they must make specified decisions together;
• Jointly and severally, allowing them to make decisions together or individually; or
• In a combination specified within the LPA.

These choices can affect how practical the arrangement is in the future.

A solicitor can help explain the implications before the document is completed.

Mental Capacity Is Decision-Specific

Mental capacity is not necessarily an all-or-nothing concept.

Under the Mental Capacity Act 2005, a person must be assumed to have capacity unless it is established that they lack it.

A person should not be treated as unable to make a decision merely because they make a decision that others consider unwise.

Capacity also relates to the particular decision at the relevant time.

Someone might be capable of making straightforward everyday decisions while lacking capacity to understand a more complicated financial or medical decision.

This is particularly important for attorneys.

The existence of an LPA does not mean the donor should automatically stop making their own decisions.

Attorneys Must Support the Donor’s Decision-Making

The Mental Capacity Act requires appropriate steps to be taken to help a person make a decision before concluding that they are unable to make it.

This reflects an important principle.

An LPA is not designed to unnecessarily remove control from the donor.

Where the donor can make a particular decision, they should be allowed to do so.

Attorneys become particularly important when the donor genuinely cannot make the relevant decision themselves or, in the case of a financial LPA, where the donor has authorised assistance while retaining capacity.

Attorneys Must Act in the Person’s Best Interests

Where somebody lacks capacity to make a particular decision, any act done or decision made on their behalf under the Mental Capacity Act must be in their best interests.

This is a legal obligation.

An attorney cannot simply choose whatever is easiest for themselves.

Best-interests decision-making involves considering relevant circumstances and, where appropriate, the person’s past and present wishes and feelings, beliefs and values.

Other people involved in the person’s care or interested in their welfare may also need to be consulted where appropriate.

This is one reason choosing attorneys carefully is so important.

Why Making an LPA Early Matters

An LPA must be created while the donor has the mental capacity to make it.

This makes timing important.

Families sometimes begin thinking about powers of attorney only after somebody has already lost the capacity required to create one.

At that stage, it may be too late to make an LPA.

A Court of Protection application may then need to be considered instead.

Planning earlier avoids relying on the hope that there will always be time later.

LPAs Are Not Only for Older People

There is a common misconception that LPAs are documents only for elderly people.

They are not.

Any eligible adult may consider making an LPA.

Mental capacity can be affected by circumstances that are not limited to old age.

Serious illness, accidents and other unexpected events can affect younger adults as well.

An LPA is therefore better understood as part of general future planning rather than simply planning for old age.

Registration Is Essential

Creating an LPA involves more than signing a document and putting it in a drawer.

The LPA must be registered with the Office of the Public Guardian (OPG) before it can be used.

Registration takes time.

This provides another reason not to wait until an emergency develops before starting the process.

Families who prepare and register LPAs in advance can avoid discovering during a crisis that the document cannot yet be used.

The Role of the Certificate Provider

An LPA requires a certificate provider.

The certificate provider confirms that, in their opinion, the donor understands what they are doing and is not being pressured or forced into making the LPA.

This is an important safeguard.

Giving another person authority over financial or welfare decisions is significant.

The LPA system therefore contains protections designed to help ensure that the donor is acting voluntarily and understands the arrangement.

Why Professional Advice Can Help

It is possible to make and register an LPA without using a solicitor.

However, professional advice can be valuable where the donor wants help understanding the options or where family or financial circumstances are complicated.

A solicitor can discuss issues such as:

• Which type of LPA is appropriate;
• Who should be appointed as attorney;
• Whether several attorneys should act jointly or jointly and severally;
• Whether replacement attorneys should be appointed;
• What instructions or preferences should be included;
• The authority relating to life-sustaining treatment;
• How the LPA interacts with other estate planning; and
• How the document should be completed and registered.

The aim is not simply to create a document but to create an arrangement that is likely to work effectively if it is eventually needed.

Avoiding Family Disagreement

An LPA can also provide clarity.

Without advance planning, relatives may disagree about who should handle financial matters or what the person would have wanted.

An LPA allows the donor to make important choices themselves while they are able to do so.

They can decide who they trust and provide appropriate instructions or preferences.

That does not guarantee that disagreements will never occur, but it can create a much clearer legal framework for decision-making.

LPA vs a Will

LPAs and wills perform completely different functions.

A will primarily deals with what happens to a person’s estate after death.

An LPA operates during the donor’s lifetime and provides authority for attorneys to make specified decisions where the legal requirements for its use are met.

An attorney’s authority under an LPA ends when the donor dies.

At that point, responsibility for administering the deceased person’s estate passes to the appropriate personal representatives, such as the executors named in the will.

For many people, therefore, wills and LPAs are complementary parts of planning rather than alternatives.

Returning to David and Margaret

For David’s family, the value of the LPA becomes clear only when it is actually needed.

When the documents were originally prepared, they may have seemed like precautionary paperwork.

Years later, they provide a structure for dealing with important decisions during an extremely difficult period.

Margaret and the children still have to cope with David’s medical situation.

The LPA cannot remove the emotional difficulty of that experience.

What it can do is prevent the family from simultaneously discovering that they lack the legal authority needed to deal with important aspects of his affairs.

That distinction can make a significant practical difference.

What If David Had Never Lost Capacity?

The LPAs would still have served a purpose.

Planning for an emergency does not become wasted simply because the emergency never occurs.

Insurance is purchased in the hope that it will not be needed. Estate planning can work in a similar way.

The value lies partly in knowing that arrangements exist if circumstances change.

An LPA can provide reassurance to the donor as well as their family.

Questions to Consider Before Making an LPA

Anyone considering an LPA may find it useful to think about several questions:

• Who do I trust to make decisions for me?
• Would that person be able to manage the responsibility?
• Should I appoint more than one attorney?
• How should multiple attorneys make decisions?
• Who could act as a replacement if an attorney cannot continue?
• Are there particular wishes I want my attorneys to understand?
• Do I need both types of LPA?
• Who should know that the LPAs exist?
• Where will important documents and information be kept?

These discussions can also encourage wider conversations about future wishes and estate planning.

Conclusion

A Lasting Power of Attorney may seem unnecessary when somebody is healthy, independent and fully capable of managing their own affairs.

Its importance can become much clearer when circumstances suddenly change.

An unexpected accident or illness can leave a family dealing not only with emotional distress but also with practical questions about who has legal authority to manage finances or participate in important welfare decisions.

An LPA allows the individual to address those questions in advance.

They can choose trusted attorneys, decide what authority those attorneys should have and put arrangements in place while they still have the mental capacity to make those choices.

As the illustrative story of David and Margaret demonstrates, advance planning cannot prevent illness or remove the emotional impact of a family crisis. What it can do is reduce some of the additional legal and administrative uncertainty that might otherwise arise.

Without an LPA, families may need to consider an application to the Court of Protection after capacity has already been lost.

With an appropriately prepared and registered LPA, the individual has already made an important decision themselves: deciding who they trust to help manage their affairs if the need arises.

For anyone reviewing their will or wider estate planning, considering Lasting Powers of Attorney at the same time can therefore be worthwhile.

Serious illness can cause people to think about matters they may previously have postponed, including what should happen to their property, savings and possessions after death.

For some people, that conversation begins while they are receiving treatment in hospital.

This can create an understandable sense of urgency. A patient may realise that they have never made a will, that an existing will no longer reflects their circumstances, or that important changes are needed following marriage, separation, changes within the family or changes to their assets.

Being ill or admitted to hospital does not automatically prevent somebody from making or changing a will.

However, additional care may be required.

A valid will must satisfy legal requirements, and questions surrounding mental capacity, undue influence, voluntariness and proper witnessing can become particularly important when a person is seriously unwell.

Where time is limited, obtaining legal advice promptly can help ensure that the person’s wishes are properly understood and that the will is prepared and executed correctly.

This article explains some of the important considerations when making a will during illness or hospitalisation in England and Wales.

Can You Make a Will While in Hospital?

Yes.

There is no general rule preventing somebody from making a will simply because they are in hospital.

A person may be receiving treatment, recovering from an operation or living with a serious illness and still be capable of making a valid will.

The important questions concern whether the legal requirements for a valid will are satisfied.

Generally, the person must:

• Be aged 18 or over;
• Make the will voluntarily;
• Have the necessary mental capacity;
• Put the will in writing;
• Sign it using the legally required procedure; and
• Have the signature properly witnessed by two adults.

Hospitalisation itself does not remove a person’s ability to satisfy these requirements.

Why Might Someone Need a Will Urgently?

There are many reasons somebody may decide to make or update a will during illness.

They may never previously have made one.

Alternatively, an existing will may have been prepared many years earlier and no longer reflect their current circumstances.

For example, there may have been changes involving:

• Marriage or civil partnership;
• Separation or divorce;
• Children or grandchildren;
• Property ownership;
• Business interests;
• Financial circumstances;
• Intended beneficiaries;
• Executors; or
• Particular gifts.

A serious diagnosis can also prompt somebody to review arrangements that they had always intended to address “later”.

Where the person’s health is deteriorating, time can become important.

However, urgency should not mean that the legal safeguards surrounding wills are ignored.

What Happens If Someone Dies Without a Will?

A person who dies without leaving a valid will dies intestate.

Their estate is then distributed according to the intestacy rules.

Those rules determine which relatives are entitled to inherit and in what circumstances.

This may not produce the result the deceased person would have chosen.

For example, unmarried partners do not automatically have the same inheritance rights under intestacy as spouses or civil partners.

Making a will allows somebody to record their own wishes rather than relying on the statutory rules.

