Wills Probate and Trusts
Free Wills Month in October
Maples are pleased to announce that they are taking part in Free Wills Month throughout October. If you are aged 55 or over you can make your Will for free and have the opportunity to help one or more of the sponsoring charities in the process. Appointments are limited in number and are allocated on a first come first served basis.
For further details please contact a member of our Wills and Probate Department:-
Or telephone the office 01775 722261 and ask to speak with one of the team.
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.
Wills During the Coronavirus Pandemic
We appreciate that many people will be considering making a Will and Lasting Powers of Attorney now, more than ever, in light of the Coronavirus pandemic. At Maples Solicitors we will work around those who are self-isolating and we will continue to follow Government guidance by keeping our distance from others. This does mean that we can now offer “Through your Window Wills”. We will take instructions for your Wills and Lasting Powers of Attorney via the telephone, video calls or e-mail and we can attend at your home and arrange the signing and witnessing of the documents through your window.
Our costs for dealing with Wills are as follows:-
Our Simple Wills service offers a comprehensive service to ensure that your wishes are carried out in the event of your death.
If you are married or have a partner and want to make mirror Wills our cost are £360 (inclusive of VAT).
This fee is made up of:
- Legal fee £300
- VAT on legal fees £60
If you want to make a single Will our costs are £210 (inclusive of VAT).
This fee is made up of:
- Legal fee £175
- VAT on legal fees £35
The Simple Will Service includes:
- Appointment of Executors
- Provision for your funeral wishes
- Appointment of Guardians for minor children
- Provision for specific legacies including money and personal items to named beneficiaries
- Basic Inheritance Tax advice
- Advice with regard to the distribution of your residuary estate to your intended beneficiaries
- Draft Will with full explanation in plain English sent to you in the post
- Answering any queries you have on the draft Will
- Face to face meeting at our offices to sign the Will with a Solicitor or Legal Executive
- Registration with Certainty the National Wills Register
- Secure lifetime storage
This service does not include:
- Complex inheritance tax advice and planning
- Assets that are situated abroad
- Property protection advice
- Advice with regard to disinheriting family members
If it becomes apparent additional work will be needed we will inform you of the additional work required and confirm the additional costs.
If you would like to make a “Through your Window Will” or Lasting Powers of Attorney please telephone the office on 01775 722261 or e-mail firstname.lastname@example.org.
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- email@example.com
Jamie Dobbs- firstname.lastname@example.org
Jane Mawer- email@example.com
Or telephone the office 01775 722261 and ask to speak with one of the team.
Grounds for Challenging a Will
One of the advantages of making a Will is ensuring that the maker’s (“the Testator”) loved ones/family are provided for and to avoid family squabbles. Notwithstanding this, the provisions in a Will can be challenged or the contents contested by relatives or interested parties because for example they feel that it does not reflect the wishes of the Testator or that they believe that they have not got their fair share. It appears (sadly) that the number of challenges to wills is on the increase and that there are a significant number of grounds upon which someone can challenge a Will.
Grounds for Challenging a Will
- Lack of Capacity
For a valid Will to be made, the Testator must be of sound mind. The Testator should:-
- have understood that they are making a Will and the effects of that Will;
- know the nature and value of their estate;
- understand the consequences of including and excluding certain people under the Will;
- not be suffering from any “disorder of the mind” which may influence their views.
For example it is common to challenge wills on the grounds of lack of capacity if the Testator suffered from a disease like Alzheimer’s or Dementia.
- Not properly executed
For a valid Will to be made it must meet all the following requirements:-
- it must be in writing, signed by the Testator or somebody in their presence, who is being directed to do that by the Testator;
- it must appear that the Testator intended by their signature to give effect to the Will;
- the Testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the same time; and
- each witness must either attest and sign the Will or acknowledge the signature in the presence of the Testator, but not necessarily in the presence of any other witness.
There is a legal presumption that a will has been validly executed unless there is evidence to the contrary of either one or more of (a) to (d) above.
- Undue influence
If the Testator has been coerced into making a Will on particular terms, then it may be invalid. The Testator’s freewill must have been overcome by someone else. If the Testator was elderly or vulnerable then this may provide more scope for arguing about the validity of the Will upon the grounds of undue influence.
- Fraudulent or Forged Wills
For example someone may forge the Testator’s signature on a document, purporting to leave everything to that person.
- Lack of Knowledge and Approval
A Testator must have knowledge of and approval of the contents of the Will. For example if a person helped prepare a Will and included a substantial gift to himself, then if the Testator is not aware of that then the Will could be contested.
- The Will makes no or insufficient provision for a family member/dependent
Certain classes of people, usually close family members, may be able to challenge a Will if it does not make reasonable financial provision for them. For example if a spouse is left with little or nothing from a Will but the Will includes say a large gift to a Charity, then a spouse might argue that he or she has not been left enough money from the estate to live off.
- The Testator made promises
A claim may arise if the Testator promised someone that they would inherit when the Testator died and that person acted upon this and to his detriment. For example if that party worked for the Testator without payment or carried out significant work to the Testator’s property.
A Will may be rectified when it fails to carry out the Testator’s intentions either because of a clerical error or because of a failure on the part of the person preparing the Will to understand the Testator’s instructions. A party can apply to rectify the Will and/or alternatively make a claim in negligence against the solicitor who prepared it.
- Another Will found
Each successive new Will normally cancels the previous Will automatically, but often people forget where the last Will is kept so that a “wrong” last Will may be found initially. Subsequently when the correct last will is found, this can give grounds obviously for contesting the older Will.
- Will invalidated
Sometimes certain events invalid a Will, e.g. divorce. Foreign Wills can often cancel a UK Will and vice versa.
- Will destroyed, could it still be valid?
Sometimes a Will can be destroyed, but this does not necessarily mean that it is invalidated. There have been occasions where a will has been unintentionally destroyed or thrown away, but remains valid as there was never an intention by the Testator to revoke. In such circumstances it is possible to prove the Will by way of a copy.
So how do I contest a Will?
If you want advice about contesting a Will, or defending a claim that has been made against a Will, then please contact Daven Naghen on 01775 722261 or email firstname.lastname@example.org or visit our offices or arrange an appointment to see Dav 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 email@example.com
Faye Blair on 01775 722261 or email firstname.lastname@example.org
Jamie Dobbs on 01775 722261 or email email@example.com or visit our offices at 23 New Road Spalding Lincolnshire PE11 1DH.