Category Archives: Estate Planning

Starting a family

Why you should make a Will when you start a family…

When you’re expecting a baby there’s a long list of things to do to get ready. Making a Will isn’t usually at the top of the list, and for many people it isn’t even something they think about at all. But in reality, it’s an important job that could seriously impact your family’s future.

Nobody wants to think about a situation in which children lose their parents, but covering every eventuality means that once you have children you can relax and enjoy life safe in the knowledge that you have drawn up plans for their future care should the worst happen.

When parents don’t make a Will

If anything happens to you and you haven’t made a Will, then those left behind will not necessarily know what your wishes were with regard to your children’s upbringing.

The authorities will have the right to place your children with the guardian they decide upon, and there could be a delay in finalising this, which could be even more unsettling for all involved.

Failing to plan and talk things over with family members could also cause disagreement between them.

As far as financial provision is concerned, this will be governed by the Rules of Intestacy, and you will have lost the opportunity to appoint your choice of trustees to look after the money you leave and decide how it should best be spent.

Writing your Will when you’re a parent

Writing a Will allows you to clearly set out who you would like to care for your children should you die. You can also make financial provision for your children, choosing the age at which you would like them to inherit any money you leave them. For example, you may decide that you don’t want them to be given a large sum of money at 18, and that you would prefer them to inherit it when they are older and more settled in life.

You will appoint trustees to administer the money until that time and leave instructions for how they can use it for your children as they grow up, for example a private education or money towards the purchase of a home.

The trustees will also be able to pay money to your children’s guardian, for everyday expenditure such as food, clothing and school expenses.

Appointing trustees

Choose people whom you trust implicitly and whom you believe are capable of carrying out your wishes as well as looking after the money that you leave. This fund will eventually be inherited by your children so it is important that it is properly managed.

If you would like to talk to one of our expert wills and trusts lawyers, call legalmatters on 01243 216900 or email us at info@legalmatters.co.uk.

Finding our posts interesting? Why not sign up to receive legalchatters, our regular news, views and update service straight to your mailbox. Or Follow Us on FaceBook.

Client Testimonial

Client Testimonial…

When you lose someone you love it is always a difficult time. Having to deal with the paperwork involved in administering an estate after a death – and when you’re grieving – can be extremely upsetting.

That’s why at legalmatters we will always try to make the process as pain-free as possible for you – and why we’re always delighted to hear from a client when we’ve helped a family or an individual through such a stressful time. So thank you Jane for your kind words.

“Thank you and Megan, and all in the office staff for making my journey – sorting my dad’s estate through yourself and legalmatters – a professional, reassuring and stress free time. It’s been a pleasure and I would highly recommend you to friends.”

Choosing someone to act as your attorney

Signing a Lasting Power of Attorney (LPA) document authorises someone to deal with matters on your behalf, should you become unable to do so yourself.

There are two types of LPAs, one covering property and financial affairs and one covering health and welfare.

It is possible to ask your attorney to deal with your property and financial matters while you are still capable, for example if you have limited mobility and find it difficult to get to your bank. Your health and welfare matters can only be dealt with by your attorney once you can no longer make decisions for yourself.

You can choose to sign only one type of LPA if you wish.

Who should you appoint?

You should choose someone whom you trust implicitly, as they will potentially have a great deal of say over your life and financial affairs.

Your attorney needs to be aged 18 or over and in respect of a financial and property LPA you cannot appoint anyone who has been declared bankrupt or who is subject to a debt relief order.

If you do not feel that you have a family member or close friend who can act on your behalf, it is possible to appoint a professional such as a solicitor, who will charge a fee to deal with your affairs and who will be under a duty to act in your best interests.

Once your LPA is registered with the Office of the Public Guardian (OPG), your attorney will be supervised by them. This could include a visit to you or contact to ensure your attorney is acting effectively. After the first year it is likely that the supervision will be fairly minimal.

