A Lasting Power of Attorney (LPA) is an official legal document appointing someone to act on your behalf should you one day become incapable of managing your affairs.
There are two types of LPA, one for financial matters and one for health and welfare. You can have one or both in place. They do not have to be used immediately they are signed, but can be registered so that they are ready when needed.
What happens if you don’t have an LPA
If you do not have an LPA in place and you should one day be unable to manage your affairs or make decisions, then no-one automatically has the right to act on your behalf, even if they are close family members.
They would need to apply to the court for a Deputyship Order, which can be a lengthy process and is considerably more expensive than making and registering an LPA. As well as the initial costs of a deputyship application, there are ongoing charges including the annual supervision fee and annual security bond fee.
Putting an LPA in place
An LPA is a fairly simple document appointing someone you trust to deal with your affairs on your behalf in the event that you cannot do so yourself.
A property and financial affairs LPA
A property and financial affairs LPA can come into effect when you choose, so you do not need to wait until you no longer have the mental capacity to make decisions. This can be useful if, for example, you have mobility issues, as your Attorney could go to the bank and other financial institutions on your behalf.
You can word the LPA to give your Attorney the power to deal with all of your property, money and other assets or you can choose to limit it to certain specified transactions or accounts.
A health and welfare LPA
This type of LPA allows your Attorney to make decisions about medical treatment, care and other welfare issues.
You can opt to expressly give the Attorney the power to make decisions about life-saving treatment.
A health and welfare LPA can only be used by your Attorney once you are no longer able to make decisions for yourself.
Putting an LPA into force
An LPA needs to be registered with the Office of the Public Guardian before it can be used. By registering it straight away, it will already be in place when required. Otherwise there may be a delay of up to three months while the court processes the application.
If you would like help in making an LPA, speak to one of our expert lawyers on 01243 216900 or email us at email@example.com.
Legalmatters are pleased to announce the appointment of Nigel Glennie as Managing Director. Nigel brings valuable commercial experience to legalmatters, having run his own enterprise for over thirty years. He replaces Martin Langan, who has become Chairman and Innovation Director.
Martin Langan explained, “We are a fast growing firm and Nigel has impressed with his operational excellence. His appointment enables me to adopt a more strategic role, combined with continuing to put legalmatters at the cutting edge of technological advancement for the benefit of our clients.”
Nigel Glennie commented, “I’m delighted to be confirmed in this important role for legalmatters, an innovative and modern law firm dedicated to the highest standards of care for our clients, and I look forward to furthering our success and working with a great team.”
Nigel’s appointment brings the number of Directors to four, including Legal Services Director Lucy Thomas and Property Law Director Rosie Cowley.
If you don’t own a property, it is easy to assume that you don’t need a Will. In fact, there are several good reasons why you should still make one.
Leaving a Will can be of great comfort to loved ones, as you can set out your wishes with regard to what you would like to happen after your death. You can also appoint people to take on various responsibilities. If you put your requests in writing in a formal legal document, it can also help avoid disagreements between family members at a difficult time.
What your Will can contain
As well as giving details of who you would like to receive your estate, you should also choose someone to administer your estate. This can be an onerous task, as your assets will need to be collected in, valued, sold, estate accounts prepared and the money distributed in accordance with your Will. If you don’t have anyone prepared to take on this role, you can appoint a professional executor.
Your Will can include your wishes regarding your funeral and resting place, and you can also leave your personal belongings to your choice of beneficiaries.
Looking after children in your Will
Your Will can appoint a guardian to look after any children who may be under the age of 18 and you can also leave money in trust for them and appoint trustees to administer the trust fund.
This means that your children will be able to benefit from the money you leave, at the discretion of your trustees, before they actually inherit it. You can also choose the age at which you would like them to inherit, for example 25, if you feel that 18 is too young.
Why it’s never too soon to write you Will
Even if you don’t own a property or have any children, it is still a good idea to put a Will in place so that your loved ones know what you would like to happen to your estate after your death.
As you go through life, you are likely to accumulate assets and responsibilities, so making a Will now means that you can be sure your chosen beneficiaries will receive what you would like them to have. A well-drafted Will can take account of potential future changes, for example if you become a home owner.
You can also leave a Letter of Wishes, explaining your choices to your loved ones, and even detail what you would like to happen to your online assets and accounts.
It is a good idea to periodically review your Will, particularly in the event of any major life changes, for example the birth of a child. If you get married, your Will automatically becomes invalid, so it is particularly important to write a new Will then.