For somebody facing serious illness, that can provide important clarity for their family.

Does Serious Illness Mean Someone Lacks Mental Capacity?

No.

Physical illness and mental capacity are not the same thing.

A person can be seriously physically unwell while remaining entirely capable of understanding and making decisions.

Similarly, being elderly does not automatically mean that somebody lacks capacity.

The relevant issue is the person’s ability to make the particular decision at the relevant time.

Government guidance concerning mental capacity emphasises that capacity should not simply be assumed to be absent because somebody has an illness or disability.

A person should generally be presumed capable of making their own decisions unless the contrary is established.

What Is Mental Capacity?

Broadly, mental capacity concerns a person’s ability to make a particular decision.

Under the Mental Capacity Act framework, relevant considerations include whether somebody can understand information needed for a decision, retain it sufficiently to make that decision, weigh the relevant information and communicate their decision.

Capacity is also decision-specific and time-specific.

Someone might be able to make one decision but not another.

Likewise, a person’s capacity may fluctuate.

Illness, medication, pain, fatigue or confusion may potentially affect somebody differently at different times.

This can become particularly relevant in a hospital environment.

Is Capacity to Make a Will Different?

The capacity required to make a will is often referred to as testamentary capacity.

Will-making has its own established legal principles, and professional assessment may require careful consideration of whether the person understands the nature and effect of making a will, the broad extent of their estate and the people whose potential claims they ought to consider.

The fact that somebody needs assistance with other decisions does not necessarily mean they cannot make a will.

Indeed, government guidance concerning statutory wills expressly recognises that somebody who has lost capacity to manage their finances may still retain the ability to make their own will.

Capacity therefore needs to be considered specifically in relation to the will being made.

Why Can Capacity Become an Issue in Hospital?

Hospital patients may be experiencing circumstances that can affect decision-making temporarily or permanently.

For example, a person may be affected by:

• Serious illness;
• Cognitive impairment;
• Confusion;
• A brain injury;
• Effects of medical treatment;
• Fatigue; or
• Other factors affecting their ability to understand or communicate.

This does not mean that every hospital patient has questionable capacity.

It means that where there is a genuine concern, appropriate steps may need to be taken to assess and document the position.

In some circumstances, medical input may be appropriate.

Can a Solicitor Visit Someone in Hospital?

Depending on the firm and circumstances, solicitors may be able to arrange appointments away from their office, including hospital visits.

This can be particularly useful where somebody cannot travel because of their health.

Where the matter is urgent, the solicitor will normally need sufficient information to understand the person’s circumstances and wishes before the will can be prepared.

Practical arrangements may also need to be coordinated with the hospital, particularly where the patient is undergoing treatment or there are restrictions on visitors.

Contacting a solicitor as early as possible is therefore preferable to waiting until the situation becomes critical.

Why Might the Solicitor Want to Speak to the Patient Alone?

Family members often help an ill relative contact a solicitor.

There is nothing unusual about that.

However, the solicitor may need to speak privately with the person making the will.

This can be important for several reasons.

The solicitor needs to establish the client’s own instructions.

They may also need to consider whether the client understands what they are doing and whether their decisions are being made voluntarily.

If another person remains in the room answering questions or directing the conversation, it may become harder to establish that the will genuinely represents the client’s independent wishes.

A private conversation can therefore be an important safeguard.

What Is Undue Influence?

A will must reflect the testator’s own intentions.

Concerns can arise where another person pressures or coerces somebody into making a will or changing its contents.

This can become especially sensitive where a person is seriously ill or dependent on relatives or carers.

A family member may genuinely believe they are helping while inadvertently dominating discussions.

More serious cases may involve allegations that somebody deliberately pressured a vulnerable person for financial benefit.

A solicitor preparing a will should therefore obtain instructions from the client and be alert to circumstances that raise concerns about voluntariness or influence.

Can a Family Member Tell the Solicitor What the Will Should Say?

Family members can provide useful practical information, particularly where the client has mobility or communication difficulties.

But the will must ultimately reflect the wishes of the person making it.

A relative cannot simply instruct a solicitor to prepare somebody else’s will according to the relative’s preferences.

Where the client has capacity, the instructions must come from the client.

If the person no longer has the capacity required to make a will, a different legal process may need to be considered.

What If the Person Cannot Physically Sign?

Physical difficulty signing does not necessarily make it impossible to execute a will.

Current GOV.UK guidance confirms that someone can sign on the will-maker’s behalf where the will-maker is unable to sign personally, provided the required conditions are followed.

However, this is an area where professional assistance can be particularly valuable.

The execution must still comply with the legal formalities, and it should be clear that the signature is being made on the person’s behalf and at their direction.

Where health is poor, careful documentation can help reduce uncertainty later.

How Many Witnesses Are Required?

For an ordinary will in England and Wales, two adult witnesses are required.

The will-maker signs in the presence of both witnesses.

The witnesses then sign in the will-maker’s presence.

The required procedure must be followed correctly.

This can require some practical planning in a hospital, where access to the patient may be limited.

Suitable independent witnesses therefore need to be identified before execution.

Who Should Witness a Will?

Choosing witnesses carefully is important.

A beneficiary under the will should generally not act as a witness.

Nor should the spouse or civil partner of somebody receiving a gift under the will.

GOV.UK guidance warns that a person cannot leave their witnesses, or the witnesses’ married partners, anything under the will.

Using appropriate independent witnesses can help avoid problems.

In a hospital setting, the solicitor can advise on suitable arrangements rather than assuming that whoever happens to be present should witness the document.

Can Hospital Staff Witness a Will?

Whether an individual member of hospital staff can appropriately act as a witness will depend on the circumstances and relevant hospital policies.

There may be practical or professional restrictions.

It is therefore unwise to assume that doctors or nurses will automatically be available or willing to witness a will.

Where possible, witnessing arrangements should be discussed in advance.

A solicitor arranging an urgent hospital will can help identify what is required and coordinate an appropriate execution process.

What If the Patient Is Too Tired?

Capacity and ability to give instructions may vary during serious illness.

A person may be alert in the morning but exhausted after treatment.

Medication or medical procedures may also affect how well somebody can concentrate.

Where possible, a meeting should take place when the client is best able to engage with the process.

Government mental-capacity guidance recognises the importance of timing and circumstances when supporting people to make decisions.

A solicitor may therefore consider whether another time would allow the client to understand and communicate more effectively, provided the matter can safely wait.

What If Capacity Fluctuates?

Some medical conditions can cause capacity to fluctuate.

A person may be confused at one point but much clearer later.

The relevant question is whether they have the required capacity when the decision is being made.

This can make timing particularly important.

Where the circumstances allow, it may be appropriate to arrange discussions for a period when the person is more alert.

Where there is uncertainty, medical evidence may also be considered.

Can a Doctor Assess Capacity?

Medical professionals can provide valuable evidence where capacity is genuinely in question.

Government guidance recognises that doctors and other medical professionals may assist with capacity assessments.

For legal decisions such as making a will, the solicitor will need to be satisfied about the client’s ability to give valid instructions and make the will.

Where illness or cognitive difficulties create uncertainty, the solicitor may consider medical input appropriate.

The precise approach will depend on the circumstances.

Why Is Record-Keeping Important?

A will may not be examined closely until after the person who made it has died.

If somebody later challenges the will, questions might be raised about:

• The person’s capacity;
• Whether they understood the document;
• Whether they were pressured;
• Whether the will accurately recorded their instructions; or
• Whether it was executed correctly.

Where a will is prepared during serious illness, careful professional records can therefore be particularly important.

The solicitor may record the circumstances surrounding the instructions and execution and any steps taken to address capacity or undue-influence concerns.

What Information Does a Solicitor Need?

Even when a will is urgent, the solicitor needs enough information to understand what the client wants.

This may include details of:

• Family members;
• Intended beneficiaries;
• Property;
• Savings and investments;
• Business interests;
• Overseas assets;
• Existing wills;
• Executors;
• Specific gifts; and
• Any people the client wishes to provide for or intentionally exclude.

Complicated circumstances may require additional discussion.

Providing accurate information as early as possible can help when time is limited.

What If There Is Already a Will?

The solicitor should normally be told about any existing will.

The client may simply need to review whether it still reflects their wishes.

If substantial changes are required, making a new will may be appropriate.

Smaller changes can sometimes be made using a codicil, although the correct approach depends on the circumstances.

A new will can revoke an earlier one if properly drafted to do so.

Professional advice can help avoid creating conflicting documents or uncertainty about which version should apply.

Can a Will Be Changed at the Last Minute?

Potentially, yes, provided the person still has the required capacity and the legal formalities can be completed.

But last-minute changes can create additional risks.

There may be less time to obtain instructions, review complicated assets, consider tax consequences or investigate concerns about capacity.

Sudden substantial changes benefiting one family member while excluding others can also potentially lead to questions after death.

None of this means that a late will is automatically invalid.

It simply means that careful professional preparation can become particularly valuable.

What If the Person Is Very Close to Death?

Where somebody may have only a short time to live, the situation can become extremely urgent.

A solicitor should be contacted immediately.

The priority is to determine whether the person can still give valid instructions and whether there is enough time to prepare and properly execute the will.

Family members should avoid trying to answer questions on the person’s behalf where the individual can communicate their own wishes.

The fact that death is expected soon does not remove the requirements relating to capacity, voluntariness or execution.

What Happens If the Person No Longer Has Capacity?

If somebody no longer has the testamentary capacity required to make or change their own will, relatives cannot simply make one for them.

Instead, it may be possible to apply to the Court of Protection for a statutory will.

