Monthly Archives: October 2019

Lost Will

What happens after a death when you can’t find the deceased’s Will?

When someone has died and their Will can’t be located, although you are certain there is one, there are several courses of action you can take to try and locate it.

If you make a Will, you should ensure that your loved ones know where it is being stored. Otherwise, there is a risk that they won’t know whether you had a valid Will in place or where it is located.

When you have a Will professionally drafted, your solicitor is likely to be willing to store the document for safekeeping for you. You will be given a receipt with their details on it, which you should keep with your important papers.

Searching for a lost Will

When a Will can’t be located, you should first search the deceased’s property and go through their paperwork. Even if you don’t find the Will itself, you may find some information about their solicitor, a receipt for the Will or even a copy of the document.

It is possible that the firm of solicitors that originally held the Will no longer exists, in which case you can contact the Solicitors Regulation Authority Intervention Archives department who store all documents held by firms which they close down.

The London Principal Probate Registry also store Wills that can no longer be held by the original law firm involved.

Finally, a firm called Certainty have a register of a certain number of Wills and will search that for you for a fee.

If you are acting as executor or administrator, it is important that you make an attempt to find a valid Will. By undertaking these searches, you will be able to show that you did everything reasonable to locate any Will, which could be important if potential beneficiaries raise any queries about your actions.

Using a copy of the Will

It may be that a signed copy of the Will is found. Application for grant of probate can be made to the Probate Registry using the copy, but it will need to be accompanied by a sworn affidavit detailing the attempts you have made to locate the original.

You will also need to explain the circumstances under which the Will has been lost and also provide information regarding anyone who would inherit under the rules of intestacy but not under the terms of the copy Will.

When the Will can’t be found

If neither the original Will nor a copy can be located then it will be necessary to proceed with administration of the estate under the rules of intestacy. These provide a strict order in which close relatives of the deceased will inherit, starting with any spouse, who will be entitled to the majority of the estate, and followed by any children.

If you would like to speak to one of our expert Will experts, call us on 01243 216900 or email us at info@legalmatters.co.uk.

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Is it possible for a single executor to act in probate?

While it is possible for a single executor to administer an estate, it is usually recommended that two are named when a Will is written.

One of the main reasons for naming more than one executor is in case someone is unable or unwilling to act when the time arises. If a single executor is named in a Will, there is a risk that they may die first, or over time may lose mental capacity. In that event, it would leave the estate without a named executor.

Acting as a sole executor

If an estate does have only one executor, the administration will usually be possible in the ordinary way.

If the winding-up is simple, for example with everything left to the remaining spouse, then a single executor will be able to deal with matters fairly easily.

The benefits of a second executor

With a more complicated estate however, it can be beneficial to have more than one executor. The job of administration can be long and complex, involving the collecting in and valuation of assets, arranging for clearance and sale of any property, calculation and payment of Inheritance Tax, preparation of detailed estate accounts and distribution of the estate to beneficiaries.

It can be helpful for executors to share the burden, particularly if the winding-up takes many months and involves a large amount of correspondence. It can also be good to involve more than one family member to help avoid disagreements and distrust arising at what will be a difficult time.

If the Will creates a trust, then a sole executor is advised to take legal advice in respect of the appointment of trustees. It is always recommended that a second executor be appointed in the case of a more complicated estate.

A joint executor acting alone

If the Will appoints executors to act together, then they are known as joint executors. It will not then be possible for a joint executor to act alone in the estate administration unless the other executor(s) give their agreement.

If the other executor(s) are happy for one person to act solely, then they can either be served with a Notice of Power Reserved, meaning they can take up the position later on, should they choose to, or they can renounce their powers completely. It is advisable for executors to take legal advice before stepping aside.

Choosing your executors

When having your Will drawn up, you should ideally select two executors who you believe will be able to do a good job in estate administration. If you are unable to find suitable candidates, it is possible to appoint a professional executor to act.

If you would like to talk to one of our Wills experts, call us on 01243 216900 or email us at info@legalmatters.co.uk.

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Making a Living Will…

A Living Will, also known as an advance decision, is designed to be used during your lifetime and sets out your wishes in respect of your care and medical treatment.

By making a Living Will, you can put in writing details of what is important to you and how you would like to be treated in the event that you are unable to make or communicate your wishes at a future date.

What you can include in a Living Will

As well as medical considerations, you can record your preferences in respect of where you would like to be cared for, personal preferences for your day to day life, such as diet and religious beliefs, and who is to be consulted about your care. You should ideally also discuss this with your family and those included in your Living Will.

You cannot include any instructions about what should happen to your estate after you die; this needs to go in a separate Last Will and Testament.

What to consider in respect of medical treatment

It is possible to refuse certain treatments, such as life support and antibiotics for life-threatening infections, but you cannot refuse basic care or food and water. Similarly, you can’t nominate someone to make decisions on your behalf.

If you have a specific condition, you should discuss the possible terms of any Living Will with your medical practitioners.