What your attorney needs to know

You should ensure that your attorney is happy to be appointed, and that they know what responsibilities this will entail. For example, they will be required to submit an annual report to the OPG explaining the reasoning behind the decisions they have made on your behalf and why they believe the decisions were in your best interests, as well as submitting financial details such as bank statements.

Give your attorney as much information up front as you can, letting them know what you will expect them to do for you and the scope of what they will be dealing with.

Let them think it through carefully and without pressure so that they can make the right decision. If they do choose to act, then discuss your wishes with them so that when the time comes, they will know how you would like them to proceed.

It is a good idea to have a second-choice attorney in place, in case your first-choice is unable or unwilling to act when you finally need them to.

If you would like to discuss appointing an attorney, call legalmatters on 01243 216900 or email us at info@legalmatters.co.uk.

Finding our posts interesting? Why not sign up to receive legalchatters, our regular news, views and update service straight to your mailbox. Or Follow Us on FaceBook.

Life interest in your Will

Leaving someone a life interest in your Will

When making a Will, it is possible to leave someone a life interest in your property or assets.

It may be more prudent in certain circumstances to leave your spouse or partner a life interest in your assets rather than giving them outright ownership.

In particular this can be advantageous if you want to make sure any children you have receive something in the future.

Possible problems in leaving assets outright

Married couples often make duplicate Wills, leaving everything to each other and then after both their deaths, to their children.

The problem with this is that after the death of the first parent, unforeseen circumstances could mean that either the Will becomes invalid or the money in the estate is spent before it can be inherited.

For example, if the remaining parent remarries, any previous Will automatically becomes invalid. If the parent fails to make a new Will, their assets will pass under the Rules of Intestacy, with the majority of the estate going to the new spouse, who is then free to leave it elsewhere in their own Will. Even if they intend to honour an intention to pass the money to the children, it may be spent, for example on care home fees.

Similarly, if a new Will is written, any previous Will is superseded. This could mean that after the death of the first parent, the remaining parent is free to leave the whole estate elsewhere and not to the children.

Finally, if the remaining parent moves to a care home, then assets in the estate can be swallowed up in fees. At present the local authority will only step in to assist with payments when the patient’s total worth falls below £23,250.

How a life interest works

By leaving someone a life interest, you can be sure that ultimately your assets will pass to those you choose.

For example, you can leave your spouse a life interest in your home, which means they can live there as long as they want, but once they have died or left, your share will pass in accordance with your Will and cannot be given elsewhere.

This also prevents your share being used to pay their care home fees.

Similarly you can leave a life interest in other assets, including cash and shares. This allows your spouse access to money and interest for living expenses, but means that the money remaining after their death will go to your children, or whoever you have chosen.

If you would like to discuss whether leaving a life interest in your Will might be suitable for you, call legalmatters on 01243 216900 or email us at info@legalmatters.co.uk.

Finding our posts interesting? Why not sign up to receive legalchatters, our regular news, views and update service straight to your mailbox. Or Follow Us on FaceBook.

Are you owed a refund after setting up a Lasting Power of Attorney?

Nearly two million people are due a refund after the Office of the Public Guardian (OPG) overcharged for registering a Lasting Power of Attorney (LPA).

An LPA gives someone the right to manage your affairs after you become incapable of doing so. You can execute an LPA in respect of your health and welfare and/or in respect of your property and financial affairs.

The Ministry of Justice has announced that the OPG overcharged those who registered an LPA between 1 April 2013 and 31 March 2017, and that they are entitled to a refund.

So far only 200,000 claims have been made out of 1.8 million who are qualified to do so.

Making a claim

Either a donor or an attorney can make the claim. They will need to supply the donor’s bank details, as the payment will be made to the donor. A copy of the LPA should also be included.

The claim form can be accessed via the government information page https://www.gov.uk/power-of-attorney-refund. In some cases, including where the donor does not have a bank account or the applicant is a court-appointed deputy, the claim will need to be made by phone by calling the helpline on 0300 456 0300, option 6. The deadline for claims is 1 February 2021.