A statutory will is a will authorised by the Court of Protection on behalf of somebody who lacks the capacity to make one themselves.

The process requires evidence and court approval.

It is fundamentally different from an ordinary will made personally by someone with testamentary capacity.

What Is a Statutory Will?

A statutory will can be considered where a person cannot make or change a will themselves because they lack the necessary capacity.

The Court of Protection considers the application.

Government guidance indicates that the applicant must provide supporting information, including evidence concerning the person’s lack of capacity and details of the proposed will.

The Court determines whether the proposed arrangements should be authorised.

This is not simply a way for relatives to choose how another person’s estate should be distributed.

The court process exists to protect the interests of the person who lacks capacity.

Are Emergency Statutory Will Applications Possible?

Yes.

GOV.UK guidance specifically recognises that an emergency application can be made to the Court of Protection where the person concerned has only a short time to live.

However, court involvement is inevitably different from being able to make a personal will while capacity remains.

This is another reason early estate planning is preferable wherever possible.

Leaving matters until somebody is critically ill can significantly reduce the available options.

Should You Wait Until You Are Ill to Make a Will?

Ideally, no.

A hospital will can be valid and sometimes urgent circumstances cannot be avoided.

But making a will while healthy usually provides more time to think carefully about decisions, gather information and obtain advice.

There is also less risk that questions will arise about the effects of illness, medication, fatigue or cognitive impairment.

A will can be reviewed later if circumstances change.

Making one earlier therefore does not prevent future changes.

Will an Urgent Will Automatically Be Challenged?

No.

A will is not automatically invalid or suspicious merely because it was made shortly before death.

People are entitled to make or change wills while they have the necessary capacity and satisfy the legal requirements.

However, circumstances surrounding a late will can sometimes receive closer scrutiny, particularly if substantial changes were made or family members disagree about the person’s capacity or independence.

Following proper procedures and obtaining professional advice can help provide clearer evidence about how and why the will was made.

What Can Families Do to Help?

If a relative in hospital says they want to make a will, family members can help with practical arrangements without taking over the decision-making process.

They might:

• Help locate an existing will;
• Find contact details for a solicitor;
• Gather basic information about assets where requested;
• Help arrange an appointment;
• Inform hospital staff that a professional visitor may attend; and
• Give the client privacy to speak with the solicitor.

The goal should be to help the person express their own wishes.

Conclusion

Being seriously ill or admitted to hospital does not automatically prevent somebody from making a will.

What matters is whether the person has the required testamentary capacity, is acting voluntarily, can communicate their wishes and can complete the will using the legally required signing and witnessing procedure.

However, illness can make the process more complicated.

Capacity may fluctuate. Medication, treatment or fatigue may affect the person’s ability to engage at particular times. Family members may be heavily involved in their care, creating a need to ensure that instructions genuinely reflect the client’s own wishes. Practical arrangements must also be made for appropriate witnesses.

Where there is genuine doubt about capacity, medical input may be appropriate.

If the person cannot physically sign, alternative arrangements may still be possible provided the legal requirements are carefully followed.

Where somebody has already lost the capacity required to make their own will, relatives cannot simply create one for them. An application to the Court of Protection for a statutory will may instead need to be considered.

The most important practical lesson is not to delay.

Making or reviewing a will while healthy generally provides more time and fewer complications. But where illness has already occurred, obtaining specialist legal advice promptly can help establish what options remain available and ensure that the person’s wishes are handled with appropriate care.

When couples start thinking about making wills, they often want broadly the same thing.

A married couple might each want their estate to pass to the surviving spouse first and then, after the second death, to their children.

Civil partners may want a similar arrangement.

For couples whose wishes closely reflect one another, mirror wills can provide a relatively straightforward way of recording those intentions.

Despite the name, a mirror will is not one document signed by two people. Each person has their own separate will. The provisions simply “mirror” one another, usually by making similar or corresponding gifts.

Mirror wills can work well for many couples, but they are not appropriate for everyone.

In particular, couples should understand what happens after the first person dies, whether the survivor can change their will, how remarriage may affect an existing will, and whether more sophisticated estate planning may be appropriate where there are children from previous relationships or other complicated circumstances.

This article explains what mirror wills are, how they work and some of the situations in which couples may wish to consider them.

What Is a Mirror Will?

A mirror will is a term commonly used for two separate wills containing broadly corresponding provisions.

They are frequently prepared for spouses, civil partners or couples who want their estates distributed in similar ways.

For example, one spouse might make a will stating that their estate should pass to their husband or wife if that person survives them, with their children ultimately benefiting if the spouse has already died.

The other spouse makes a separate will containing corresponding provisions.

The two documents therefore reflect, or “mirror”, each other.

Are Mirror Wills One Legal Document?

No.

Each person has an individual will.

This distinction is important.

Even though the documents may contain very similar provisions, each person remains the testator of their own will.

Each will therefore needs to comply independently with the legal requirements for a valid will.

In England and Wales, a valid will generally needs to be made voluntarily by somebody aged 18 or over and of sound mind, put in writing, and properly signed and witnessed.

The fact that a couple’s wishes are identical does not remove those requirements.

A Simple Example of Mirror Wills

Consider a married couple, James and Sarah.

They have two children.

James’s will might broadly provide that his estate passes to Sarah if she survives him. If Sarah has already died, the estate passes to their children according to the terms of the will.

Sarah’s will contains corresponding provisions.

If James dies first, his will operates according to its terms.

Sarah’s own will remains a separate document.

If Sarah later dies without having changed it, her estate is distributed according to the provisions of her will.

This is a common type of arrangement, although actual wills need to deal with considerably more detail than this simplified example suggests.

Who Might Consider Mirror Wills?

Mirror wills can be suitable for couples whose estate-planning objectives are substantially aligned.

This may include:

• Married couples;
• Civil partners;
• Long-term unmarried couples;
• Couples with the same children;
• Couples who want broadly similar beneficiaries; or
• Couples who want the surviving partner to benefit first, followed by other chosen beneficiaries.

However, suitability depends on much more than relationship status.

The couple’s assets, property ownership, family structure, tax position and long-term objectives should also be considered.

Are Mirror Wills Only for Married Couples?

No.

Unmarried couples can also make wills containing corresponding provisions.

Indeed, making wills can be particularly important for unmarried partners.

In England and Wales, there is no general legal status of “common law marriage” simply because a couple has lived together for a long time.

Unmarried partners do not automatically receive the same inheritance rights under intestacy as spouses or civil partners.

A properly prepared will can therefore be especially important where one partner wants the other to inherit.

What Happens When the First Partner Dies?

When the first person dies, their will takes effect.

If the will leaves the estate to the surviving partner and the relevant conditions are satisfied, the survivor may inherit under the will.

The surviving person’s own mirror will does not take effect merely because their partner has died.

It remains their will and generally continues to govern what happens to their estate when they eventually die, unless it is subsequently changed or revoked.

This is where one of the most important features of ordinary mirror wills becomes relevant.

Can the Surviving Partner Change Their Mirror Will?

Generally, yes.

Ordinary mirror wills do not usually create an automatic rule permanently preventing either person from changing their own will.

While both people are alive, either may decide that their wishes have changed.

After the first person dies, the survivor may also potentially make a new will or otherwise alter their estate planning.

This can surprise families who assume that because the wills originally matched, the survivor must preserve the original arrangement forever.

That assumption should not be made.

If a couple wants legally binding restrictions concerning future changes, specialist advice is required because that raises different and potentially complicated legal issues.

Why Does the Ability to Change a Will Matter?

Consider James and Sarah again.

Their original mirror wills leave everything to the survivor and then to their two children.

James dies first.

Sarah inherits his estate.

Several years later, Sarah’s circumstances change.

She might remarry.

She might become estranged from one child.

She might decide to benefit somebody else.

She might make substantial gifts during her lifetime.

She might sell property or spend assets on care and living expenses.

She might also make a completely new will.

An ordinary mirror-will arrangement does not necessarily guarantee that James’s original expectation about what happens after Sarah’s death will ultimately occur.

Couples should understand this before deciding whether mirror wills provide enough protection for their objectives.

What About Children from Previous Relationships?

Blended families are one of the circumstances in which careful estate planning becomes particularly important.

Suppose both partners have children from previous relationships.

Each wants the survivor to be financially secure, but they also want to ensure that their own children ultimately benefit from part of the estate.

A straightforward mirror arrangement leaving everything outright to the survivor may not necessarily provide the certainty they expect.

After the first death, assets inherited outright by the survivor generally become part of the survivor’s financial position.

Future circumstances could then change what eventually passes to the first person’s children.

This does not mean mirror wills can never be appropriate for blended families.

It means that the couple should discuss their objectives carefully with a solicitor and consider whether other will structures may better achieve them.

Could a Trust Be More Appropriate?

Potentially.

Will trusts can sometimes be used where somebody wants to balance the needs of a surviving spouse or partner with the interests of other beneficiaries.

For example, certain arrangements may allow a surviving partner to benefit from property or assets while preserving an underlying interest for children or other beneficiaries.

Trusts involve additional legal and tax considerations and should not simply be inserted into a will without understanding their consequences.

Whether a trust is appropriate depends on the assets, family circumstances and objectives involved.

Professional advice can help determine whether a straightforward mirror will or a more tailored arrangement is preferable.

What If One Partner Owns the Family Home?

Property ownership can significantly affect estate planning.

A couple may live together in a property owned solely by one partner.

Alternatively, they may own it jointly.

The legal form of joint ownership can affect what happens on death.

For example, jointly owned property may pass differently depending on how the ownership is structured.