A Living Will can be made at any time, to help loved ones make difficult decisions in the future, and it is not necessary to wait until you are facing illness or incapacity.

Is a Living Will legally enforceable?

If your Living Will is within the bounds of what is legal and is valid and unambiguous, it will be legally binding on medical professionals.

Health and welfare lasting power of attorney

A health and welfare lasting power of attorney (LPA) is a document appointing someone to act on your behalf in respect of similar matters. If an LPA is signed after a Living Will is made, it may invalidate the Living Will if it gives the attorney the power to make the same decisions covered in the Living Will.

It is possible to write a health and welfare LPA that doesn’t invalidate a Living Will, however this would need to be carefully drafted.

A Living Will made after a health and welfare LPA would take precedence to the LPA in respect of life-saving treatments.

By putting a Living Will in place while you are able to make important decisions for yourself can be helpful and of comfort to your loved ones in the future.

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

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Leaving a jointly owned property in your Will…

If you own your home jointly with someone else, you should think about how you want to leave it when you write your Will.

There are two different ways in which you can jointly own a property. Only one type of ownership allows you to leave your share of your home to someone in your Will.

Owning your home as a joint tenant

If you and your spouse or partner own your property as joint tenants, then on the death of either of you, the property automatically passes to the survivor. Even if you leave all of your estate to someone else in your Will, a property owned by you as a joint tenant will become solely owned by the other joint tenant.

Owning your home as a tenant in common

If you hold your property with someone else as tenants in common, then your share of that property passes in accordance with your Will. If you don’t have a Will, then it will be subject to the rules of intestacy, which specify which of your relatives will inherit your estate.

This means that if a tenant in common dies, the surviving owner may be forced to leave the home if the person who inherits the other share wishes to sell.

Writing your Will as a property owner

It is always preferable to write a Will, whether or not you own a property, to ensure that your estate passes to those whom you would wish to benefit from it. If you do own a property jointly with someone else, think about what you want to happen after your death.

If you would like to leave your share to someone else, but you currently hold the home as joint tenants, it is possible to sever the tenancy so that ownership becomes as tenants in common. When you own a property in this way, it is also possible to hold unequal shares, for example one-quarter owned by one person and three-quarters by another. This needs to be put in writing at the time the tenancy is created. You can also put details of how you will agree any sale of the property into this document.

Creating a life interest trust

If you want your spouse or partner to live in the home after your death, but don’t want to give them your share of the property outright, your Will can give them a life interest in the home. This would give them the right to live in the property for as long as they want, but ultimately the house would pass to your choice of beneficiary.

This prevents the ‘sideways disinheritance’ trap, where a second spouse could choose to leave the property to their children, excluding the children of the first marriage.

If you would like to talk to one of our property experts or Will writers, ring us on 01243 216900 or email us at info@legalmatters.co.uk.

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Inheritance tax

Is Inheritance Tax payable on property gifted during lifetime?

It is a mistake to think that Inheritance Tax (IHT) can be avoided by giving away assets during your lifetime.

While it may often be the case that it is beneficial to pass on gifts during your life, you need to be aware that there could still be an IHT liability.

The tax rules on lifetime gifts

Gifts of cash or valuable items made in the seven years before death may need to be counted when the estate executor calculates IHT liability.

Up to £3,000 can be given tax-free each tax year, or £6,000 if no gift was made the previous year.

Each parent can give their child £5,000 tax-free towards a wedding, and a grandparent can give £2,500 and other relatives £1,000 towards a wedding.

When a gift is given in the seven years before death, it will need to be included in estate calculations for IHT. It is the job of the executor or administrator to find out what gifts have been made and account to HM Revenue & Customs for any IHT that may be due.

Where gifts exceed the amount allowed to be given free of tax, then they will be deducted from the nil-rate band, ie. the amount an individual can leave tax-free on their death. The figure currently stands at £325,000.

There is a sliding scale for calculating the amount of IHT payable on gifts. Where the sum was given less than three years prior to death, then IHT is payable at 40 percent. In the three to four years before death it is 32 percent and the sliding scale continues for each year at rates of 24 percent (four to five years), 16 percent (five to six years) and 8 percent (six to seven years).

Tax-free gifts

Small gifts of £250 or below can be given free of tax, as can gifts made from income you receive and maintenance payments made to relatives or ex-spouses.

Tax-free giving to spouse or civil partner

As your whole estate can be passed free of IHT to your spouse or civil partner, it follows that lifetime gifts to them are also free of tax. However, if you put money into a trust, this may create a tax liability. It is a complex area of law and it is advisable to speak to an expert tax and trusts lawyer.

An experienced adviser will also be able to help you make the most of IHT allowance and suggest ways of structuring your assets to minimise the amount of tax payable. When done properly, this can make a substantial difference to your liability.

It is also possible to appoint a professional executor who would be responsible for calculating IHT liability and preparing estate accounts.

If you would like to speak to one of our expert tax and trusts professionals, ring us on on 01243 216900 or email us at info@legalmatters.co.uk.

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