How much will be refunded?

The amount of the refund will depend on when the LPA was registered, as fees paid differed over the time period in question.

Date Fee Paid                      Refund
April to Sept 2013                 £54
Oct 2013 to March 2014      £34
April 2014 to March 2015    £37
April 2015 to March 2016    £38
April 2016 to March 2017    £45

A claim can be made for each LPA registered. Interest will also be paid at a rate of 0.5 percent.

Who needs an LPA?

It is advisable for everyone to take the time to make an LPA, so that in the event they become unable to manage their affairs, either through illness, injury or incapacity, their chosen attorney can step in to help.

In the absence of an LPA, application would need to be made to the court, which could be an expensive and time-consuming process. This could also mean that you might not have your first choice of attorney acting for you.

You can execute an LPA, then keep it until such time as it is needed, at which point it is registered with the OPG.

If you would like to talk to one of our expert lawyers about drawing up an LPA, call legalmatters on 01243 216900 or email us at info@legalmatters.co.uk.

Finding our posts interesting? Why not sign up to receive legalchatters, our regular news, views and update service straight to your mailbox. Or Follow Us on FaceBook.

Going on holiday

Making a Will before you go on holiday

While no-one really wants another task to do before they go away on holiday, it really is a good idea to make sure you have a valid Will in place before you travel.

Taking a trip will always involve a small risk, and many people take out insurance just in case something happens. Think of a Will in the same way; it probably won’t be needed, but once you have it in place, you can forget about it and enjoy your break.

Increased risk level on holiday

When we’re away, we often try activities we wouldn’t at home, and they may well be things we’re not proficient at. While there is rarely a problem, very occasionally things can go wrong.

Some countries have lower road safety levels than the UK, meaning a higher risk of an accident while travelling. Some places face regular natural disasters such as flooding, subsidence, earthquakes or tsunamis.

There are diseases in some countries that can on occasion be fatal or a risk of injury or poisoning from the local wildlife, and medical care might be of a lower standard than you would wish.

While these are not common occurrences, insurance companies understand that the risks do exist. It makes sense to put a Will in place, in the same way that we might arrange an insurance policy.

Why you should make sure you have a Will

If you die intestate, ie. without a valid Will in place, your money and assets such as your home and personal possessions will pass under the Rules of Intestacy, to particular members of your family. You may have wished to leave your money elsewhere, or in different proportions, but without a Will, no-one will be able to carry out your wishes.

You can also include requests about your funeral, what should happen if you die overseas and details regarding care of any minor children if you have them. This can cover not only who you would like to become their legal guardian, but also financial provision.

It is always a good idea to have a Will in place, even if you aren’t planning any travelling. This applies to every age group, not just older generations. If you have any assets, then it makes sense to make your wishes clear, so that they can go to those you choose.

While no-one enjoys thinking about writing their Will, once it is in place there is usually a sense of relief, knowing that your wishes have been recorded and will be carried out should anything happen to you. In the meantime you are free to relax and enjoy life, including any trips you have planned.

If you would like to talk to someone about writing your Will, speak to one of our team at legalmatters on 01243 216900 or email us at info@legalmatters.co.uk.

Finding our posts interesting? Why not sign up to receive legalchatters, our regular news, views and update service straight to your mailbox. Or Follow Us on FaceBook.

Are there any restrictions as to who can make a Will?

There are certain restrictions as to who can make a Will, including age and capacity.

In England and Wales you generally need to be 18 before you can make a Will. It is always advisable to make a Will once you reach that age, even if you feel you might not have anything much to leave.

You can include your wishes for social media accounts as well as leave gifts of items other than cash which you may want friends or family members to receive from you.

If you own your own home or are involved in a business you should make sure you have a Will.

Those under 18 may be allowed to make a Will if they are in the armed forces on active duty or they are sailors at sea. A law introduced during the First World War allows young people in these circumstances to make a Privileged Will allowing them to leave their possessions as they wish.