A will should therefore be prepared with an understanding of the client’s actual ownership arrangements rather than simply assuming that every asset passes through the will.

A solicitor can review the property position as part of the will-making process.

What Happens to Jointly Owned Assets?

Not every asset necessarily passes according to a will.

Some jointly owned assets may pass automatically to the surviving owner depending on how they are legally held.

This can be particularly important with property and certain financial accounts.

Consequently, writing “I leave everything to…” in a will does not necessarily tell the complete story of what happens to every asset after death.

Estate planning should consider both the will and the legal ownership of important assets.

Can Mirror Wills Help Parents Appoint Guardians?

Yes.

Parents making wills can record who they would like to act as guardians for children under 18 in appropriate circumstances.

Where parents share the same wishes, their wills may contain corresponding guardian provisions.

This can be an important part of family estate planning.

However, guardian appointments involve legal considerations concerning parental responsibility and the circumstances in which an appointment takes effect.

Parents should therefore obtain advice rather than relying solely on a generic template.

Can Mirror Wills Include Different Gifts?

Yes.

The wills do not have to be identical word for word.

A couple may have the same overall estate plan but still want certain individual provisions.

For example, one person may want to leave a particular personal possession to a relative while the other has a different specific gift.

The wills can still broadly mirror each other while reflecting those individual wishes.

This is another reason professionally prepared wills can be useful: similarity does not require ignoring each person’s individual circumstances.

What Happens If One Partner Dies Before the Other?

A properly drafted will should consider what happens if an intended beneficiary dies first.

GOV.UK guidance states that a will should address what happens if the people someone wants to benefit die before them.

Mirror wills can therefore include substitute provisions.

For example, a person might leave their estate to their spouse if the spouse survives them, but provide for children or other beneficiaries if the spouse has already died.

This helps reduce uncertainty if the order of deaths differs from what the couple expected.

What If Both Partners Die Around the Same Time?

Couples may also want to consider what should happen if both die in the same incident or within a short period.

Appropriate drafting can address survivorship and substitute-beneficiary arrangements.

This can be particularly important where there are children.

The will can specify who should ultimately inherit if the primary beneficiary cannot.

The appropriate wording depends on the couple’s circumstances and should be discussed during the will-making process.

What Happens to a Will After Marriage?

Marriage is particularly important when reviewing wills.

GOV.UK guidance states that getting married generally cancels a will made beforehand.

There is an important legal exception where a will is made in contemplation of marriage to a particular person and is appropriately drafted so that the intended marriage does not revoke it.

Couples planning to marry should therefore tell their solicitor.

Someone who prepares a will shortly before a wedding without addressing the forthcoming marriage could otherwise find that the legal effect is very different from what they intended.

What About Civil Partnerships?

Similar considerations apply to civil partnerships.

Formation of a civil partnership will generally revoke an earlier will, subject to applicable exceptions where the will was made in contemplation of that particular civil partnership.

Couples entering a civil partnership should therefore review their estate planning.

This is another reason wills should not simply be prepared and forgotten.

Major changes in legal relationship status can affect them.

What Happens After Divorce?

Divorce does not operate in exactly the same way as marriage.

In England and Wales, divorce generally causes provisions in a will concerning a former spouse to be treated differently rather than automatically cancelling the entire will.

For example, gifts to the former spouse may lapse and appointments of the former spouse as executor or trustee may cease to operate, subject to the precise terms and applicable law.

This can have unintended consequences for the remaining provisions.

Anyone separating or divorcing should therefore review their will rather than assume that the existing document will still produce the desired result.

Should Separated Couples Review Their Wills?

Yes.

Separation alone should not be assumed to have the same effect as a final divorce order.

A person who separates from their spouse but remains legally married may therefore need to consider their existing will urgently.

The same applies to other aspects of estate planning.

If a relationship has broken down, reviewing the will with a solicitor can help establish whether changes are appropriate.

Waiting until the divorce is final may leave an existing arrangement in place longer than intended.

Can Mirror Wills Reduce Inheritance Tax?

A mirror will is primarily a structure for recording corresponding testamentary wishes; it is not, by itself, a special tax product.

However, the way assets are left can have Inheritance Tax consequences.

Transfers between spouses or civil partners are generally covered by the spouse or civil partner exemption, subject to relevant rules and exceptions.

Other allowances and exemptions may also be relevant depending on the estate.

Tax planning should therefore be considered separately from the fact that two wills happen to mirror each other.

Couples with substantial or complicated estates should obtain appropriate advice.

Are Mirror Wills Cheaper Than Two Completely Different Wills?

A law firm may charge differently depending on the complexity of the work and its fee structure.

Where a couple has very similar wishes, preparing corresponding wills may be relatively straightforward.

However, cost should not be the only consideration.

A seemingly simple estate can involve complications arising from business ownership, overseas assets, previous relationships, property ownership or vulnerable beneficiaries.

The objective should be to create wills that properly reflect each person’s circumstances rather than simply selecting the shortest or cheapest document.

Can You Make Mirror Wills Yourself?

It is legally possible for individuals to prepare their own wills provided the legal requirements are satisfied.

However, GOV.UK recommends professional advice where a will is not straightforward.

Examples include circumstances involving overseas property, businesses, dependants who cannot care for themselves, shared property with someone who is not a spouse or civil partner, or family situations in which claims against the estate may arise.

Mirror wills can appear deceptively simple.

The wording may be similar, but the underlying family and asset arrangements still need to be considered.

What Are the Risks of Using a Template?

A generic template may not identify issues that the couple has not thought to mention.

For example:

• How is the family home legally owned?
• Are there children from previous relationships?
• What happens if the survivor remarries?
• Are there business interests?
• Are there assets overseas?
• Does either person support a vulnerable beneficiary?
• What happens if a beneficiary dies first?
• Who should act as executor?
• Are there particular gifts?
• Should trusts be considered?

The value of legal advice often lies in identifying the questions that need answering, not simply putting answers into a document.

Do Both Partners Need the Same Solicitor?

Couples commonly approach the same law firm to prepare mirror wills where their interests and wishes are aligned.

However, solicitors must comply with professional duties, including rules concerning conflicts of interest.

If a significant conflict emerges between the clients’ interests, separate advice may be necessary.

This can arise, for example, where one partner has different objectives concerning children from an earlier relationship or particular assets.

The appropriate approach depends on the circumstances.

Should Each Partner Understand Their Own Will?

Absolutely.

Even where two wills contain almost identical provisions, each person is making their own legal document.

Each should understand what their will does.

Neither person should simply sign because their partner has chosen the arrangement.

A valid will must be made voluntarily.

Professional advisers may therefore want to ensure that both clients understand their individual documents and are making their own decisions.

How Often Should Mirror Wills Be Reviewed?

GOV.UK recommends reviewing a will every five years and following major life changes.

Examples include:

• Marriage;
• Separation or divorce;
• Having a child;
• Moving house; or
• The death of an executor named in the will.

For couples with mirror wills, changes affecting one person may justify reviewing both documents.

Regular reviews help ensure that the wills still reflect current wishes and circumstances.

Can One Partner Secretly Change Their Will?

Because ordinary mirror wills remain separate wills, one person may generally be able to change their own testamentary arrangements.

That possibility is one of the reasons couples should understand exactly what mirror wills do — and what they do not do.

If the central objective is to create binding obligations restricting future changes, ordinary mirror wills should not be assumed to achieve that.

Specialist legal advice is essential where such an arrangement is contemplated.

Mirror Wills vs Mutual Wills

The expressions can sometimes cause confusion.

Mirror wills are generally separate wills with corresponding provisions.

“Mutual wills” can involve a very different and much more complicated legal concept in which an agreement concerning testamentary arrangements may potentially create binding consequences.

Couples should not assume that mirror wills automatically become mutual wills merely because they promise one another that they will not make changes.

Anyone seeking a binding arrangement should obtain specialist legal advice about the intended effect and potential consequences.

When Might Mirror Wills Not Be Enough?

A more tailored estate plan may be appropriate where there are:

• Children from previous relationships;
• Significant differences in each partner’s assets;
• Business interests;
• Overseas assets;
• Concerns about remarriage after the first death;
• Vulnerable beneficiaries;
• Complicated property ownership;
• Significant Inheritance Tax considerations;
• A desire to protect assets for particular beneficiaries; or
• A desire to restrict what happens to inherited assets after the first death.

None of these automatically rules out mirror wills.

They simply make professional advice more important.

What Should Couples Discuss Before Making Mirror Wills?

Before instructing a solicitor, couples may find it helpful to consider:

• Who should inherit after the first death?
• Who should inherit after both partners have died?
• What should happen if a beneficiary dies first?
• Who should act as executor?
• Who should look after children under 18?
• Are there specific possessions or charitable gifts to include?
• Are there children from previous relationships?
• Does either person own a business?
• Are any assets outside the UK?
• How is the family home owned?
• What would happen if the survivor later remarried?
• Would either person want the freedom to change their will later?

These conversations can reveal whether a straightforward mirror arrangement actually matches the couple’s objectives.

Conclusion

Mirror wills can provide a straightforward estate-planning solution for couples who have similar wishes.

Typically, each person makes their own will, with the provisions reflecting those of their partner. This might involve leaving assets to the surviving spouse or partner first and then providing for children or other beneficiaries after the survivor’s death.

However, the simplicity of mirror wills can sometimes create misunderstandings.

Most importantly, ordinary mirror wills should not be assumed to permanently bind the surviving partner to the original arrangement. The survivor’s will remains their own, and their circumstances and testamentary wishes may later change.