If you would like to talk to one of our expert Will writers, ring us on 01243 216900 or email us at firstname.lastname@example.org.
Inheritance Tax (IHT) can be a nasty surprise during the administration of a Will. New Year is the ideal time to check that you’ve done all you can to minimise the burden.
Increasing property prices has had the effect of increasing the amount of Inheritance Tax many people are paying. There are ways of reducing the amount due if you plan in advance.
The IHT threshold
IHT is payable at the rate of 40% of the value of an estate above £325,000, for example on a £400,000 estate, IHT is 40% of £75,000, ie. £30,000. The person who is appointed as executor or administrator of a Will is responsible for valuing the deceased’s estate and calculating the amount of IHT due, then making payment within six months of the date of death to HM Revenue & Customs.
IHT is not payable on money left to a spouse or civil partner or to charity. When the remaining spouse or civil partner dies, the unused IHT allowance of £325,000 is added to their allowance. If some of the allowance has been used, then only the remaining balance is passed on.
Leaving property to a family member
If you leave your primary residence to your children or grandchildren, to include step-children, then a ‘main residence nil-rate band’ is applied. This is £150,000 per person for the tax year 2019/20, rising to £175,000 as from April 2020.
This means that where your main home is gifted to your children or step-children, the total IHT allowance rises to £475,000. Any unused portion of this allowance can be passed on to a spouse or civil partner, meaning they could potentially pass on assets valued at £950,000 free of IHT, rising to £1m in April 2020.
Some gifts given during your lifetime may also have the effect of reducing the amount of IHT payable. The sum of £3,000 can be given in any tax year and any unused portion of this can be carried forward to the following tax year, although not beyond a single year.
In addition, gifts of up to £250 can be given to anyone and wedding gifts can be given to children in the sum of £5,000, grandchildren of £2,500 or others of £1,000.
Larger gifts are known as potentially exempt transfers and when someone dies within seven years of making them, IHT is payable on a sliding scale.
Setting up a trust
It is possible to leave assets to your loved ones via a trust to reduce IHT payable. Professional advice should be sought to ensure your beneficiaries receive what you want them to have and that your assets are adequately protected by the trust.
If you would like to talk to one of our expert tax, wills and probate solicitors, ring us on 01243 216900 or email us at email@example.com.
When someone who has a mortgage dies, it is important to notify the lender as soon as possible. If the property has been left to you in a Will, you should ask them about the options for taking on some or all of the mortgage if it cannot be repaid.
After a death, notifications need to be sent to all of the organisations where the deceased held an account. This includes any mortgage lender.
What happens next
The monthly payments will still need to be made while the estate is administered. If the mortgage was in the sole name of the deceased, then the mortgage company has the right to ask for the repayment of the amount owed in full.
If the property is passed to someone else and they are able to meet the mortgage payments, then the mortgage company may consent to transferring the mortgage debt to that person.
It is important to speak to the lender early on after the death, so that they can set out the options.
If the property is sold, then the mortgage will be repaid from the proceeds of sale.
Where there is a joint mortgage
When a property is held with someone else as joint tenants, then the property and the mortgage will automatically pass to that other person on the death of the other owner.
This means that they will be responsible for making the mortgage payments. If this is not possible, then the property may have to be sold to repay the debt.
If the property is held as tenants in common, then the situation can be more complicated as the deceased’s share of the property becomes part of their estate and will pass in accordance with the terms of their Will or the rules of intestacy.
If the remaining owner does not inherit the rest of the property, there may be an option for them to purchase it.
To prevent a tenant in common being forced to leave the property, it is possible for property owners to leave each other a life interest in their share of the home. This means that the surviving spouse or partner would be able to continue to live in the property after death of the other. Following the survivor’s death, the share of the property owned by the first to die would still pass in accordance with their Will.
It is particularly important to think about what you would like to happen to your property after your death if you have a mortgage over it. You need to consider whether others would be able to afford to take on the debt and, if not, how you can secure their future, for example, by leaving them a bequest or taking out a life insurance policy.
If you would like to talk to one of our Wills or property experts, ring us on 01243 216900 or email us at firstname.lastname@example.org.
Over time, changes in circumstances can mean that a Will becomes out of date and doesn’t accurately reflect your wishes. We look at how to ensure your Will can cope with changes.
It is a good idea to make a Will, even if you are young. It helps keep your financial affairs organised and if anything should happen to you, it will be of comfort to your loved ones to know your wishes. You should review your Will from time to time, and update it if necessary. But careful drafting will help it stand the test of time.
