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.
When you’re writing your Will, you will need to choose the right person to be your executor. We look at what being an executor entails and whether that person can also be a beneficiary.
It is important when writing your Will that the executor you name is someone you trust to deal with your affairs after you’ve gone. Estate administration can be a long and sometimes complicated matter and you need to be sure that the person you have chosen is willing to act and capable of doing so.
It is perfectly acceptable for your executor to be a beneficiary as well, in fact this is often the case.
The role of executor
Your executor will be responsible for all administrative matters, starting with funeral arrangements and registering the death with the appropriate authorities. You can choose more than one executor should you wish.
They need to notify all asset holders and other organisations and then collect in and value the assets.
Other ancillary jobs such as putting vacant property insurance in place and making arrangements to check on any property regularly also fall to the executor.
Once the estate has been valued, tax needs to be calculated and paid. This includes Inheritance Tax, Income Tax and in some instances Capital Gains Tax.
Once the estate is in funds, outstanding debts need to be paid and estate accounts prepared.
The final job is to distribute the estate to the beneficiaries. This may involve transfer of assets and gifts of personal possessions as well as cash payments.
The role of beneficiary
A beneficiary will be notified that they have been left something in the Will, but won’t necessarily be regularly updated on the probate process unless there are delays. As well as receiving their named gift, they are also entitled to see the estate accounts.
If no valid Will exists
Where the deceased didn’t leave a Will, their estate passes under the Rules of Intestacy, which state that assets pass to close family members in a strict order. The spouse is at the top of the list, with children next. The person heading the list is entitled to act as executor if they choose. If they do not wish to take on the role, then the next person has the option of doing it.
By ensuring that you have a valid Will in place, you have the chance to appoint your choice of executor as well as ensuring that your assets are left to those you wish to benefit.
If you would like to talk to one of our expert Will writers, ring us on on 01243 216900 or email us at email@example.com.
Writing a Will involves more than simply choosing who to give your money to. We look at what you should consider when making a Will.
Your Will is the document that tells people what you would like to happen to your estate after your death. If you have young children, it can also ensure that they are cared for and provided for.
The following are points to think about before having your Will drawn up:
Executors are the people responsible for dealing with the administration of an estate. They will need to collect in and value the assets then arrange for transfer or sale of them and distribution of money to your beneficiaries.
It can be a complicated and time-consuming job, so it is important to choose people who you believe are capable of carrying it out, as well as those you trust implicitly. It is possible to appoint a professional executor, for example a solicitor.
If your children are under 18, you should use your Will to appoint a guardian for them in the event of your death.
If you don’t choose someone yourself, then it will be for the court to decide who should raise them. You should speak to your choice of guardian and make sure that they are happy to take on the role.
If you wish, you can include funeral arrangements in your Will, however bear in mind that they will not be legally binding. It can give your loved ones an idea of what you would have wanted however, so it can be of comfort to them. You should make sure that you have also told them that your wishes have been included in your Will in case they do not have sight of it straight away.
You can leave gifts of money or items in your Will, known as specific legacies. These can be given to named individuals or charities.
This is the portion of your estate that remains after all expenses, debts and specific legacies have been paid. You can leave it to one person or split it between several, giving each one a named share, for example a third.
The important thing to bear in mind is that if your estate ends up being smaller than you had anticipated, then the residual amount may be far less than you wanted to give to someone. Those receiving specific legacies will still receive their money first, and those sharing the residuary estate may be left with very little.
To speak to one of our expert Will lawyers, ring us on 01243 216900 or email us at firstname.lastname@example.org.
When someone dies, the first £325,000 of their estate is exempt from Inheritance Tax (IHT). If they don’t use all of this allowance, it can be transferred to their spouse’s or civil partner’s estate in due course. This is known as the transferable nil rate band.
This increases the exempt amount for the partner’s estate when they die, meaning they could have a potential IHT threshold of up to £650,000.
