Wills Probate and Trusts
Risks of Making Own Lasting Powers of Attorney
In today’s environment we are all looking at areas of our lives where we can save money, whether that is our weekly shop at the supermarket or shopping around for cheaper utility providers. In some cases, people are also looking at the possibility of carrying out some of their own legal work where traditionally they would have appointed a lawyer to act on their behalf.
It is worth remembering that lawyers have undertaken many years of extensive training and, in some cases, built up many years of experience to provide full advice, taking into account the risks and benefits involved.
Although it is possible to make your own Lasting Powers of Attorney, the risks of doing so without having an experienced lawyer instructed to create the Lasting Power of Attorney on your behalf can be very serious.
One of the risks is if the Lasting Powers of Attorney are rejected by the Office of the Public Guardian at the point they are registered. There are thousands of Lasting Powers of Attorney rejected at this stage each year and if this is the case the Office of the Public Guardian will retain the registration fee submitted and require a further registration fee when the corrected application is made. Whilst having to incur a second registration is frustrating, the matter could be made worse if the person whose Lasting Power of Attorney is sought to be registered no longer has capacity. If capacity has been lost then a Lasting Power of Attorney cannot be made and the alternative to this (known as a Deputyship Order) is a very expensive, often running into the thousands of pounds, and time consuming process.
Another common situation is where a Lasting Power of Attorney has been created without legal assistance and is successfully registered at the Office of the Public Guardian. Some time later when the Lasting Power of Attorney is needed to be used there may be errors within the document or some incomplete sections which means banks and other organisations will not accept the document. Again, if the person in question no longer has capacity then they cannot make a new Lasting Power of Attorney. As stated previously, the only option available in this situation is the expensive and time consuming Deputyship Order. The Deputyship Order takes a number of months to be obtained which can cause difficulties for the family ensuring that bills continue to be paid which could cause cash flow problems for themselves.
Whilst certain areas of Lasting Powers of Attorney are relatively simple to complete, there are other areas of the form that are less simple. Indeed, there are some areas where it is advised that legal advice should be taken.
Another role of a solicitor when acting for a client making Lasting Powers of Attorney is to be alert for any potential undue influence or even fraud. A lawyer will attend upon the client and discuss the Lasting Powers of Attorney in detail to ensure they have understood the principles of Lasting Powers of Attorney, any implications and that it is something they are wanting to do themselves rather than a forceful third party exerting undue influence on them to do something they are not comfortable with. Sadly, there are cases where Lasting Powers of Attorney have been fraudulently made (such as being prepared and signed by someone with the person in question having no knowledge that it had ever been made so that the “attorneys” can then access bank accounts). With a lawyer instructed then we can safeguard against this since all of our clients are identified to ensure they are the person they are claiming to be.
As with most cost saving exercises, making your own Lasting Power of Attorney could result in being a false economy. The costs of rectifying errors, whether that be making a new Lasting Power of Attorney or the situation arising where a Deputyship Order is required, are unnecessary and expensive.
Our costs for dealing with Lasting Powers of Attorney (LPA) are as follows:-
One LPA will be £350 plus VAT
Two LPAs will be £500 plus VAT
Any additional LPAs will be charged at £100 plus VAT.
Therefore, if a husband and wife decide to create both Property and Financial Affairs LPAs and Health and Welfare LPA’s (a total of four documents) then our total charges will be £700 plus VAT.
The document must be registered with the Office of the Public Guardian for which there is an £82 court fee per document. It may be possible to apply for an exemption of this court fee if you are in receipt of certain benefits and this will be discussed during your initial meeting
To discuss Lasting Powers of Attorney, please contact one of our lawyers in the Wills, Lasting Powers of Attorney and Probate Department:-
Or telephone the office 01775 722261 and ask to speak with one of the team.
Lasting Powers of Attorney Refund
The Office of the Public Guardian have announced that those who applied to register Lasting Powers of Attorney between 1st April 2013 and 31st March 2017 may be entitled to a refund of registration fees.