Executors and guardians
When you write a Will you need to appoint one or more executors to deal with the administration of your estate. This can be a time-consuming and complicated job, so you should ensure that whoever you choose is able and willing to take on the role.
Over time, their circumstances may change however, and if you have appointed more than one executor, along with substitutes, then there is a good chance that even if someone cannot act, one of your other choices will be able to take over.
Similarly, if you are appointing guardians for children who are under 18, then you should consider alternatives in case your first choice cannot take on the role.
If you leave bequests to children by name, then babies who are born after your Will is written may be excluded.
It is possible to draft a Will that takes into account future births, and includes them alongside those who were already living at the time the Will was made.
Although it is possible to take a number of steps to future-proof your Will, you should note that upon marriage or civil partnership, any Will you have made becomes invalid, unless it was specifically made in contemplation of that marriage or civil partnership.
Change in the value of your estate
Over time, your estate may alter in value considerably, for example if you come into money or if a substantial amount of money is used in care home fees.
This can affect the proportions of any gifts you leave under your Will. Specified sums are paid out first, then the remainder is split between your choice of named beneficiaries. If the amount in your estate decreases, this could leave those inheriting the residue with less than you envisaged them having.
Even if you are confident that you have future-proofed your Will as far as possible, it is still advisable to review it regularly, and re-draft it if necessary.
If you would like to talk to one of our Wills experts, ring us on 01243 216900 or email us at email@example.com.
Pensions are notoriously complex and different rules can apply to different pensions held by different companies.
After someone’s death, the benefit of their pension may be payable to the person they nominated when the scheme was set up.
Workplace and private pensions
Sometimes a workplace or private pension scheme will provide a lump sum and/or income to your beneficiaries after you die. This will be paid to the nominated person, but it is possible for a dependant to make a claim on the funds if they have been excluded.
When you reach retirement age, you may choose to remove a lump sum of 25 percent of the value of the fund from your pension. If this is still in your estate at the time of your death, then Inheritance Tax may be payable on it, depending on the size of your estate.
You can gift this during your lifetime if you choose, but if you were to die within seven years of making a cash gift, then all or part of its value will be taken into account when Inheritance Tax is calculated.
Leaving pension funds to a beneficiary
Where a joint annuity is held, payments, usually to a spouse or partner, can continue after the death of the pension holder.
If the pension guaranteed annuity payments for a certain period of time, then these will continue to be made to a beneficiary for that period of time.
The pension may entitle beneficiaries to receive a lump sum payment. If the deceased left children under the age of 18 or a dependent partner or relative, then the pension trustees may make the decision to award a payment to them.
Payment of Inheritance Tax
Pension funds are paid at the discretion of the pension trustees and do not usually form part of the deceased’s estate, in which case Inheritance Tax is not payable on their value.
However if the pension trustees are not able to make a decision as to who the pension funds should be paid to, they may make the payment into the estate, in which case the money would be included in the Inheritance Tax calculation.
Following someone’s death, you should speak to their pension provider to find out how and to whom any payments will be made.
Because pensions are such a complex area, it is advisable to take independent advice when writing a Will, dealing with pension funds or administering an estate.
If you would like to discuss your Will or a probate matter with one of our expert team, ring us on 01243 216900 or email us at firstname.lastname@example.org.
If you own a property jointly with someone else and you want to leave it in your Will, you need to understand the different types of joint ownership.
When you buy a home with someone else, you will either own it as joint tenants or as tenants in common. This affects who the property will pass to in the event of your death.
If you own a property with someone else as joint tenants, then on the death of either of you, the property automatically passes to the other, whatever the terms of your Will.
Tenants in common
If you own property as a tenant in common with another person, then your share in the property will pass in accordance with the terms of your Will.
This type of ownership also allows you to own a property in unequal shares. If you hold a property as a tenant in common, you should ensure you have a valid Will in place so that your interest passes to your choice of beneficiary.
If you don’t have a Will
If you haven’t made a Will, then your share of any property owned as a tenant in common will pass in accordance with the rules of intestacy. This leaves your estate to your closest family members, in strict shares.
If you are married, then your spouse will receive the first £250,000 you leave, together with all of your personal possessions. Of the remainder, half goes to your spouse, with the other half being split equally between any children.
Leaving a life interest in your home
If you own a property jointly, you might want to leave your share to your children, but allow your spouse or partner to live in the property during the rest of their lifetime.
This can be done by severing the joint tenancy, if there is one, and setting up a life interest trust in your Will. It means that the joint owner won’t have to leave the property, but once they no longer need to live there it will pass to the beneficiaries named in your Will.