Other restrictions on making a Will

You are required to have ‘testamentary capacity’ to make a Will. This means that you must fully understand the nature of the document and its effect.

You also need to know the extent of the property you own.

Finally, you need to be able to understand the moral obligations you should consider, for example whether you have any dependents who are more in need of financial help than others, through illness or incapacity or because they themselves have dependents.

When should you make a Will?

You should make a Will straight away if you don’t already have one, and plan to review it regularly, particularly as life changes.

You may want to have your Will rewritten on the arrival of children or grandchildren or if you get divorced.

If you marry, any Will you have will become invalid and you will need a new one or your estate would pass under the Rules of Intestacy.

If you own a business or are in a partnership you should have a Will drawn up taking this into account.

If you are co-habiting then making a Will ensures that you can leave that person something if you wish. If you die without making provision for them, it is possible they will receive nothing.

A recent survey found that three-quarters of adults questioned did not have a Will. Whatever your circumstances, if you clearly set out your wishes it not only means that the administration process will be easier for people, but you can be assured that your beneficiaries will receive exactly what you want them to have.

To speak to someone about writing your Will, call one of our specialist team at legalmatters, on 01243 216900 or email us at info@legalmatters.co.uk.

Finding our posts interesting? Why not sign up to receive legalchatters, our regular news, views and update service straight to your mailbox. Or Follow Us on FaceBook.

Partner's assets

A quarter of people don’t have details of their partner’s assets…

Research carried out by Direct Line Group has found that 25% of people who are married or co-habiting don’t know where their partner’s money is.

This could cause problems in the event that someone dies. If the extent and whereabouts of their assets isn’t known, the administration of their estate could be delayed for a long period of time while searches and enquiries are made. In the worst case scenario, money could simply be lost.

32% of those questioned did not have any details of their partner’s workplace pension and 28% had not shared details of their savings account.

Women share fewer details than men and were found to be five times more likely to keep secret savings.

A study by GoCompare found that on average secret savings amounted to just over £10,000, with a fifth having more than £25,000.

What happens when details of assets aren’t shared

An estimated £2 billion exists in unclaimed bank accounts, with many billions more believed to be in lost pensions, life assurance policies and other investments such as shares.

If assets can’t easily be located after death, there is a risk they will be lost. Executors will need to conduct searches to try and locate what they can, but unless there is a clear list of all holdings, some may well be missed.

How to ensure assets can be located after death

If you don’t want to give your partner details of your financial affairs you can draw up a list of your assets to be placed with your Will and stored by your solicitor at their offices.

This should include the names and account numbers of your holdings and you should aim to regularly update the list.

If you have bank or building society accounts that aren’t used, then remember to check them from time to time. Banks may archive the account after a number of years if you don’t respond to enquiries by them and an unattended account may fall prey to hackers.

As banks and building societies merge or are taken over, it is easy for accounts to be forgotten. Old pension accounts can also be overlooked as people move on to new jobs.

Make an inventory of your financial affairs and ensure that you are in control of your money and aware of its location.

Check that your Will is up to date and reflects your wishes. Let those close to you know where your Will is stored or keep a letter from your solicitor confirming that they have the Will with your personal papers.

To find out how we can help, call one of our experts at legalmatters. Call us on 01243 216900 or email us at info@legalmatters.co.uk.

Finding our posts interesting? Why not sign up to receive legalchatters, our regular news, views and update service straight to your mailbox. Or Follow Us on FaceBook.

Protecting your children

Will my stepchildren inherit my assets when I remarry?

A second marriage can be very complicated when it comes to making sure your family inherit exactly what you want them to have.

The first thing to know is that any previous Will you have made becomes invalid when you marry, unless it was specifically made in contemplation of the marriage.

If you and/or your new spouse have children, you both need to sit down and work out what assets you have and who you would like them to be ultimately passed on to.

If you don’t make a Will

When someone dies without making a Will, their estate passes under the Intestacy Rules, which give all personal possessions plus the first £250,000 to the spouse. Any sum over and above £250,000 will be shared, with 50% going to the spouse and 50% shared between any children.

