Private Client

It is estimated that at least one in three people in the UK do not have a Will and, of those that do, one in four Wills are either invalid or do not properly reflect what the person signing the Will intended.

Many people believe their estate will automatically go to the right people when they die. But if your Will is not valid, then the intestacy rules may apply and your wishes will not be carried out.

A legally drawn up Will is a written statement of your wishes which records important decisions such as:

• Who inherits your estate
• Who will act as Guardians for your children, if under age
• Who carries out your wishes (your Executors).

What Is Involved?

Making a Will need not be complicated.  Our service helps you safeguard the interests of your family, friends and dependants.

We assist you in considering all the issues, which we will use to make an initial assessment of your needs. This enables us to give you the best advice in the light of your circumstances.

One of our specialist lawyers will prepare a Will that is customised for you, giving you peace of mind that the Will, once executed, is completely valid and that your wishes will be followed.

What Does It Cost?

Once you have discussed your Will requirements with us, we can give you an accurate estimate of costs – and until that stage there is no fee obligation on your part. We’re confident our expert team will deliver a value for money service through their professionalism, friendliness and ease.

What Should I Consider When Making A Will?

Step 1: Gather a rough outline of the assets you own, whether they are solely or jointly owned, the approximate value and the registered location of each.

Step 2: Your wishes are your decision – there are no rights or wrongs.  Think of the future, not the here and now.

Make the big decisions first. Whom do you want to leave your estate to? If it’s to your children, at what age should they receive the capital? By law, capital goes to a beneficiary at 18, though this might be a bit young, so we often suggest 21. There are also some sound tax reasons for doing this. However, you can set it up so that funds pay for education, maintenance and general standards of living until whatever age they receive the capital.

Outline your final wishes, for example, your Will and any associated documents can set out how you want your final send-off to happen.

Don’t get too worried about executors – we can advise on the pros and cons of the choices available.

Step 3: If you have children under the age of 18, you also need to appoint guardians, in case both parents should die. Discuss this with family and friends, but we can advise you in detail on the legal and practical points to consider, as well.

Step 4: Follow it through. Many people get as far as drafting Wills – and even pay for them – but delay getting around to signing them until it’s too late.

How Often Should I Review My Will?

You should make a new Will if you have married or entered a civil partnership, or divorced, since these events revoke the original Will, which will become invalid.  If you do not make a new Will, your estate will be subject to the intestacy rules and your wishes may not be carried out.

In summary, you should review your Will if:

• You marry or enter into a civil partnership
• You now have a child
• You divorce or end a civil partnership
• A beneficiary in your Will dies
• You change your name
• You are made bankrupt
• An executor dies or does not want to act
• Your financial circumstances improve and your net assets now exceed the current inheritance tax threshold
• If you need to go into a nursing or care home.

You can make minor alterations to a Will without having to make a new one by using a document called a codicil, which confirms the previous Will but allows you to make a few changes.

What Is An Advance Statement, Advance Decision Or Living Will?

An “Advance Statement” enables you to make general statements outlining your wishes and preferences about future treatment and care, for example relating to your religious beliefs.

An “Advance Decision” (formerly called a “Living Will”) is legally binding and explains to medical professionals what treatments you will accept or decline, in the unfortunate event that you become ill and are unable to communicate your exact wishes at the end of your life. It is useful if someone suffers from dementia, Alzheimers or other mental health issue.

How Can I Provide For Children?

You should consider appointing a legal guardian to look after your children if they are under the age of 18. When a parent dies, the surviving parent normally becomes the legal guardian. The exception to this is an unmarried father. Unless the mother appoints him, an unmarried father will not automatically become the guardian of his natural child on the death of the child’s mother.

Both of you may die at the same time, in which case, it would be wise to appoint another family member or close friend as a legal guardian.

Your trustees have the power to transfer money from your estate to the guardians for the maintenance, education and general welfare of your children.

Can A Will Be Disputed?

This can be a difficult and costly process but there are three grounds that can be used to dispute a Will:

• Someone financially dependent on you at the time of your death that believes that insufficient provision was made for them. This could be a child or cohabiting partner.
• Your Will was made under the influence or pressure of others, so you were coerced into making the decision you made.
• You lacked the mental capacity to make the Will or the knowledge required to approve its contents because of mental or physical illness.

Trusts are used extensively to preserve and protect the family’s assets by ensuring they pass to the correct people when you decide they should inherit.

However, they also offer a valuable solution for clients who want to minimise inheritance tax (IHT) associated with property.

Many families’ assets consist of the accumulation of real estate through a number of investment properties or second homes. With the long-term increase in property prices, this is becoming a major tax issue on death.

The use of trusts is an excellent planning tool for IHT, capital gains tax (CGT) and income tax planning, as well as ensuring the assets pass to the correct people. Assets are looked after by a third party, known as the ‘Trustee’, to avoid anything passing to someone you don’t want to inherit.

Your Will can be drafted (or redrafted) to include a Trust for various protective reasons:

• If you have a sole beneficiary and want your inheritance to pass to your grandchildren and not your beneficiary’s spouse;
• To protect assets for those who are too young to handle their affairs;
• Or to protect assets from children with problems, such as mental health issues, or alcohol, gambling or drug addictions.

