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:-
Maples Solicitors are proud to announce that they have now joined to become Dementia Friends which is an Alzheimer’s Society initiative.
The private client department of Maples Solicitors prepare Wills and Lasting Powers of Attorney on a regular basis and this often involves dealing with clients who are suffering from dementia. The private client team pride themselves on spending as much time as is necessary to assist all of their clients, but those suffering from dementia often require additional assistance and time to ensure that they have fully understood the legal documentation that they are creating. The private client department are regularly complimented on the way they deal with such clients, whether this be explaining things to them in a clear and uncomplicated manner, spending time with them or putting them at ease.
It is a misconception that anyone suffering from dementia cannot make a Will or Lasting Power of Attorney. Only if someone lacks sufficient mental capacity are they unable to make such a document. It is therefore vitally important upon any diagnosis of dementia that legal advice is taken as soon as possible to make sure that your affairs are in order so that it is easier for your family to deal with your affairs if you are unable to do so yourself.
To become Dementia Friends, Maples Solicitors have pledged to develop their understanding of dementia and continue assisting clients suffering from dementia with their legal affairs in a respectful, friendly and efficient way that is not daunting making the process as easy as possible.
Will Information Sheet
Will Information Sheet
The Will Information Sheet sets out the information that you will be asked at your first meeting with a lawyer to prepare your Will. It is not compulsory that this is completed but it may help you to make decisions on what you wish to include in your Will before the meeting.
This simply asks for your personal information.
This asks for your partner’s details. It is important that we have an understanding of your relationship status as you should make ‘reasonable provision’ for any long term partner or spouse. In the case of married individuals, if you are separated but not yet divorced, please make sure that we are aware of this fact as this will affect our advice to you.
- Contact details
These are requested for our use only and will not appear in your Will.
- Your Estate
This asks for you to give an approximate value of each of your assets as they stand at the current time and also those of your spouse/partner. It also asks for any liabilities such as a mortgage/loan/credit cards or any other debts that you may have.
This is requested in order that we can review the inheritance tax position of your estate. Each person has a ‘nil rate band’ of £325,000 meaning that you do not pay inheritance tax on the first £325,000 of your estate. Anything above this figure will pay tax at 40% (unless other relief’s or the additional Residence Nil Rate Band available). With effective tax planning married couples can utilise both of their individual nil rate bands and not pay inheritance tax on the first £650,000 of their estate or more if the Residence Nil Rate Band can be applied.
Knowing the value of your estate is also useful for potential residential care home planning. There is much controversy over the payment of residential care home fees and many do not realise that the time you make your Will is the most effective time to plan ahead and protect assets from being used to pay for those fees.
- Your Executors
These are the people that will have to administer your estate after you pass away. They collect in your assets, pay any debts that you may have including the funeral and distribute your assets as you set out in your Will. You can appoint up to four Executors.
If you have children under the age of 18 then you should appoint guardians to care for them in the instance that both you and your spouse/partner have passed away.
- Funeral Wishes
It is not compulsory that you set out your funeral wishes in your Will however if you have a preference over cremation or burial or any detailed requests we recommend listing them.
- Legacies- non charitable.
A legacy is a specific sum of money or item that you may wish to leave to a friend or family member. For example, ‘I give £500 and my pocket watch to my Godson Joe Bloggs absolutely’.
- Legacies- charitable
You may also wish to leave a donation to charity. Charitable donations are exempt from inheritance tax and so can be a useful tool in reducing the amount of tax to pay if you have a taxable estate.
- Residuary Estate
After your debts have been paid and the specific legacies under point 8 and 9 above have been paid, the remainder of your estate is known as your ‘Residuary Estate’. This is usually the bulk of your estate.
If you have a spouse/partner then the usual option taken is to leave the estate to the survivor of you. You can then make provision in your Wills that after both of you have passed away the estate passes down to your children or other family/friends depending on your circumstances.
This section of the form gives you space to consider who you would like to benefit from the residue of your estate and in what proportions.
What Is a Will
WHAT IS A WILL?
