Tag Archives: Professional Will writing

Unresponsive...

When an Executor fails to deal with the administration of a Will

If the administration of an estate is delayed because an Executor stops responding, it can be frustrating for everyone.

A Will may name one or more Executors whose job it is to deal with the winding-up of the deceased’s affairs and the distribution of assets.

Before the administration begins, each Executor must decide whether they are willing and able to act. It is important to think this through carefully as it is difficult to withdraw partway through the administration.

Deciding not to act

If a joint Executor does not wish to take on the task, then they can renounce the role or alternatively request that power to be reserved to them, which means they can ask to act later if they choose. These decisions must be made before any action is taken in administering the estate.

Stepping down partway through administration

If an Executor wishes to cease acting during the administration it can be difficult to have themselves removed. There is a rule that once someone has ‘intermeddled’ in an estate, they cannot retire from the position of Executor.

For this reason, it is important to understand exactly what is required of an Executor before taking on the role. They are required to collect in and value all of the deceased’s assets, arrange for payment of any debts, calculate and pay any tax liabilities, prepare estate accounts and distribute the net estate to the beneficiaries named in the Will. There can be personal liability for failure to act correctly in the administration.

When writing a Will and choosing Executors it is important to ensure they know what the role entails and that they believe they will have the time and capacity to take on the job.

If you do not have anyone who is willing to act as your Executor, you can appoint a professional to act on behalf of your estate.

Dealing with an unresponsive Executor

When an Executor stops responding to communications partway through an administration, it can be very problematic. There is a time limit for completion of estate administration and any other Executors will be mindful of facing accusations of failing to carry out their duties, as well as the potential for penalties arising from late payment of tax and other debts. Beneficiaries will also be keen for the administration to be finalised.

It is important to try everything to attempt to re-establish contact with an unresponsive Executor and see if an agreement can be reached with them to conclude the process. Failing that, it may be necessary to apply to the court to have the Executor removed. The court will take into account the best interests of the estate and any beneficiaries when reaching a decision.

If you would like to speak to one of our expert Wills and Probate solicitors, ring 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.

Avoiding a Statutory Will

Who can write my Will for me if I am not able?

The appointment of an Attorney can help you deal with your affairs once you are no longer able. But they are not allowed to write a Will on your behalf.

By appointing an Attorney under a Lasting Power of Attorney (LPA), you can have someone you trust to deal with both your financial affairs and your health and welfare, should you become unable to manage them yourself.

If you do not make provision for an Attorney to act on your behalf, then your loved ones may have to make a lengthy and expensive court application in order to appoint one if you lose the ability to deal with your affairs.

You can choose to appoint an Attorney to deal with your health and welfare and in respect of your financial matters, or you can appoint an Attorney for only one of these aspects.

With regard to health and welfare, the Attorney can only act for you once you have lost the capacity to make your own decisions. In respect of a financial affairs LPA, you can choose to implement this while you still have capacity. This means that your Attorney could, for example, help you by going to the bank on your behalf if you find it difficult to go there yourself.

If you do not have a Will in place, and you lose the capacity to make one, your Attorney or anyone else cannot write one on your behalf. The process of putting a Will in place in this situation can be complicated and lengthy. An application would need to be made to the Court of Protection by your Attorney, asking them to put in place a Statutory Will.

Applying for a Statutory Will

The Court of Protection will need to see all the details of your financial situation when an application for a Statutory Will is made. This will include details of exactly what is in your estate, your outgoings, for example, care home fees, and also information regarding your family relationships.

The Official Solicitor will act on your behalf to review the information provided and put in place a Statutory Will that they consider to be fair. Anyone who may have expected to receive an inheritance from you can be involved in the process and will have the right to have their views considered.

Avoiding the need for a Statutory Will

By putting a Will in place while you still have the capacity, you can avoid the difficulties of potentially having a Statutory Will. Having a Will drawn up by a qualified professional means that you can be sure that your loved ones will receive what you wish them to have. You can also discuss estate planning, to ensure that your assets are protected as far as possible from expenses such as Inheritance Tax. You may also want to ensure that loved ones have the benefit of living in any property you own for as long as they need to.

If you would like to speak to one of our expert Will writers, ring 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.

Life Interest trust

Protecting your assets with a Life Interest Trust

Leaving someone a life interest in your Will means they will have the benefit of the asset, for example a property, for the rest of their life following which it will pass to a beneficiary chosen by you.