This prevents any children being disinherited in the case of second marriage, and can also protect your share of any property from care home fees that the co-owner may incur in later life.
Whatever method of property ownership you have, it is always advisable to put a Will in place so that you can be sure your loved ones benefit from your assets after your death. It can also prevent disagreements arising between family members.
If you would like to talk to one of our expert lawyers, ring us on 01243 216900 or email us at email@example.com.
As well as naming the people who are to receive money from your estate, a Will can make various appointments, including those of Executor and Trustee.
When you make a Will you need to consider who you would like to administer your estate and be responsible for any money that is to be held in trust. These can be onerous roles and you should be aware what they involve so that you can discuss them with the people you would like to act on your behalf.
The role of Executor
An Executor is responsible for the administration of an estate in accordance with the terms of the Will. Duties are likely to include making funeral arrangements, valuing assets, collecting them in, arranging for their sale, calculating tax payable, drawing up estate accounts and distributing the estate to the named beneficiaries.
The job can be extremely time consuming, particularly if the deceased held a variety of assets with various stakeholders. Each will need to be notified and will have their own requirements for releasing funds. If there is a property, it will need to be insured, valued, cleared and a sale arranged.
Debts will need to be paid, including Inheritance Tax, which the Executor will be responsible for calculating, based on the value of the estate.
Because the job of Executor can be difficult and they will be personally liable for any errors they may make, you should discuss it first with anyone you might wish to appoint. If you do not have anyone who is willing and able to act, you can choose to appoint a professional executor. This is someone such as a probate solicitor who is experienced in the winding-up of estates and who will be able to prepare the necessary tax returns and estate accounts.
The role of Trustee
If your Will creates a trust, then you also need to appoint Trustees to administer it. You may want to leave money to children under the age of 18 or leave a life interest in a property or a sum of money to a spouse or partner.
A Trustee’s role can include dealing with the investment of money as well as taking decisions as to where it should be spent. For example, a child’s guardian may ask for a contribution towards maintenance or education and the Trustee will need to consider whether the request is reasonable and in accordance with the intentions of the deceased.
As well as looking after the assets included in the trust, a Trustee will also need to keep clear records and prepare accurate trust accounts.
The role of both Executor and Trustee can be demanding, with consequences for inadequate performance, so it is essential that your chosen appointees understand the job they are taking on and believe they are capable of carrying it out.
If you would like to talk to one of our expert probate lawyers on on 01243 216900 or email us at firstname.lastname@example.org.
If Premium Bonds form part of someone’s estate, they must be dealt with in accordance with the National Savings & Investments (NS&I) rules.
Many people hold Premium Bonds among their financial assets. They are issued by NS&I, a Treasury-backed government savings scheme.
The minimum investment is currently £25, although older Bonds may be for smaller sums. Each £1 unit has a unique number and is entered into a monthly prize draw, with a chance of winning an amount of £25, £50, £100, £500, £1,000, £5,000, £10,000, £25,000, £50,000, £100,000 or £1,000,000. There are usually two prizes of the highest sum, around 6 x £100,000, and increasing numbers of lower prize winners, depending on the amount of bonds in any particular draw.
No interest is paid on the Bonds, and the chance of any £1 unit winning is 1:24,500. A maximum holding of £50,000 is allowed.
When a Premium Bond owner dies
NS&I have a death claims form available via their website which will need to be completed by the executor or administrator of the estate and returned to them together with a Registrar’s copy of the death certificate and a certified copy of any Will.
Premium Bonds cannot be transferred to a new owner. On death, there is the option of leaving them in the draw for up to a year following the date of death, or they can be encashed.
If they are left in the draw, then any prizes are either paid to a beneficiary, if one has been named, or accrue to the estate.
If the beneficiary of the funds wants to invest in Premium Bonds, they would have to buy them in their own name. It is not possible to own Premium Bonds jointly with anyone else.
A Grant of Probate or Letters of Administration is required by NS&I if the amount the deceased held with them exceeds £5,000. This includes other NS&I assets such as Savings Certificates.
If the amount held is below £5,000, then NS&I will not need to be provided with a Grant of Probate or Letters of Administration, but it may still be needed for other assets held by the deceased, depending on their value.
Is tax payable on Premium Bonds?
No Income Tax or Capital Gains Tax is payable on Premium Bond winnings, however the value of any Bonds held by someone is included in their estate for Inheritance Tax purposes.
If you would like to discuss Wills or probate with one of our expert team, ring us on 01243 216900 or email us at email@example.com.