A will is a formal document setting out your wishes as to what is to happen to your assets after you die and appointing people called Executors who put those wishes into effect
WHY MAKE A WILL?
Virtually every adult should make a will for the following reasons: –
- You state who is to receive what when you die. If you do not then there are rules as to who will inherit your assets and those people may not be the people you would choose
- It is particularly important if you and your partner are not married, if you have step children, if you have no children, if you do not have close relatives, if you no longer live with your spouse/partner, or if you do have close relatives you do not get on with
- You can make gifts to friends and/or charities
- You can state when beneficiaries (especially children) are to inherit. If you do not then they would be able to take assets on reaching eighteen years which many consider too young
- You appoint the Executors
- You can appoint Guardians for your infant children
- You can make sure dependants such as disabled children are looked after financially
- You can arrange the gifts in a tax efficient way.
- You can make sure that those the law says you must provide for (people who are financially dependent on you) are provided for thus avoiding expensive litigation when you die
- If appropriate you can provide for assets to be held in trust so that for example someone has the income during his/her lifetime but stipulating who will get the assets when he/she dies.
- You can state whether you wish to be buried or cremated
YOU STATE WHO IS TO RECEIVE WHAT WHEN YOU DIE
If you die without a will the law imposes rules (called the Intestacy Rules) stating how much each of your relatives will receive. Everything you have is turned into cash and that is divided out between those relatives. Depending on the value of the estate , a surviving spouse or civil partner and children are normally the main beneficiaries.
By making a will you can leave what you like to whom you like. For example
- If you and your partner are not married, your partner will receive nothing under the Intestacy Rules
- You can leave gifts to friends and/or relatives who would not receive anything under the Intestacy Rules
- You can leave money to Charities if you wish
- You can leave specific assets to specific people. This can be very important if you own a house or land or an interest in a business.
- It is up to you to decide how much goes to whom. You can leave more to your spouse/partner than he/she would get under the Intestacy Rules; you can give different children different shares if that is what you want
- You can leave assets to be held on trust. This can become complicated but can be useful if you have an incapacitated child; feel a beneficiary will waste what he/she receives or sometimes for tax reasons.
- You can provide that a beneficiary will not receive what you wish to give them until a specified age. Under the Intestacy Rules the age is eighteen. Many people feel that is far too young to receive substantial sums of money.
- If you wish someone to receive a specific article – such as a piece of jewellery from you – you can do so.
- You can provide that an asset will go to one beneficiary but require him/her to pay a sum of money to another beneficiary to even matters up
The only restriction is that the law requires you to make reasonable provision for your dependants. In the vast majority of cases that is exactly what is done but sometimes that does not fit with people’s wishes. This is a complicated area of law which, in the vast majority of wills, is not an issue but we can guide you through this if necessary.
When making a will you need to decide if you want to leave a specific item to a beneficiary; a specific sum of money (called a legacy) or a share in the whole (called a residuary gift). It is most common to want to leave legacies to friends and/or Charities and residuary gifts to spouse/partner and or children. Many grandparents want to leave legacies to grandchildren.
In many cases much of the above may not be relevant to you. You do not have to finalise your wishes before you come to see us. Part of the process is to discuss matters with you so that you can decide what suits you. You may however wish to use the basic information sheet to help you decide what you want to do. Writing down a few ideas often helps but if you do not wish to do so that is no problem.
EXECUTORS, TRUSTEES and GUARDIANS
The “Executors” are the people you appoint in your will to make sure that your wishes are followed. They collect in your assets, pay any debts you may have and distribute your assets as you stipulate.
The “Trustees” are the people who will look after any assets you leave in trust on behalf of the beneficiaries and are often – but not always – the same people as you appoint as your Executors.
It is perfectly acceptable to appoint as Executors people who will also be beneficiaries. For example, it is common to appoint your spouse/partner and children as Executors and divide your assets between them.
In some cases where matters are more complicated or children are too young you may appoint friends or other relatives.
It is vital that the persons you appoint are people you trust and know to be honest. It is also sensible if they are younger than you!
If you have no one suitable to appoint, do not worry as we can, if necessary, provide someone to do it for you.