That possibility can be particularly important for blended families, where each partner has children from a previous relationship.

Marriage, civil partnership, divorce, separation, property ownership, business interests and overseas assets can also affect whether a straightforward mirror arrangement is appropriate.

For some couples, mirror wills provide exactly the flexibility and simplicity they want.

For others, trusts or more tailored estate-planning arrangements may deserve consideration.

The important starting point is not simply asking whether two wills should look the same. It is understanding what each person wants to happen after the first death, after the second death, and if family or financial circumstances change in the future.

A solicitor can help couples consider those possibilities and prepare wills that reflect both their shared objectives and their individual circumstances.

Planning for a time when you might be unable to make certain decisions for yourself can feel uncomfortable, but putting appropriate arrangements in place can make an enormous practical difference for you and your family.

Two terms frequently encountered in this area are Lasting Power of Attorney (LPA) and deputyship.

Both can involve another person making decisions for somebody else, but they are not interchangeable.

A Lasting Power of Attorney is generally created in advance by somebody who has the mental capacity to decide who they want to appoint as their attorney.

Deputyship usually becomes relevant after a person has already lost the mental capacity to make particular decisions and there is no appropriate power of attorney covering what needs to be done. An application is then made to the Court of Protection, which decides whether a deputy should be appointed and what authority that deputy should have.

Understanding the difference can help families appreciate why planning ahead may be valuable and what options may remain available if capacity has already been lost.

This article explains the key differences between Lasting Powers of Attorney and deputyship in England and Wales.

What Is a Lasting Power of Attorney?

A Lasting Power of Attorney is a legal document that allows an individual to appoint one or more trusted people to make certain decisions on their behalf.

The person creating the LPA is called the donor.

The people appointed are called attorneys.

An LPA is made while the donor has the mental capacity required to create it.

This allows the donor to decide personally who should act for them and to make choices about how that authority should operate.

The LPA must be registered with the Office of the Public Guardian before it can be used.

What Are the Two Types of LPA?

There are two types of Lasting Power of Attorney in England and Wales:

• Property and financial affairs LPA
• Health and welfare LPA

A person can choose to make either one or both.

They cover different types of decisions.

What Does a Property and Financial Affairs LPA Cover?

A property and financial affairs LPA can give attorneys authority concerning the donor’s money and property.

Depending on the terms of the LPA, this may include matters such as:

• Managing bank or building society accounts;
• Paying bills;
• Collecting pensions or benefits;
• Managing investments;
• Dealing with property; and
• Handling other financial affairs.

Once registered, a property and financial affairs LPA can potentially be used while the donor still has capacity if the donor gives permission.

This can make it useful not only following loss of capacity but also where somebody remains mentally capable but needs practical assistance.

What Does a Health and Welfare LPA Cover?

A health and welfare LPA concerns decisions relating to personal welfare.

Depending on the authority given, this can include decisions about:

• Daily routine;
• Medical care;
• Where the donor should live; and
• Certain care arrangements.

A health and welfare LPA can only be used when the donor lacks capacity to make the particular decision themselves.

The donor can also decide whether their attorneys should have authority to make decisions concerning life-sustaining treatment.

This is an important choice that should be considered carefully when preparing the LPA.

What Is a Deputy?

A deputy is somebody appointed by the Court of Protection to make certain decisions for a person who lacks the mental capacity to make those decisions themselves.

The person who lacks capacity is often referred to as P in Court of Protection proceedings.

Deputyship may become necessary where important decisions need to be made but no suitable LPA or other authority is already in place.

Unlike an attorney, a deputy is not appointed personally by the individual through an LPA.

The Court decides whether the appointment should be made and what powers the deputy should have.

What Types of Deputyship Are There?

Deputyship can broadly concern:

• Property and financial affairs; or
• Personal welfare.

Property and financial affairs deputyships are more commonly encountered.

The Court of Protection is generally more cautious about appointing personal welfare deputies.

Rather than granting broad ongoing authority over welfare matters, the Court may in some situations prefer to make a decision concerning a specific issue.

Whether deputyship is appropriate depends on the person’s circumstances and the decisions that need to be made.

The Biggest Difference: When Are They Created?

Timing is one of the most important distinctions.

An LPA is created before the donor loses the mental capacity required to make it.

Deputyship generally becomes relevant after capacity has already been lost in relation to the decisions that need to be made.

This distinction can determine which option is available.

If somebody still has the required capacity, they may be able to choose their attorneys and create an LPA.

If they no longer have that capacity, relatives cannot simply create an LPA on their behalf.

A Court of Protection application may instead need to be considered.

Who Chooses the Decision-Maker?

With an LPA, the donor chooses.

They can decide who they trust to act as their attorney.

This might be:

• A spouse or civil partner;
• An adult child;
• Another relative;
• A trusted friend; or
• An appropriate professional.

Eligibility requirements apply, and financial attorneys must not be subject to certain bankruptcy or debt restrictions.

The important point is that the donor makes the choice while they have capacity.

With deputyship, the proposed deputy can apply, but the Court of Protection decides whether that person should be appointed.

Why Does Choosing Your Own Attorney Matter?

Allowing someone else to make important decisions about your finances, property, care or welfare involves considerable trust.

Different people may have very different ideas about who they would want to perform that role.

Someone might trust one child with financial matters but prefer another person to be involved in welfare decisions.

Another individual may prefer a professional to deal with complicated finances.

Creating LPAs gives the donor an opportunity to make those choices personally.

If no LPA exists and capacity is later lost, the individual may no longer be able to determine who should receive legal authority.

Can Family Members Automatically Take Over?

No.

This is a common misunderstanding.

Being somebody’s spouse, civil partner, parent or adult child does not automatically provide unrestricted legal authority to manage all of their affairs if they lose capacity.

For example, organisations dealing with a person’s individual financial accounts may require appropriate legal authority before allowing another person to manage them.

Families can therefore discover during a crisis that their relationship to the person does not, by itself, provide the authority they expected.

An LPA or Court of Protection order can provide a formal legal framework.

What If Someone Has Already Lost Capacity?

If a person no longer has the capacity required to make an LPA, it is generally too late for them to create one.

The family should then consider what legal authority is actually needed.

In some cases, an application to the Court of Protection for deputyship may be appropriate.

The Court will consider the application and evidence concerning the person’s capacity and circumstances.

The fact that somebody is a close relative does not guarantee that they will automatically be appointed.

The Court’s focus is on protecting the person who lacks capacity.

How Is Mental Capacity Assessed?

Mental capacity is decision-specific.

A person should be assumed to have capacity unless it is established that they lack it.

A person is not to be treated as unable to make a decision merely because they make a decision others consider unwise.

Before concluding that someone cannot make a decision, appropriate steps should also be taken to help them make it.

Broadly, the Mental Capacity Act considers whether a person can understand the relevant information, retain it sufficiently, use or weigh it as part of the decision-making process and communicate their decision.

Capacity can also fluctuate.

This means the assessment needs to focus on the particular decision and the relevant time.

Does a Diagnosis Automatically Mean Someone Lacks Capacity?

No.

A medical diagnosis does not automatically determine capacity for every decision.

Someone living with dementia, for example, may retain capacity to make some decisions.

Similarly, a person with a brain injury or other condition may have different levels of capacity depending on the nature and complexity of the decision.

The law focuses on the person’s ability to make the specific decision rather than simply applying a label based on diagnosis.

This distinction can be crucial when considering whether an LPA can still be made.

Who Can Be an Attorney?

An attorney must meet applicable eligibility requirements.

For an LPA, attorneys must generally be aged 18 or over.

Different considerations can apply depending on the type of LPA.

For a property and financial affairs LPA, restrictions can apply where a proposed attorney is bankrupt or subject to certain debt-relief arrangements.

The donor should also consider practical suitability.

Being legally eligible does not necessarily mean somebody is the right choice.

The attorney should be trustworthy, capable of handling the responsibility and willing to act.

Who Can Be a Deputy?

A deputy must generally be aged 18 or over.

Deputies are often family members or friends, although professionals can also be appointed in appropriate circumstances.

For property and financial affairs appointments, the Court may consider whether the proposed deputy has the skills and reliability needed to manage the person’s finances.

The Court can refuse to appoint a proposed deputy if it considers that appointment inappropriate.

Again, deputyship is a court appointment rather than an automatic entitlement arising from family relationship.

How Are Attorneys Supervised?

Attorneys have legal responsibilities and must follow the Mental Capacity Act 2005 and the Code of Practice.

They must act in accordance with the authority given by the LPA.

Where the donor lacks capacity to make a particular decision, attorneys must act in the donor’s best interests.

The Office of the Public Guardian can investigate concerns about the actions of an attorney.

Serious concerns may ultimately be referred to the Court of Protection.

An LPA therefore gives authority, but that authority is accompanied by duties and safeguards.

How Are Deputies Supervised?

Deputies are subject to supervision by the Office of the Public Guardian.

The level of supervision can depend on the circumstances.

Deputies may need to provide reports explaining decisions they have made and how they have managed the person’s affairs.

Property and financial affairs deputies may also be required to arrange a security bond.

The bond is designed to provide financial protection if the deputy mismanages the person’s finances in a way that causes loss.

These ongoing requirements are one of the practical differences between deputyship and an LPA.

Does a Deputy Have Unlimited Authority?

No.

A deputy can only act within the authority granted by the Court of Protection.

The deputyship order sets out what the deputy is permitted to do.

If a decision falls outside those powers, a further application to the Court may be required.

Deputies must also comply with the Mental Capacity Act and act in the person’s best interests.