Stepchildren are not included at all. This can mean that if your spouse inherits your estate and then dies without writing a Will, your children would not be entitled to anything.

If you do make a Will

If you make a Will leaving everything to your spouse, with the understanding that they will then leave your children your assets when they die, you have no guarantee that this will actually happen.

As time passes, they may change their mind and decide to leave their estate elsewhere, or they may fall into debt or need funds for care home costs.

The way to avoid this is to have a Will drawn up so that your spouse has a lifetime interest in your property and assets, but on their death the capital passes to your children.

What to do about your Will when you remarry

Because any previous Will becomes void on marriage, you should sit down with your new spouse and decide who you want to inherit. Its particularly important when family situations are complicated, for example with different sets of children and stepchildren, to get expert help in drawing up a Will that includes the necessary trusts.

It is also important that Wills are unambiguous to avoid disputes after someone dies. If possible, you should talk things through with any children and stepchildren so that they understand what your wishes are and what will happen to your estate after you die.

A specialist Trusts and Probate lawyer from legalmatters will be able to put your requirements into a valid Will and this should avoid any arguments arising at a later date.

If writing – or updating – your Will is one of your 2019 New Year’s Resolutions, don’t put it off. Speak to one of our expert lawyers at legalmatters on 01243 216900 or email us at info@legalmatters.co.uk.

Finding our posts interesting? Why not sign up to receive legalchatters, our regular news, views and update service straight to your mailbox. Or Follow Us on FaceBook.

Living with someone – they could be entitled to more than you think…

A recent case involving a cohabiting couple has highlighted the need for a robust Will after a man died and the judge awarded his surviving partner more than he intended.

There has been a rise in disputes between family members over inheritance. And a recent case has shown that a cohabiting partner might have a greater claim to your estate than you realise.

What happened in this case?

While the ‘common law’ husband or wife doesn’t actually exist in law, living with someone could entitle them to a substantial proportion of their deceased partner’s estate. Even if this goes against the terms of their partner’s Will.

Mr Hodge and Ms Thompson lived together for over 40 years. However, just before he died, Mr Hodge created a Will leaving nothing to his partner. In a letter he explained that he did this because he believed Ms Thompson would need to move into residential care after his death, and that she had her own finances to cover this cost.

However, Ms Thompson was unhappy with this and contested the Will. Her claim was successful as the judge found that she did not need to move into residential care and could live independently, but did not have the financial means to do so. As such, Ms Thompson was awarded a home worth £225,000, as well as a further £28,800 to pay for adaptions to the cottage, and an additional lump sum of £116,000 to help supplement her limited income.

This isn’t a one-off

In this case, the named beneficiaries will still inherit a sizeable amount as the estate was worth £1.5 million. Furthermore, the fact that Mr Hodge’s reasons for not taking care of his longstanding partner were unfounded contributed to the judge’s decision. But this is not the first time a Will has been overturned in favour of a cohabitee.

Indeed, it is possible for a ‘common law’ partner to bring a claim under the Inheritance Act after just two years of cohabitation if they rely on financial provision from the estate to carry on living the lifestyle they have become used to (however luxurious that lifestyle might be).

So, money and property can be given to someone other than the deceased’s intended beneficiaries.

The death of a loved one is a difficult time, and, where there are disputes about a Will, the stress and upset can make it even harder. As such, taking professional advice is crucial if you want to protect your Will against any potential challenge. With disagreements over money or property devastating for those left behind, and often very expensive to resolve, a properly prepared and considered Will should be a priority.

To make sure your Estate is passed on in line with your wishes, or to dispute a Will, speak to one of our expert team by calling legalmatters on 01243 216900 or email us at info@legalmatters.co.uk.

Finding our posts interesting? Why not sign up to receive legalchatters, our regular news, views and update service straight to your mailbox. Or Follow Us on FaceBook.