The “Guardians” are the people you appoint to look after the welfare of any infant child you may leave if both you and your spouse/partner dies. If you do not then that responsibility will pass to the local Social Services who will try their best but may not do what you would want to have been done.
In many ways this is the most important role under any will. A Guardian should be someone you know very well, someone you would be happy to leave your children with and who will bring up your children as you would have done yourself. If you have strong religious beliefs you may want to choose someone with the same views.
Many people immediately think of using their parents as Guardians but do remember they are older than you and have been through having teenagers once before!
A Guardian can also be an Executor.
USE OF TRUSTS
In the vast majority of cases Trusts are not relevant. However in some situations they may be desirable or even necessary. Examples could include:-
- If the person you want to benefit cannot look after his/her own money. This may be incapacitated children or even a spouse/partner suffering from dementia
- If you would leave young children if you died suddenly
- If you are not sure who should receive what. For example you run a business but it is too early to know which of your children will come into that business
- If you want someone to have the income but make sure the capital on his/her death goes to whom you wish it to go to. This is sometimes the case with second marriages
- If there are tax reasons for using trusts
In all of these cases the assets are transferred to the names of the Trustees and they manage them in the interests of the beneficiaries.
The income may go to one person as of right or the Trustees may have a discretion as to how much they pay to whom. Similarly the capital may go to a named individual(s) or the Trustees may have discretion as to how much they pay to whom.
Trustees to have to abide by many rules which is why the choice of Trustees is so important. If you want them to have discretion as to who will get what you really have to be very careful in that choice.
This does mean that there is an administrative cost – such as filing tax returns and keeping accounts – to using trust funds which is the main reason why they are not suitable for most people.
Use of a trust fund is a big step and needs to be thought about very carefully. If you think your circumstances are right for the use of a trust fund we will discuss the situation in detail with you; explain in more detail what a trust entails, the different types of trust and help you come to the best decision for you and your beneficiaries.
There are four important points to remember:-
- Tax planning is not the main purpose of a will – that is to provide for your family – it can however affect the way you do things
- You do not have to be rich to make tax savings
- Whenever you do tax planning you must look at all relevant taxes
- Remember tax laws do change. Wills that have an element of tax planning in them need reviewing frequently to make sure they are in line with changes in taxation.
The main tax that is relevant when making a will is Inheritance Tax. Like all taxes, it is complicated but many people have insufficient assets to come into a charge to Inheritance Tax. The first £325,000.00 (known as the nil rate band) for each person is free of tax and a married couple or civil partners can now provide that any part of the nil rate band unused on the first death is transferred to the surviving spouse/partner.
From April 2017, an additional nil rate band was introduced known as the “Residence Nil Rate Band” which can apply where a main residence is being left to a direct descendent. Please see our separate article, “Inheritance Tax and the new Residence Nil Rate Band” for further details.
Additionally some assets such as farmland and many business assets are either given 100% or 50% relief.
The rules are complicated and it is easy to fall into some well known traps so if you think Inheritance Tax may apply to you please contact us to discuss it. There are frequently things that can be done – not necessarily in your will itself – to improve the situation.
Income Tax, Capital Gains Tax, Stamp Duties and sometimes even Corporation Tax may be relevant – especially if you are thinking of using trusts and you will need expert help which we can provide to understand what is involved and what the best course of action for you will be. If you have an accountant we will if you wish – and we would recommend it – work closely with him/her to make sure what is done is best overall.
We will also make sure that we do not let tax planning get in the way of making sensible provision for your family.
HOW DO I MAKE A WILL?
Making a will does not have to be complicated or expensive. You simply need to telephone us on 01775 722261 and make an appointment. It may assist if you complete a Wills Information Sheet. Please click on this link for details.
If you are married or have a partner in most cases we recommend that you both make wills at the same time.
To arrange an appointment simply ring us on 01775 722261 or email firstname.lastname@example.org or email@example.com or firstname.lastname@example.org or write to us at 23 New Road, Spalding, Lincolnshire PE11 1DH
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.