Appointment as deputy therefore does not provide unrestricted control over another person’s life or property.

Does an Attorney Have Unlimited Authority?

No.

An attorney’s powers are determined by the type and terms of the LPA and the law.

The donor may also include certain instructions or preferences.

Attorneys must comply with their legal duties and cannot simply treat the donor’s assets as their own.

Restrictions also exist around particular transactions, including certain gifts.

Professional advice may be necessary where an attorney is uncertain whether a proposed action falls within their authority.

How Long Does an LPA Take?

An LPA cannot be used until it has been registered with the Office of the Public Guardian.

Registration therefore needs to be factored into planning.

It is usually preferable to create and register an LPA before it is urgently needed rather than waiting until a crisis develops.

If capacity is lost before an LPA has been made, the family cannot solve the problem simply by preparing one retrospectively.

That is when the more formal Court of Protection process may become necessary.

How Long Does Deputyship Take?

Deputyship requires a Court of Protection application.

The process involves forms, evidence and a judicial decision.

The time required can depend on the circumstances and whether the application is disputed or complicated.

Because the family may need authority urgently, discovering that deputyship is required can create practical difficulties.

In genuinely urgent situations, other Court of Protection procedures may potentially be available, but specialist advice should be obtained.

Advance planning through an LPA can avoid the need for a standard deputyship application in many circumstances.

Which Is More Expensive?

The cost structures are different.

Making an LPA involves registration fees payable to the Office of the Public Guardian, subject to any applicable fee reductions or exemptions, together with professional fees if a solicitor is instructed.

Deputyship involves a court application and may involve:

• Court fees;
• Assessment fees;
• Annual supervision fees;
• Security bond costs for financial deputies; and
• Legal or professional fees where applicable.

Costs vary according to the circumstances.

The key distinction is that deputyship is an ongoing court-supervised arrangement, whereas an LPA is created by the donor in advance and registered with the Office of the Public Guardian.

Can You Have More Than One Attorney?

Yes.

A donor can appoint more than one attorney.

They can specify how multiple attorneys should make decisions.

They may be appointed:

• Jointly, requiring them to make specified decisions together;
• Jointly and severally, allowing them to act together or independently; or
• In a combination for different decisions.

The donor can also appoint replacement attorneys in case an original attorney can no longer act.

These choices should be considered carefully because they affect how practical and resilient the LPA will be.

Can There Be More Than One Deputy?

The Court of Protection can appoint more than one deputy.

Where this happens, the Court order will specify how they are authorised to act.

The Court determines the arrangement rather than the person who lacks capacity setting it out personally.

Again, this highlights the difference between advance planning and court intervention after capacity has been lost.

Can Attorneys Make Health Decisions?

Only if there is an appropriate health and welfare LPA and the legal conditions for its use are satisfied.

A property and financial affairs LPA does not automatically give an attorney authority over healthcare.

Likewise, having authority over health and welfare does not automatically provide authority to manage financial affairs.

This is why many people consider making both types of LPA.

They address different areas of life.

Are Welfare Deputies Common?

The Court of Protection does not routinely appoint personal welfare deputies in the same way that property and financial affairs deputies may be appointed.

Government guidance explains that the Court will usually appoint a personal welfare deputy only in rare circumstances.

Often, welfare decisions can be made using the Mental Capacity Act’s best-interests framework without appointing a general welfare deputy.

Where there is disagreement about a significant welfare issue, the Court may instead be asked to decide the specific matter.

This is an important distinction from a health and welfare LPA, through which the donor can choose attorneys in advance.

What Is the Best-Interests Principle?

Both attorneys acting for somebody who lacks capacity and deputies appointed by the Court must operate within the Mental Capacity Act framework.

A central principle is that decisions made for a person who lacks capacity must be made in their best interests.

This does not simply mean choosing what the decision-maker personally thinks is best.

Relevant factors can include the person’s past and present wishes and feelings, beliefs and values, and the views of appropriate people involved in their welfare.

The person should also be involved in the decision as much as reasonably possible.

Can an LPA Be Cancelled?

A donor who still has mental capacity can generally revoke their LPA.

The correct formal process should be followed.

Other events can also affect an attorney’s ability to act.

For example, an attorney may choose to disclaim their appointment, and certain circumstances can terminate an appointment.

Where several attorneys are appointed, the effect on the overall LPA can depend on how they were appointed and whether replacement attorneys exist.

Legal advice can be useful before making changes.

Can a Deputy Be Removed?

Yes.

Because a deputy is appointed by the Court of Protection, changes to the appointment may require Court involvement.

The Court can remove a deputy where appropriate.

Concerns about a deputy’s conduct can also be investigated by the Office of the Public Guardian.

The system is designed to protect the person who lacks capacity rather than give the deputy permanent personal control.

What Happens When the Person Dies?

An LPA ends when the donor dies.

The attorney’s authority under the LPA does not continue for the purpose of administering the deceased person’s estate.

Likewise, deputyship authority ends when the person subject to the deputyship dies.

After death, responsibility for the estate passes to the appropriate personal representatives, such as executors under a will or administrators where there is no valid will.

This is why an LPA or deputyship should not be confused with a will.

They deal with decisions during lifetime, whereas a will primarily deals with the estate after death.

LPA vs Deputyship: Key Differences at a Glance

The simplest way to understand the distinction is to consider who makes the decision and when.

Lasting Power of Attorney

The individual makes the arrangement while they have capacity. They choose their attorney or attorneys and can express instructions and preferences.

Deputyship

The person already lacks capacity for the relevant decisions. Someone applies to the Court of Protection, and the Court decides whether to appoint a deputy and what powers that deputy should have.

Both involve significant legal responsibilities, but the route to obtaining authority is fundamentally different.

Why Planning Ahead Can Matter

Nobody can guarantee that they will always be able to manage every aspect of their affairs personally.

Illness, accidents or cognitive decline can occur unexpectedly.

An LPA provides an opportunity to decide in advance who should have authority if assistance is later required.

Without one, family members may have to seek Court of Protection authority after capacity has been lost.

Deputyship provides an essential safeguard where advance arrangements do not exist, but it involves a court process and ongoing supervision.

For many people, considering an LPA alongside their will can therefore be a sensible part of broader future planning.

Conclusion

Lasting Powers of Attorney and deputyship can both provide legal authority for somebody to make decisions on behalf of another person, but they arise in fundamentally different circumstances.

An LPA is about planning ahead.

While they still have the necessary mental capacity, the donor can choose who they trust, decide which type of authority to give them and put appropriate arrangements in place for the future.

Deputyship is generally about responding after capacity has been lost.

Where no appropriate LPA exists and decisions need to be made, an application may have to be made to the Court of Protection. The Court then determines whether a deputy should be appointed and what authority they should receive.

Deputies are also subject to Court-defined powers and ongoing supervision by the Office of the Public Guardian.

Neither arrangement gives another person unlimited control.

Attorneys and deputies have legal duties, must respect the limits of their authority and must follow the principles of the Mental Capacity Act when making decisions for somebody who lacks capacity.

The practical difference is therefore significant.

Making an LPA while capacity remains gives an individual the opportunity to make their own choice about who should act for them. Waiting until capacity has been lost may mean that the decision instead has to be made through the Court of Protection.

For anyone reviewing their will or wider estate planning, considering Lasting Powers of Attorney at the same time can help ensure that plans address not only what happens after death, but also who can assist if important decisions need to be made during their lifetime.

For many business owners, a business represents far more than an income.

It may have taken years or decades to build. It may employ staff, support a family, own valuable property or equipment, hold intellectual property and represent a substantial proportion of the owner’s overall wealth.

Yet business succession is often overlooked when people make a will or consider their wider estate planning.

What would happen to the business if the owner died unexpectedly?

Who would inherit the shares or business interest? Who would be able to make decisions? Would the intended successor actually be capable of taking control? Could the business continue operating while the estate is being administered? And what tax liabilities might arise?

These questions can be particularly important for sole traders, partners, shareholders in private companies and family-business owners.

Effective estate planning should therefore consider both the individual’s personal wishes and the practical future of the business.

This article explores some of the main estate-planning issues business owners in England and Wales should consider.

Why Is Estate Planning Different for Business Owners?

A person whose estate consists mainly of a home, savings and personal possessions may have relatively straightforward arrangements.

A business owner can face additional considerations.

The estate might contain:

• Shares in a private company;
• An interest in a partnership;
• A sole-trader business;
• Commercial property;
• Business equipment;
• Intellectual property;
• Money owed to or by the business;
• Director’s loan accounts;
• Insurance arrangements; or
• Other valuable commercial interests.

The business may also depend heavily on the owner’s knowledge, relationships and decision-making.

Estate planning therefore needs to consider not only who inherits the value, but also what happens to the business itself.

Why Does a Business Owner Need a Will?

A will allows a business owner to specify how assets passing under the will should be distributed after death.

Without a valid will, the estate will generally be distributed under the intestacy rules.

Those statutory rules may not reflect the owner’s intentions for their business.

For example, the person who becomes entitled to a share of the estate under intestacy may not be the individual the owner would have chosen to become involved with the business.

A properly prepared will can therefore form an important part of business succession planning.

Does a Will Automatically Control Every Business Asset?

Not necessarily.

This is an important distinction.

What happens to a business interest after death can depend on the legal structure of the business and any contractual arrangements already in place.

A shareholder in a limited company, a partner in a partnership and a sole trader do not necessarily have the same legal position.

Company articles, shareholders’ agreements, partnership agreements, option arrangements and other contracts may affect what happens following death.