To check whether you are eligible for a refund and for details of how to claim visit:-
Claiming against the Estate of a Deceased Person
If a family member dies and either as a result of the deceased’s Will or the intestacy rules (which govern who gets what when a person dies without leaving a valid Will) you do not get an inheritance or an inheritance that you consider to be insufficient, you might still be able to make a claim/further claim against the estate of that deceased person under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”).
The Grounds for the Claim
There is just one ground upon which you can make such a claim namely:-
“That the disposition of the deceased’s estate effected by his Will or the law relating to intestacy or the combination of his Will and that law, is not such as to make reasonable financial provision for the applicant.”
The Act does provide some guidance on “reasonable financial provision”.
Reasonable Financial Provision
Expectations of reasonable financial provision will depend upon the type of applicant.
Unless at the date of death there was in force a separation order and the separation was continuing, the standard of reasonable financial provision shall be:-
“Such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance.”
If there is a separation order in force and separation is continuing, then the standard will be:-
“Such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.”
When the deceased and the survivor were engaged in matrimonial proceedings that have not resulted in an order for ancillary relief at the date of death (i.e. financial issues were outstanding) and an application is made for reasonable provision within 12 months of that death, the Court will in effect entirely ignore the fact that there was a divorce.
This will not apply to a separation order situation unless, at the date of death, the order was in force and the separation was continuing.
- Civil Partner
Similar provisions apply in respect of these applicants as per spouses.
- Other Applicants
The standard here is the same as that for a spouse/civil partner with a separation order, namely, such provisions as would be reasonable in all the circumstances of the case for the applicant to receive for their maintenance.
Categories of possible applicants here include former spouse/civil partner who has remained un-married/not in a civil partnership, a co-habitee, a person who prior to the date of the death of the deceased was wholly or partly maintained by the deceased (and not necessarily a family member), a child of the deceased and any other child treated by the deceased as a child of the family in relation to a marriage/civil partnership.
Factors to be considered
In determining an application, the Court must consider factors which may vary according to the status of the applicant. There are some common factors as follows:-
(i) The applicant’s future financial needs and resources (including earning capacity).
(ii) The future financial needs and resources (including earning capacity) of any other applicant.
(iii) The future financial needs and resources of any beneficiary (including earning capacity).
(iv) The deceased’s obligations and responsibilities towards any applicant or beneficiary.
(v) The size and nature of the deceased’s net estate.
(vi) The physical and/or mental condition of the applicant or any beneficiary.
(vii) Any other matter the Court considers relevant (including the conduct of any party).
If you wish to consider making a claim against an estate, or you are a beneficiary or executor in effect facing a claim from another party then please contact Daven Nagen on 01775 722261 or email email@example.com or call in or visit our offices at 23 New Road Spalding Lincolnshire PE11 1DH.
If you want advice in making your Will in order to reduce or eliminate the risk of such claims being made against your estate then please either contact one the Wills, Probate & Trusts Team:
Jane Mawer on 01775 722261 or email firstname.lastname@example.org
Faye Blair on 01775 722261 or email email@example.com
Jamie Dobbs on 01775 722261 or email firstname.lastname@example.org or visit our offices at 23 New Road Spalding Lincolnshire PE11 1DH.
A Guide to NHS Continuing Healthcare
When a friend or relative goes into full time care, whether this is due to accident, illness or a disability, this is a stressful time for them and for those around them. For the most part the priority is making sure that the individual is receiving the care that they need however the financial issue of how they shall pay for their care usually causes background worry for everyone concerned.
There have been many newspaper articles recently pointing out that, in certain cases, the NHS should have been responsible for paying for a person’s care and that they have not done so. This had led some to recover costs back from the NHS where they should have been funded and were not.
Many enquiries have therefore come to us from individuals asking whether this can be achieved for their friend or relative and what the criteria actually is and what is meant by NHS Continuing Healthcare.
1. What is NHS Continuing Healthcare?
NHS continuing healthcare is the name given to a package of care which is funded solely by the NHS for individuals outside of hospital who have ongoing health care needs. It can be received in any setting outside of hospital such as a care home or the person’s own home.