The relevant dates
The transfer of the nil rate band can be applied for if the remaining spouse or civil partner died on or after 9 October 2007.
In respect of civil partnerships, the transferable nil rate band can be claimed only if the first partner died on or after 5 December 2005, the date that the Civil Partnership Act became law.
How much nil rate band is transferable?
Where the first spouse or partner to die leaves all of their assets to the remaining spouse or civil partner, no IHT is payable, so the entire £325,000 can be passed to the remaining spouse, subject to the deduction of any non-exempt gifts made during the previous seven years.
How to apply to transfer the nil rate band
Two forms need to be sent to HM Revenue & Customs (HMRC). The first is the standard IHT form, while the second is the application to transfer the unused allowance. There are two options for this second form.
Form IHT217 Claim to Transfer Unused Nil Rate Bank for Excepted Estates
This form should be used when the estate of the first person to die is an excepted estate, ie. IHT was not payable, for example where the estate is worth less than £325,000 or where the assets are left to charity.
Form IHT402 Claim to Transfer Unused Nil Rate Band
Where some of the £325,000 IHT allowance was used by the estate of the first spouse to die, then only the remaining balance can be transferred to benefit the second estate. Other financial information will need to be included on the form, for example gifts made within the last seven years and pension details.
Both forms need to be signed by the estate Executor or Administrator and sent to HMRC together with the main IHT form, IHT400.
A probate lawyer will be able to work out the correct figures to be included on the form, which isn’t always straightforward, for example in the case of disposal of cash or assets by the deceased prior to their death or where gifts are made to charities, which could potentially reduce IHT liability.
To speak to one of our probate specialists, call legalmatters on 01243 216900 or email us at email@example.com.
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.
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 firstname.lastname@example.org.
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.”
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 email@example.com.
When someone dies and their assets are sold at a profit, their executor will need to calculate whether Capital Gains Tax is payable.
When an executor or administrator is dealing with the administration of an estate, part of their job is to account to HM Revenue & Customs for any tax which may be due. This includes Inheritance Tax, Income Tax and Capital Gains Tax.
Capital gains or losses during the tax year leading up to death will be taken into account when making the tax calculation, as well as any capital gains made on assets from the date of death until their sale.
This means that if for example the deceased leaves a property that is subject to Capital Gains Tax, ie a second property and not their main residence, then if the value of that property increases between death and sale, tax will be payable on the increase if the amount exceeds the Capital Gains Tax allowance.
Expenses can be deducted from the gain, for example estate agents’ or solicitors’ fees, or in the case of shares or valuables, stock broking or auction house fees.
Capital Gains Tax allowance 2019
An executor is given a Capital Gains Tax allowance of £12,000 per annum for the three tax years following death.
Once this allowance has been used up, Capital Gains Tax is payable at the rate of 28% in respect of residential property and 20% for other assets.
Beneficiaries’ liability for Capital Gains Tax
Where a beneficiary inherits a valuable asset and then proceeds to sell it, they may become personally liable for Capital Gains Tax.
They can use their Capital Gains Tax allowance and may only be liable to pay the tax at a lower rate if they are a lower rate tax payer. This means they would pay 18% on gains from a property sale rather than 28%, and 10% on gains from other assets rather than 20%.
Where a beneficiary occupied the property as their principal private residence and is entitled to at least 75% of the net proceeds of sale, the executor may use principal private residence relief to avoid the need to pay Capital Gains Tax on any increase in value.
Valuing inherited property
The value of an asset to be passed on to a beneficiary is the full market value as at the date of death.
Where the asset in question is a property, it is preferable for the executor to obtain a proper ‘red book’ valuation from a member of the Royal Institute of Chartered Surveyors, rather than simply an estate agent’s quote.
For advice on Capital Gains Tax and the most effective way of passing on assets, speak to one of our team at legalmatters on 01243 216900 or email us at firstname.lastname@example.org.