Estate planning should therefore involve reviewing the business documents alongside the will.

A will should not be prepared in isolation from the legal structure of the business.

Estate Planning for Sole Traders

A sole trader and their business are not separate legal persons in the same way that a limited company and its shareholder are.

The business assets and liabilities therefore need to be considered as part of the individual’s affairs.

This can create practical questions after death.

Who will deal with customers?

What happens to employees?

Can ongoing contracts be completed?

What happens to stock, equipment and business premises?

Can the business be sold?

Does anybody have the knowledge required to continue operating it?

A sole trader should therefore consider both the destination of the business assets and what practical steps may be necessary immediately after death.

Estate Planning for Limited Company Owners

A limited company has its own legal identity.

The shareholder does not personally own each company asset simply because they own the company.

Instead, the shareholder owns shares in the company.

Those shares may form part of their estate.

This distinction is extremely important.

A will dealing with a shareholder’s estate is therefore generally concerned with the shares rather than directly distributing assets legally owned by the company.

The company’s articles and any shareholders’ agreement should also be reviewed to establish what happens to shares following a shareholder’s death.

What Happens to Company Shares When a Shareholder Dies?

The answer depends on the company’s arrangements.

The deceased shareholder’s interest may pass through their estate, but company documents can affect how the shares are dealt with.

For example, there may be provisions concerning:

• Transfers following death;
• Rights of surviving shareholders;
• Valuation of shares;
• Options to purchase;
• Restrictions on transfers; or
• Who can ultimately become registered as a shareholder.

This means a will leaving shares to a particular beneficiary should be checked against the company’s constitutional and contractual arrangements.

Otherwise, the business owner may create a will that does not operate as expected alongside the existing business documentation.

What About Partnerships?

Partnerships require similar attention.

A partnership agreement may contain provisions explaining what happens when one partner dies.

The agreement might address continuation of the business, payments to the deceased partner’s estate or arrangements concerning the deceased’s partnership interest.

If there is no suitable agreement, the legal consequences may be very different.

Business owners operating in partnership should therefore review the partnership agreement as part of estate planning rather than assuming their will alone determines what happens.

What Is Business Succession Planning?

Business succession planning concerns how ownership, control or management of a business should transition when an owner retires, loses capacity or dies.

For estate-planning purposes, important questions can include:

• Who should ultimately own the business?
• Who should manage it?
• Should family members inherit?
• Should existing owners acquire the deceased’s interest?
• Should the business be sold?
• How will the business be valued?
• How will beneficiaries who are not involved in the business be treated?
• Is there enough liquidity to meet tax or other estate liabilities?
• What happens if the intended successor does not want the business?

These questions are often easier to address while the owner is alive and actively involved in the business.

Ownership and Management Are Different

An important estate-planning distinction is the difference between owning a business and managing it.

The person a business owner wants to inherit shares may not be the person best suited to run the company.

For example, an owner might have three children but only one works in the family business.

Leaving company shares equally between all three may appear fair financially, but it could create difficulties if the children have very different interests or expectations.

Conversely, leaving the business entirely to the child working within it could create concerns about fairness to the others.

There is no universal answer.

Estate planning provides an opportunity to consider these issues before they become a source of family or commercial disagreement.

Should Children Automatically Inherit a Family Business?

Not necessarily.

Children may be intended beneficiaries, but that does not automatically mean each child should receive an identical business interest.

Some may want to continue the business.

Others may prefer to receive different assets.

Some may lack the experience needed to participate in management.

The business may also have other shareholders whose rights need to be considered.

A solicitor can help a business owner explore how different arrangements might operate rather than simply assuming equal division is always the most appropriate solution.

What If the Intended Beneficiary Is Under 18?

Additional planning may be required where intended beneficiaries are children.

A minor cannot necessarily take responsibility for business assets in the same way as an adult.

Trust arrangements may therefore become relevant.

Trusts can be useful estate-planning tools, but they involve legal, administrative and tax consequences.

The appropriate structure depends on the business, the beneficiaries and the owner’s objectives.

Professional legal and tax advice is particularly important before placing valuable business interests into trust arrangements.

Choosing Executors Carefully

Executors are responsible for administering the deceased person’s estate.

For a business owner, this can be a substantial responsibility.

Executors may need to deal with valuable shares, business interests, tax matters and commercial decisions while also administering the rest of the estate.

The owner should therefore consider whether the proposed executors have the appropriate skills and whether professional involvement may be useful.

The person who is an excellent choice to look after family matters is not automatically the person best equipped to deal with a complicated commercial estate.

More than one executor can be appointed, allowing different experience to be represented.

What Is Business Relief for Inheritance Tax?

Business Relief can reduce the value of certain qualifying business property for Inheritance Tax purposes.

However, it should never be assumed that every business automatically qualifies.

The type of business, nature of the asset, period of ownership and other statutory conditions can affect eligibility.

Current HMRC rules provide different rates of relief depending on the property involved.

Following changes effective from 6 April 2026, the amount of qualifying agricultural and business property eligible for the 100% rate of relief is also subject to a new allowance.

This makes up-to-date advice particularly important for business owners reviewing older estate plans.

How Does Business Relief Work From 6 April 2026?

For deaths and relevant transfers from 6 April 2026, the 100% rate of Agricultural Relief and Business Relief is subject to a combined £2.5 million allowance for qualifying property.

Qualifying property above that allowance generally receives relief at 50%, subject to the applicable rules.

An unused 100% relief allowance can also potentially be transferred from a deceased spouse or civil partner.

This means a surviving spouse or civil partner may potentially have up to £5 million of the combined 100% relief allowance where the transfer conditions are satisfied.

These are significant changes.

Business owners who completed estate planning under the previous rules should consider whether their arrangements still achieve the intended result.

Which Business Assets Can Qualify for Business Relief?

Subject to the detailed statutory conditions, HMRC guidance identifies qualifying categories that can include:

• A business or interest in a business;
• Shares in an unlisted company;
• Certain controlling shareholdings;
• Certain land, buildings or machinery used in a qualifying business; and
• Other qualifying business property within the legislation.

Different categories may receive different rates of relief.

Ownership periods and the nature of the business also matter.

Eligibility should therefore be assessed individually rather than assumed from the fact that an asset is described as “business property”.

Does a Business Have to Be Owned for a Minimum Period?

Generally, Business Relief requires the deceased to have owned the qualifying business or asset for at least two years before death, although detailed rules and exceptions can apply.

This can matter where a business has recently been acquired or restructured.

Transactions undertaken during the owner’s lifetime may also affect the eventual tax treatment.

Professional advice should therefore be obtained before making major structural changes purely for estate-planning reasons.

Do Investment Businesses Qualify?

Not all businesses qualify for Business Relief.

HMRC guidance excludes businesses that mainly deal in securities, stocks or shares, land or buildings, or making or holding investments.

This can create difficult questions where a business carries out a mixture of trading and investment activities.

The tax treatment can depend on the actual nature of the business rather than simply its company name or legal structure.

Owners should therefore avoid assuming that private-company shares automatically qualify for relief.

What About AIM Shares?

The rules for certain shares changed from 6 April 2026.

Shares admitted to trading on markets that do not meet HMRC’s definition of “listed”, such as the Alternative Investment Market (AIM), can qualify for Business Relief at 50% where the relevant conditions are met.

This is different from the treatment that applied under the earlier rules.

Anyone whose estate planning relies substantially on AIM investments should therefore ensure that their tax advice reflects the current regime.

Why Should Business Owners Review Older Wills?

Changes in tax law are one reason.

Changes in the business itself are another.

A will made ten years ago may refer to a company that has since been sold, restructured or substantially increased in value.

The owner’s family circumstances may also have changed.

Potential reasons for review include:

• Business growth;
• Incorporation of a former sole-trader business;
• New shareholders;
• Acquisition or sale of businesses;
• Changes in partnership arrangements;
• Marriage or divorce;
• Children becoming adults;
• Changes in intended successors;
• Changes in tax law; or
• Significant changes in the value of the estate.

Estate planning should evolve alongside the business.

Should Business Owners Consider Lifetime Gifts?

Some business owners consider transferring assets during their lifetime rather than waiting until death.

Lifetime gifting can potentially form part of succession planning, but it should not be undertaken casually.

Tax consequences can arise, including potential Inheritance Tax and Capital Gains Tax implications.

Giving away shares may also mean giving away voting rights, dividend rights or economic control.

Once transferred, the owner may not be able simply to reverse the decision.

The commercial, family and tax consequences should therefore be considered together.

What About Capital Gains Tax?

Capital Gains Tax can become relevant when business assets or shares are sold or transferred during lifetime.

Various business-related reliefs may potentially apply depending on the transaction and circumstances.

For example, current HMRC guidance includes Business Asset Disposal Relief, Business Asset Rollover Relief and Gift Hold-Over Relief among reliefs that may apply to qualifying transactions.

Eligibility conditions differ substantially.

Estate planning involving lifetime transfers should therefore be coordinated with appropriate tax advice.

A strategy that appears attractive from an Inheritance Tax perspective may have consequences elsewhere.

Is Life Insurance Relevant?

Life insurance can sometimes form part of business and estate planning.

Depending on the structure, insurance may potentially provide funds following death that can help family members, business owners or the estate deal with financial consequences.

Businesses may also use appropriately structured insurance arrangements in connection with shareholder or partnership succession planning.

The policy ownership, beneficiaries and any related business agreements need to work together.

Specialist financial and legal advice should therefore be obtained rather than purchasing insurance without considering how it interacts with the succession plan.

What Is a Cross-Option Agreement?