If you are found to qualify for NHS continuing healthcare then the NHS will pay for your healthcare regardless of your income or your savings. It is not therefore means tested. If you in a care home then this will include your care home fees including board and accommodation.
2. Who is eligible for NHS Continuing Healthcare?
Anyone over the age of 18 who is determined to have a ‘primary health need’. It is not dependent on a particular disease, diagnosis or condition. A primary health need is assessed by looking at all of an individuals care needs in respect of their nature, complexity, intensity and unpredictability.
3. The Assessment Process.
The assessment process should automatically be triggered if a person is discharged from a hospital into a care home. Other triggers for the assessment should be if there is a deterioration of a person who is in a care home in order that their needs have changed significantly. If the assessment is not automatically triggered within the system it is possible for the individual to remain un-assessed even if they should qualify for the NHS Continuing Healthcare. If the family are not aware that an assessment should have taken place then no challenge will be made to the position and the individual will continue to pay for their own care.
The first step is the Checklist Tool which is a screening tool completed by health or social care staff to judge whether it is appropriate to undertake a full assessment. If this checklist indicates that a full assessment should be carried out then a team consisting of the district nurse, social worker, care home member and any other professionals involved in the care shall meet and complete a ‘Decision Support Tool’.
This looks at eleven different types of need that an individual may have to determine whether they have a ‘primary health need’. For example, mobility, nutrition, cognition and behaviour. If a primary health need is establish then NHS continuing care should be awarded.
This should be reviewed after three months and then again annually. Further assessments can be called for if it is thought that the needs have changed.
4. What if I am not eligible for NHS Continuing Healthcare?
If the individual does not qualify for the full NHS Continuing Healthcare but it is agreed that they have some needs, the NHS may still pay part of a package of support leaving the individual to cover the remaining costs.
5. What If I am not happy with the outcome?
If you feel that a full assessment should have taken place but did not, or if you disagree with the outcome of the assessment it is possible to request an independent review of the decision through the clinical commissioning group local to the individual.
6. How can Maples Solicitors assist in this process?
If you are unsure whether your friend or relative has been assessed for NHS continuing healthcare and what the outcome of that assessment was, we can assist you in uncovering this information from the care home or doctor involved.
We can advise you whether your friend or relative does have a primary healthcare need based on the criteria from a review of their records. If we believe that they do have a primary healthcare need we can assist you through the process of calling for an assessment to take place or for the appeal of an assessment to take place.
If you want advice on this subject please contact one of our Private Client Team as follows:- On 01775 722261, or email email@example.com or firstname.lastname@example.org or email@example.com
What are the Risks of DIY Probate?
When a family member or friend passes away there are many steps that need to be taken by Personal Representatives in order to administer their estate. These may be practical arrangements such as re-homing any pets or clearing the property but could also involve legal matters such determining who are the beneficiaries, obtaining a Grant of Probate (or Letters of Administration if no Will has been made, collectively known as a Grant of Representation) and finalising the tax affairs.
Whilst it is possible to administer an estate and obtain a Grant of Representation without instructing a lawyer, there are considerable risks involved. The role of a Personal Representative, whether that be an Executor or an Administrator, is a very important role and many duties and responsibilities are placed upon them. A Personal Representative must tread very carefully when administering an estate to ensure that they are not breaking the law and not putting themselves at risk.
If a Personal Representative makes a mistake during the administration, no matter how innocent the mistake may be, then the Personal Representative could be personally liable. For example, if the beneficiaries of a Will are unclear or there is no Will then the correct beneficiaries must be determined. If the incorrect beneficiaries are paid then the Personal Representative could be personally liable to correct beneficiaries. Equally, if the beneficiaries have been paid and, at a later date, a further invoice is received then the Personal Representative again could be personally liable.
A Personal Representative may also be personally liable for something they have not done, which may be something they did not know was even necessary.
If there is any inclination that an estate may be insolvent (and it must be borne in mind that this may not be obvious at first as details of credit cards and loans, for example, may only materialise later during the administration) then Personal Representatives must take great care. In an insolvent estate there is an order of priority of who should be paid first and if this order is not followed then creditors may pursue the Personal Representatives for the outstanding debt.