There are an estimated 51 million pets in the UK, but only a small proportion of them are mentioned in their owner’s Will.
In England and Wales, pets are considered to be the property of their owners and as such, can be left to someone in a Will.
The RSPCA estimate that there are 12 million pet-owning households in the UK, with 26 percent of us owning a dog and 18 percent a cat.
What happens to your pet when you die
If you haven’t made specific mention of your pet in your Will, then he or she will pass to the person receiving your personal possessions. This could mean that your pet ends up with someone who doesn’t want them or who is unable to care for them.
Planning for your pet after your death
Ideally you should think about who you want to care for your pet at the same time that you make your Will.
Talk to the person you have chosen and make sure that they are completely happy to take on the animal, bird or reptile. Then make sure that your wishes are clearly communicated in your Will and also to your friends and family.
How to look after your pet in your Will
If you’ve found someone to take care of your pet, name them in your Will and specify which pet they are to receive or, if they are agreeable, you can include any future pet.
You can also leave them money to cover vets bills and other expenses. This can be by way of a cash gift, contingent upon them accepting the pet, or by way of a trust. Leaving the money to them in trust, with them as trustee, means they can avoid losing any state benefits they may be receiving, which might be in jeopardy if they were to receive a lump sum of cash. You can specify what is to happen to the remainder of any trust money once your pet dies.
Consider leaving a ‘letter of wishes’ alongside your Will, setting out how you would like your pet to be cared for. While this will not be legally binding, it will help the person taking on the pet to know what your wishes are.
How animal charities can help
Some charities offer a pre-need registration service. You can contact them to discuss how you would like them to help your pet after your death.
The RSPCA, Blue Cross and Cats Protection are charities which take in pets without owners. If you do make arrangements with a charity, make sure this is specified in your Will so that your executor knows exactly what your wishes are.
To speak to someone about writing your Will, call one of our specialist team at legalmatters, on 01243 216900 or email us at email@example.com.
Disinheritance isn’t a decision taken lightly. If you intend not to leave your estate to your children or dependents, it’s essential to act now to draft a will that leaves no room for dispute.
How are estates usually divided up?
The usual division of a person’s estate is that assets would be shared between a spouse, children and other direct relations. The rise in blended families is creating a lot of grey areas in this area.
Consideration should be given to former spouses and step-children, who may be compelled, and legally permitted to challenge any exclusion.
What’s the legal standpoint?
The law is pretty clear that excluded dependants have a right to claim. The Inheritance (Provision for Family and Dependants) Act 1975 states that a spouse, former spouse, child or any other dependant can apply to the courts to intervene if they believe their loved one’s estate doesn’t make reasonable provision for them. Factors affecting court decisions include the current financial position of the person appealing and the impact on other beneficiaries.
How to ensure your disinheritance isn’t challenged?
Family relationships are complex. If you’ve decided disinheritance is right for you, there are ways to protect your legacy from a future challenge.
For blended families, consider what’s right and fair. Think about obligations to children from previous relationships, your former partner but also your current family set-up and any people who depend on you financially there.
Ensure your solicitor keeps attendance and discussion notes throughout your meetings. And, document your reasons for cutting your child out of your Will, evidencing that you have considered them but made the active choice to disinherit them. Your solicitor will keep these records, to be cited in the event of a claim on the estate.
A doctor’s assessment and signatory may be worth considering, if the person writing the Will lacks capacity to make decisions. For example, if there are mental health issues, the person is elderly or medicated, the Will could be challenged.
Many people choose to provide a token gesture to a family member they’re disinheriting, drafting legal agreements that prevent or deter them from making a claim. Others prefer to set up trusts.
However, the courts do have the power to call these funds back into your estate if they suspect nefarious reasons for doing so. Specialist legal advice is required in such circumstances.
To ensure your Will is respected, call one of our specialist team at legalmatters, on 01243 216900 or email us at firstname.lastname@example.org.