In some privately owned businesses, shareholders or partners use arrangements designed to give surviving owners an opportunity to acquire the deceased person’s interest while allowing the estate to receive value for it.

Cross-option arrangements can form part of succession planning, often alongside appropriate insurance.

They are legally and tax-sensitive.

The agreement, company documentation, insurance and will need to be coordinated carefully.

Business owners considering such arrangements should obtain specialist advice because poorly aligned documents can produce unintended results.

What Happens If There Is No Succession Plan?

The consequences vary depending on the business structure.

Potential problems can include uncertainty over ownership, delays in decision-making, disagreements between beneficiaries and existing owners, difficulty obtaining an appropriate valuation and disruption to business operations.

A business heavily dependent on one owner may be particularly vulnerable.

Customers, suppliers, employees and lenders may all require decisions while the estate is still being administered.

Planning cannot remove every difficulty following an unexpected death, but it can provide a clearer framework for those left to deal with the business.

What If Nobody in the Family Wants the Business?

Passing the business to family is not the only option.

An owner may decide that the most appropriate long-term plan is for the business or their interest in it to be sold.

Potential purchasers might include:

• Existing shareholders;
• Business partners;
• Management;
• Employees;
• Competitors; or
• An external purchaser.

If sale is the intended outcome, planning in advance can still be valuable.

The owner can consider valuation, documentation, management continuity and how the sale proceeds should ultimately benefit their family.

What If the Business Has More Than One Owner?

Estate planning becomes particularly important where ownership is shared.

The wishes of one shareholder cannot be considered in isolation from the rights of the others.

Questions may include:

• Can shares pass freely to beneficiaries?
• Do existing shareholders have rights to buy them?
• How will the shares be valued?
• Is there insurance funding?
• Who can exercise voting rights while the estate is administered?
• What do the articles say?
• What does the shareholders’ agreement say?

These issues should ideally be addressed consistently across the company’s legal documents.

What About Business Debts?

Estate planning should consider liabilities as well as assets.

The consequences of business debts depend partly on the business structure and the nature of any personal liability or guarantees.

A limited company generally has its own liabilities, but directors or shareholders may sometimes have given personal guarantees.

Sole traders may have business liabilities that are personal liabilities.

Executors need to understand these obligations before distributing an estate.

Business owners should therefore keep clear and accessible records concerning loans, guarantees and other financial commitments.

Why Are Good Business Records Important?

After a business owner dies, executors may need to identify and value the business interest.

Poor records can make this considerably more difficult.

Useful information can include:

• Company and partnership documents;
• Accounts;
• Share certificates and registers;
• Details of advisers;
• Insurance policies;
• Loan agreements;
• Personal guarantees;
• Property information;
• Important contracts; and
• Succession arrangements.

Sensitive information should be stored securely.

The aim is not to give family members unrestricted access to confidential information during the owner’s lifetime, but to ensure that appropriate people can locate what they need if the owner dies or becomes unable to act.

What About Digital Business Assets?

Modern businesses can depend heavily on digital systems.

Important assets and information may include websites, domain names, cloud accounts, intellectual property, online marketplaces, software systems and digital records.

Access arrangements need to be considered carefully.

Executors should not be expected to discover after death that essential business information exists only inside accounts nobody can access.

At the same time, passwords and security credentials should not simply be written into a publicly accessible will.

Business continuity and digital-access planning should therefore form part of the broader succession discussion.

Why Should Business Owners Consider an LPA?

Estate planning should not focus exclusively on death.

A business owner could become unable to make certain decisions because of illness or injury while remaining alive.

A Lasting Power of Attorney for property and financial affairs can allow chosen attorneys to deal with specified financial matters within the authority granted.

However, business owners need to consider carefully whether their attorneys are appropriate for both personal and business affairs.

The company’s constitution, partnership agreement and other governance arrangements may also affect what another person can do.

Specialist advice can help ensure that incapacity planning and business governance work together.

Should Personal and Business Attorneys Be Different?

Potentially.

The person somebody trusts to manage household finances may not have the commercial experience required to deal with a business.

Depending on the circumstances and the way an LPA is structured, a business owner may wish to consider different arrangements for different categories of decisions.

This can be a technically complicated area.

Professional advice is important to ensure that multiple arrangements do not conflict and remain legally workable.

What About Key Person Dependency?

Some businesses depend heavily on one individual.

That person may hold important client relationships, technical knowledge or commercial authority.

Their death or incapacity could therefore affect the value and operation of the business itself.

Succession planning should consider how the business would continue without them.

This might involve developing management responsibilities, documenting key processes and ensuring that important commercial relationships are not known only to one person.

Estate planning and business-continuity planning often overlap.

Estate Planning Is Not Just About Tax

Tax is important, particularly for valuable businesses.

But reducing tax should not become the only objective.

A technically tax-efficient arrangement may still be a poor succession plan if it creates conflict, leaves the wrong person controlling the business or prevents the company from operating effectively.

A good plan should consider:

• The owner’s wishes;
• Family needs;
• Business continuity;
• Management;
• Ownership;
• Liquidity;
• Tax;
• Legal documentation; and
• Practical implementation.

These issues need to work together.

Questions Business Owners Should Ask

Business owners reviewing their estate plans may want to consider:

• What would happen to my business if I died tomorrow?
• Does my current will deal appropriately with my business interest?
• Do my company or partnership documents agree with my will?
• Who should inherit the economic value?
• Who should control or manage the business?
• Does my intended successor actually want the business?
• How would other family members be treated?
• Could Inheritance Tax become payable?
• Does the business qualify for Business Relief under the current rules?
• Is there sufficient cash to meet tax and estate liabilities?
• What happens if I lose capacity rather than die?
• Are important business records accessible to the appropriate people?
• When was my succession plan last reviewed?

If some of these questions do not have clear answers, a broader estate-planning review may be worthwhile.

Conclusion

Estate planning for a business owner involves considerably more than deciding who should receive money after death.

The business itself may represent one of the most valuable assets in the estate and may also provide employment, income and financial security for other people.

A comprehensive plan should therefore consider what happens to both the ownership and operation of the business.

A will is an important starting point, but it should be coordinated with the legal structure of the business. Company articles, shareholders’ agreements, partnership agreements, insurance arrangements and other commercial documents may all affect what happens following death.

Tax planning is also important.

From 6 April 2026, significant changes apply to Business Relief. Qualifying agricultural and business property can receive the 100% rate within a combined £2.5 million allowance, with qualifying property above that amount generally receiving 50% relief. Unused allowance can potentially transfer between spouses and civil partners.

However, Business Relief should never simply be assumed. Eligibility depends on the nature of the business, the asset and other statutory requirements.

Business owners should also plan for incapacity as well as death. Lasting Powers of Attorney and appropriate business-continuity arrangements can help address what happens if an owner remains alive but becomes unable to make important decisions personally.

Most importantly, estate planning should be reviewed as the business changes.

A plan created when a company was small may no longer be appropriate after years of growth, new shareholders, changing family circumstances or changes to tax law.

By coordinating personal estate planning with business succession, owners can provide clearer instructions, reduce uncertainty and give both their family and their business a stronger framework for dealing with the future.

Losing a loved one is difficult, and dealing with their estate can feel overwhelming. One of the most common questions families ask is whether probate is still required when the deceased has left a valid will. The simple answer is that having a will does not automatically mean probate can be avoided. Whether probate is needed depends on the type and value of the assets involved.

What Is Probate?

Probate is the legal process of confirming that a will is valid and giving the executor the authority to administer the deceased’s estate. Once probate has been granted, the executor can collect assets, settle debts, and distribute the remaining estate according to the instructions in the will.

When Is Probate Required?

In many cases, probate is necessary if the deceased owned property in their sole name or had significant savings and investments. Banks and financial institutions often require a Grant of Probate before releasing funds above a certain value, although the threshold varies between organisations.

Probate is commonly required when:

• The deceased owned a home solely in their name.
• They held substantial bank accounts or investments.
• Financial institutions request proof of authority before releasing assets.
• Shares or other valuable investments need to be transferred or sold.

When Might Probate Not Be Needed?

There are situations where probate may not be necessary. For example, if assets were owned jointly with another person as joint tenants, ownership usually passes automatically to the surviving owner. Likewise, some banks may release smaller balances without requiring probate.

Probate may not be needed if:

• Assets pass automatically to a surviving joint owner.
• The estate is relatively small.
• All assets have named beneficiaries, such as certain life insurance policies or pension benefits.

Each estate is unique, so professional advice can help determine whether probate is required.

The Executor’s Responsibilities

If probate is needed, the executor named in the will is responsible for:

• Identifying and valuing the estate.
• Applying for the Grant of Probate.
• Paying outstanding debts, taxes, and expenses.
• Distributing assets to beneficiaries.
• Keeping accurate records throughout the administration process.

Executors have legal duties and may be personally responsible if mistakes are made, making professional guidance particularly valuable for complex estates.

How Long Does Probate Take?

The length of the probate process depends on the complexity of the estate. Straightforward estates may be completed within several months, while estates involving property, tax issues, or disputes can take considerably longer.

Proper preparation, accurate documentation, and prompt communication with financial institutions can help reduce delays.

Final Thoughts

Having a valid will makes estate administration much clearer, but it does not automatically eliminate the need for probate. The requirement depends on the assets involved and how they are owned. Understanding when probate is necessary helps executors fulfil their legal responsibilities and ensures beneficiaries receive their inheritance as efficiently as possible. If you are unsure whether probate is required, seeking professional legal advice can provide clarity and help avoid unnecessary delays.