Personal Representatives who are administering the estate themselves may not be aware of the provisions of the Inheritance (Provision for Family and Dependants) Act 1975 whereby certain categories of people are allowed to bring a claim against the estate if reasonable financial provision has not been made for them. A Personal Representative may proceed to administer and distribute an estate without realising that someone could potentially bring a claim against the estate and if such a claim is made and is successful, if the estate has been distributed then again the Personal Representative could find that they are personally liable.
If an estate is taxable then it is the Personal Representative’s responsibility to calculate the inheritance tax payable to H M Revenue and Customs if no lawyers are instructed on their behalf. Such a calculation can become complicated, particularly where certain exemptions and reliefs may be applied, but without detailed knowledge of these exemptions and reliefs a Personal Representative could pay more tax than necessary. On the other hand, if tax is incorrectly calculated and too little tax is paid then financial penalties could be imposed for which the Personal Representative could be liable.
Many Personal Representatives are unaware that their responsibility also extends to ensuring the deceased’s income tax affairs are finalised to the date of death and for the period of the administration of the estate. This involves researching the deceased’s income and potentially completing income tax returns. Again, any mistakes made in this regard could result in penalties imposed by H M Revenue and Customs and, again the Personal Representative may be personally liable.
It is worth keeping in mind that it may be possible for certain strategies to be exercised to reduce any tax due, whether that be inheritance tax or possibly capital gains tax, or even considering the possible future tax implications of surviving family members.
This article points out just some of the risks involved for administering an estate without legal assistance. To summarise, there are many situations where a Personal Representative may find themselves personally liable or there are areas where having a lawyer to assist may either save the estate money at this stage or in the future. It is therefore likely that administering an estate yourself rather than instructing a lawyer is a false economy that could become very costly indeed.
It is always worth speaking with one of our lawyers who can provide a quote for our involvement in the administration of an estate. On many occasions, clients have advised that they thought our costs would be much more than the quote provided having read articles online of legal fees being many thousands of pounds. It is only the particularly complex estates that involve the higher legal fees.
To discuss the administration of an estate, obtaining a Grant of Representation or any other matter relating to the affairs of a deceased person, please contact one of our lawyers in the Wills, Lasting Powers of Attorney and Probate Department:-
Or telephone the office 01775 722261 and ask to speak with one of the team.
Inheritance Tax & the new Residence Nil Rate Band
Paying Inheritance Tax is a common concern for those who are considering estate planning and preparing their Will. It would be hard to find anyone who would relish in the idea of their estate paying tax after they pass away on assets that have already attracted tax during their lifetime. Recent developments in inheritance tax legislation have therefore been eagerly awaited especially in response to political promises of a £1million pound inheritance tax exempt allowance.
The reality is not as straightforward as had been hoped and unfortunately will not be beneficial for everyone. It is therefore important to know how you are personally affected by the change and what you should do next to ensure that your inheritance tax burden is minimised as much as is possible.
Each individual has what is known as a ‘nil rate band’ of £325,000 which does not attract inheritance tax. There are certain reliefs available for businesses and agricultural property however, generally speaking, assets over and above this threshold will attract inheritance tax after death at a rate of 40%.
In the case of married couples or those in a civil partnership, if the first to pass away leaves everything to the other, it is possible for the surviving spouse to claim the unused nil rate band and so effectively ‘double-up’ to a £650,000 nil rate band. This is known as the ‘transferable nil rate band’. There is no transferable nil rate band between partners or cohabitees regardless of the length of the relationship. If you are in a long term relationship, whether or not your individual assets exceed £325,000, it would be wise to seek advice regarding your Wills and estate planning options that may be available to you.
For deaths that occur from the 6th April 2017 the estates of those that qualify will also be able to claim an additional nil rate band known as the ‘residence nil rate band’. For the current tax year 2017/2018 this additional allowance is £100,000 per person. This is set to rise annually up to 2020/2021 when it will reach £175,000 per person.