There may be times when it is better to leave someone a life interest, rather than give them an asset outright. By setting up a trust in your Will, you can arrange for a loved one to have use of the asset for as long as they want or need, then give it to a third person. There are two main reasons why someone might wish to proceed in this way.

To prevent the ‘sideways disinheritance trap’

The so-called sideways disinheritance trap occurs when someone with children from a previous relationship remarries. If their estate passes to their new spouse when they die, then their children may receive nothing. This can happen either because their new spouse makes a Will leaving the estate elsewhere, the new spouse fails to make a Will meaning that the estate passes to their relatives (this does not include step-children) or because the new spouse uses all of the funds, for example for care home fees.

To protect assets from care home fees

If a couple leaves all of their assets to each other, then there is a risk that the last to die will use up all of the funds in paying for care home fees. The local authority will not provide financial support until the value of a person’s assets, to include any home, falls below a set threshold, currently £23,250. This means that very little from the joint estate may be left to pass on to any children.

Using a life interest trust to protect assets

By including a life interest trust in a Will, rather than simply leaving the whole estate to a spouse, the sideways disinheritance trap can be avoided.

You can leave your new spouse the right to live in a jointly owned property for the rest of life. They would still be able to move house if they wanted, and retain a life interest in the new home. But on their death, your interest in the property or other assets would pass to your chosen beneficiaries as detailed in your Will. To pass only a life interest in a property, it must be owned as tenants in common and not as joint tenants, otherwise the property automatically becomes solely owned by the other joint owner on the death of the first to die.

Similarly, by leaving a spouse the right to live in a property for the rest of their life, but not passing them your share outright, you can prevent your half of the property being included in local authority calculations for any care home fees they may incur.

It is advisable to seek professional advice to ensure that your assets are adequately protected and that they will ultimately pass to your choice of beneficiary.

If you would like to speak to one of our wills and probate experts, ring 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.

Writing a Will when you don't own your home

Making a Will even when you don’t own your own home…

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 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.

Writing a future proof Will

Writing a Will that is future proof

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.

Beneficiaries

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.

Marriage

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 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.

Pension when you die

What happens to someone’s pension after their death?

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 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.

right choice

Choosing the right Executor for your Will

When you write your Will, you need to name one or more Executors who will carry out the administration of your estate when the time comes. We look at what this entails and what you need to take into account when choosing someone to take on the role.

The Executor to an estate has the job of bringing the deceased’s affairs to a close and distributing funds to the named beneficiaries. The task can be daunting and take many months, even years, so before appointing someone you both need to understand exactly what it entails.

The role of an Executor

There is usually a substantial amount of work involved in winding up an estate. Initially the funeral needs to be arranged and the death registered.

Asset holders need to be notified and the estate valued. Inheritance Tax should be calculated and paid, as well as any Income Tax that may be due.

Assets need to be valued, collected in and sold, to include any property, which may need to be cleared and insured in the meantime.

Estate accounts must be prepared and finally the estate is distributed to those named in the Will.

Choosing the right Executor

The Executor can be held personally liable for any mistakes made during this process, so it is important to ensure that the person you have chosen is willing to take on the role and capable of carrying it out proficiently.

Your executor should be aged 18 or over and have the mental capacity to act on your behalf.

More than one Executor

It is usually recommended that at least two Executors are appointed in a Will so that if one of them is unable or unwilling to act when the time comes, you still have someone else who can take on the role.

Two Executors can act jointly, or one can step back when the time comes and allow the other to do the work alone. You can also name a substitute Executor who would only act if one of those named could not.

If you don’t have anyone who can act for you

If you don’t have anyone willing or able to take on the task, you can appoint a professional Executor, such as a probate solicitor, to deal with the administration of your Will.

They will be familiar with the process, able to correctly calculate tax due and draft accurate accounts. A charge is made for the service, but it does mean that your loved ones will not have to struggle with complicated and sometimes frustrating paperwork following your death.

If you would like to talk to one of our Wills and Probate specialists, ring us on 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.

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.

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.

Can you leave someone a legacy in your Will and also name them as your Executor?

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 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.

What to put in your Will

What to put in your Will…

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

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.

Guardians

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.

Funeral arrangements

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.

Specific legacies

You can leave gifts of money or items in your Will, known as specific legacies. These can be given to named individuals or charities.

Residuary Estate

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 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.