There are two types of trust you can use:

Life Interest Trusts: Assets are held on behalf of a beneficiary for their lifetime and then passed onto another on their death. There are positive tax reasons for doing this, as the value of these assets fall under the beneficiary’s estate for inheritance tax (IHT) purposes. This is the case even though the capital value isn’t accessible during their lifetime. However, if the value of their estate is close to or above the nil rate band before the money is passed on, you may want to consider a Discretionary Trust instead, to avoid IHT.

Discretionary Trusts: The Trustee has the discretion to choose who benefits and by how much. For example, to children once they become adult.

How We Can Help

We have years of experience of advising families and individuals on the value of Trusts. We can help you decide if this is the best option and, if so, which type of Trust is most appropriate, and draft the Trust document for you.

Where you have complex family or financial circumstances, then it is advisable to appoint professional executors to administer the estate. For example, this may be the case where you intend to exclude family members or if you have a business, investment properties and/or overseas assets.

We do not charge you a fee if you appoint the partners of Bishop & Sewell as Executors of your Will. Instead, when the appointment as Executors takes effect, we offer beneficiaries competitive fee options, such as a percentage of the estate or a fixed fee.

Alternatively, you may have been named an executor under the Will of someone that has died and aren’t sure what to do next. The complexities of inheritance tax, probate and administration can be tricky to navigate, especially during times of grieving.

If so, we can also help. Having a local, efficient and experienced lawyer in your corner can make all the difference when applying to Court for legal authority to deal with the deceased’s estate.

The main duties of an executor are to:

• Identify everything in the estate e.g. cash from bank accounts and investments, get valuations of any property or pensions or shares, and calculate mortgage sums due, as well as borrowing and tax liabilities;
• Complete complex inheritance tax forms, deal with any inheritance tax due and apply for a grant of probate;
• Collect in money from the estate, pay off the deceased’s debts and liabilities, and distribute the money to the beneficiaries of the Will;
• pay funeral costs, collect in assets and pay debts and liabilities. They trace and pay the beneficiaries and draw up complex estate accounts to ensure that everything has been accounted for;
• Act as trustees if the Will sets up a trust e.g. for children under 18.

Intestacy

If a spouse or family member dies without having a valid Will, their estate is distributed under the intestacy rules. There is a strict order of who would inherit their estate, which must be administered by the closest relative.

The key points are that:

• Only direct family will inherit under intestacy: not unmarried partners or friends. Your spouse takes the first £250,000 and a life interest in half the remainder with your children taking the other half and the remainder, on your spouse’s death. If you have no children the spouse takes the first £450,000.
• Situations may be complicated by multiple marriages and divorces
• Financial dependents who don’t inherit under intestacy may be able to make a claim under the Inheritance Act.

If you are a family member in this situation, contact us and one of our friendly experts will discuss how we can help and guide you through this process.

Resealing Foreign Probate Grants

You may need help collecting assets in England and Wales where the deceased died whilst living in a foreign country, but some part of their estate is within England or Wales.

The foreign country may have granted a Grant of Probate, but that doesn’t mean you can collect the English assets using that same Grant.

Under certain circumstances, there is an option for the English court to ‘reseal’ a Grant of Probate obtained in the foreign country. This avoids the need for the Executors to apply for a fresh Grant to release any assets such as funds, shares, or property held in England and Wales.

If you hold a foreign Grant of Probate (or Letters of Administration) and need it to be recognised under English law, then ‘resealing’ the Grant may be the easiest option. Contact us and one of our friendly experts will discuss how we can help and guide you through this process.

One of our expert team would be happy to contact you to discuss your circumstances, and how we can best help.

Whether you want more information about the current tax landscape and its implications for your particular situation, or guidance on the tax-efficient structuring of your wealth, we have all the expertise you need.

Our team of experts give clear, concise and well-informed advice on how best to protect your family’s assets, both in the present and for the future.

Our tax planning advice includes all aspects of inheritance tax (IHT), capital gains tax (CGT), stamp duty land tax (SDLT) and Wills to include Trusts, to help our clients plan their affairs and formulate tax efficient strategies to preserve wealth, particularly for future generations.

We aim to build long term relationships with our clients and our long experience of working with both UK clients and international people resident in the UK. This means that we can help provide a tax planning strategy for our clients, fully understanding the range of issues that may affect them.

It is difficult to comprehend that you would ever lose the ability to manage your own affairs but mental and physical incapacity can happen to anyone at any time.

It is anticipated that by 2040, nearly one in seven people will be over the age of 75 (Government Office for Science) and by 2025, more than 1 million people in the UK will suffer from dementia (Alzheimer’s Society). Younger people are not immune; they too can suddenly become incapacitated from an accident or illness.

As such, it has become more important than ever before to have a Lasting Power of Attorney (LPA) in place. This will ensure that you have the freedom to choose those individuals you trust to manage your affairs in the event you become incapacitated.

If you do not have an LPA in place and you later lose the ability to make or communicate decisions, you would no longer be able to make an LPA. Instead, it would be necessary for your family or friends to apply to the Court of Protection to access and gain control of your assets and make decisions about your health and welfare by way of an application to act as your Deputy. These applications can be both time-consuming and very expensive, so it is best to get LPAs in place as soon as you can before it is too late.

There are two types of LPA:

• Property & Financial Affairs
• Health & Welfare

Our team of solicitors can help you put in place your Lasting Power of Attorney quickly and simply. We can also assist with an application to the Court of Protection to be appointed as a Deputy where a person has already lost mental capacity to look after their affairs and have not put in place a LPA before losing this capacity.