In the same way as the original nil rate band, it is transferable between spouses and civil partners making it possible to have an additional £350,000 of residence nil rate band to add to the original £650,000 mentioned above which brings a married couple to the promised £1million pound nil rate band to be exempt from inheritance tax. Again please note that this only applies to married couples and those in a civil partnership and so individuals who are not married will not be able to reach a £1million pound exemption.
As previously stated not everyone will qualify for the additional residence nil rate band. To qualify you must have a residence or an interest in a residence that is being ‘closely inherited’. Closely inherited means that you are passing that residence to a lineal descendent meaning to your child or grandchild. Child has been widely defined and includes step-children, foster children, adopted children, natural children who have been adopted by a third party and also the spouse of a child if that child has predeceased you (your son or daughter-in-law).
No other family connection will suffice as a lineal descendent. If you do not have children or grandchildren then it will not be possible to claim for the additional residence nil rate band.
It is important to note that if you have left your estate as a whole between your children, grandchildren and other beneficiaries such as nieces, nephews and/or charitable organisations this will prevent your estate from being able to claim for the residence nil rate band. The whole property must be inherited by a lineal descendent and it is not enough that they are one of the beneficiaries. If you have a Will that leaves your estate between several beneficiaries who are not your lineal descendants, it would be advisable to review your Will and ensure that it is the most tax efficient Will now available to you.
The lineal descendent also has to inherit the property outright or at least have an immediate interest in the property after death. This means that if the property falls into a discretionary trust, even those that are for the benefit of the children, the additional residence nil rate band will not be available to the estate. There are certain types of settlement that would still allow your estate to qualify for the residence nil rate band. If you presently have a trust in your Will and have assets over and above the £325,000 threshold then do please seek advice as to whether your Will remains the most tax efficient way forward in light of the new legislation.
To qualify for the full residential nil rate band your net estate also has to be less than £2million pounds in total. If you have an estate worth more than two million pounds then you lose £1 for every £2 that you are over that threshold. In this part of Lincolnshire it is not too common for an estate to be worth more than this threshold but for those with property in London it is certainly a clear issue and another possible bar for being able to claim the additional relief.
The new legislation prompted many to worry about what would happen if they sold their large family home and downsized or, sold their home altogether and moved into residential care or other accommodation. Complex ‘downsizing’ legislation has therefore been produced to calculate a percentage of the residence nil rate band available on death where a downsizing has occurred or where a property has been sold. This is easier to look at on a case by case basis rather than within the context of this article however a simple example can be seen below:
‘Mabel, who is a widow, sells her bungalow for £250,000 in 2020 and moves into residential care. Presuming that she left her estate to her lineal descendants, as the value exceeded the residence nil rate band available, she would be treated as having an entitlement of 100% of the available residence nil rate band on death being the full £175,000.’
Essentially if you have owned a property and treated it as your residence at any point prior to death then it will be possible for the representatives of your estate to seek advice regarding the downsizing provisions and see if it is still possible to claim for the residence nil rate band for your estate. It will also be possible for them to seek advice concerning a previously owned property if you are now in a property of a lesser value however it will never be possible to claim for more than the maximum residence nil rate band available in any given tax year regardless of the value of the property.
If you have an estate worth more than £325,000 and especially if you own a residence within your estate, it would be wise to seek advice regarding your Will to ensure that you have made the correct provisions to also qualify for the residence nil rate band and thus reduce your liability to inheritance tax.
Our fees for making a single Will are £135 plus VAT or £220 plus VAT to make mirror Wills (usually for couples). Unless you have exceptional circumstances meaning an individual higher fee will be quoted, this fee will include an in depth discussion as to your inheritance tax position and effective estate planning options available to you. The expense at this stage could potentially save your estate a large inheritance tax liability at a later date.
To discuss Wills, please contact one of our lawyers in the Wills and Probate Department:-
Faye Blair- firstname.lastname@example.org
Jamie Dobbs- email@example.com
Jane Mawer- firstname.lastname@example.org
Or telephone the office 01775 722261 and ask to speak with one of the team.