Should I make a mirror Will?

Mirror Wills are two Wills made by a couple usually leaving everything to each other and then to the same choice of beneficiaries, usually their children.

The intention of mirror Wills is to provide for the other person and ultimately for the same beneficiaries once both parties have passed away. There are some drawbacks to making mirror Wills however, and it is important to understand these before deciding on this type of estate planning.

Why make a mirror Will?

For a couple who have the same wishes for their estate and want to leave everything to the same beneficiaries, having a mirror Will drawn up is often more cost-effective than having two different Wills.

Both documents will be almost identical, meaning there is less preparation involved in the drafting and checking.

Having a valid Will in place ensures that an estate will go to the chosen beneficiaries. Without a Will, assets pass under the Rules of Intestacy and this could mean loved ones missing out or a family dispute arising.

By making a mirror Will leaving everything to each other, they can be sure that their spouse or partner is provided for after their death.

Points to be aware of when making a mirror Will

The disadvantage of making mirror Wills is that either party could change or destroy the Will at a later date. Legally, this is allowed, and there is no requirement to advise the other person that this has been done.

This means that one person could inherit the entire estate from the other person, then change their Will to leave it elsewhere and not to the beneficiaries originally chosen by the couple when the mirror Wills were made.

Another disadvantage to leaving everything to a spouse or partner is that they could lose or spend the money in some way prior to their death. By way of example, funds could be used up in paying for care home fees.

If the surviving partner marries or enters into a civil partnership, then any Will they have made previously will automatically become invalid. Unless they make a new Will, their assets will pass in accordance with the Rules of Intestacy, with the bulk of their estate passing to their spouse or civil partner.

Protecting your assets

The way around this is to leave the spouse or partner a life interest in property or other assets. This means that they could continue to live in a shared property for the rest of their life, or as long as they wish to, but when the property is sold, the share that belonged to the first to die will pass in accordance with their Will, usually to their children.

For this to be possible, any jointly owned property will need to be held as tenants in common and not as joint tenants. When property is held as tenants in common, it passes in accordance with the terms of a Will or under the Rules of Intestacy. If a property is held as joint tenants, then on the death of one tenant it will automatically pass to the survivor and not form part of the estate to be distributed to beneficiaries.

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Doubt – with a coffee to go

Doubt and self-doubt can be paralysing. How do we get past it? Thasha Aly discusses.

Self-doubt. I’ve had it since I can remember. I’m constantly rebuked by beloved friends and family when I talk myself down. When I make less of a ‘thing’ of any achievements I may have had. Or when I downplay my role in any success. It’s just never felt comfortable for me. It’s okay to feel humble, but when that humility morphs into self-doubt, surely that isn’t a healthy thing? When does it stop being about appearing grounded, and when does it start to just weigh you down?

I had a conversation with a friend recently, where we talked about what life would be like post-pandemic. After keeping her children home from school for the entire year and with a vaccination pending, she felt strangely paralysed. She asked me, whether she would have to return to the way things were after the vaccine. It transpired that during her strict lockdown, she had become more doubtful about the return to ‘reality’ than lockdown itself.

With primary school admissions suffering a steep decline in some areas of the UK, it seems that my friend isn’t alone. Not everyone wants to carry on with business as usual. I know many parents who have decided to home school their kids permanently after this pandemic, now preferring to keep them home altogether. It’s just a theory, but perhaps doubt about the schooling system has also found its way into some people’s minds? I actually work in a school myself, and I personally couldn’t do it. My hair was practically torn out after home-schooling a nursery age child for just six weeks. But again, maybe that’s because I haven’t got the self-belief that I should have?

Another friend told me an anecdote today about a woman being given the wrong order in a coffee shop. She obligingly said that it wasn’t a problem, and that she would just take the wrong coffee. But the barista stopped her and said, “No. You deserve to have what you wanted.” I think we could all do with that advice in life. It’s time we stopped prioritising the needs of others before our own. We need to ‘call time’ on letting our doubt or lack of self-belief, rule our lives. I’ve got my vaccines in hand for this brave new world, and this time round I’m ready to ditch that side sprinkling of doubt. We simply have to believe that we can move forward in whatever it is that we want to do next. No more what-if’s, and no more ‘can I do this?’ We deserve the coffee we ordered in life. Au revoir doubt. Hopefully.

Is life causing you to doubt something in life? Share your stories.

Using tax planning to minimise your Inheritance Tax bill

Insurance company NFU Mutual recently analysed HM Revenue & Customs receipts, finding that the average Inheritance Tax bill for the year 2018/19 was £199,000.

The standard Inheritance Tax rate is currently 40 per cent, which can result in a substantial bill for many estates. By taking tax planning action in advance, it is possible to legitimately reduce the amount payable.

The Inheritance Tax threshold

No Inheritance Tax is payable on the first £325,000 of any estate, known as the nil-rate band. This allowance is also transferrable to a spouse or civil partner if it is not used, meaning that a couple will have a total nil-rate band of £650,000. There is no Inheritance Tax payable if you leave everything to your spouse or civil partner or to a charity or a community amateur sports club.

The main residence nil-rate band

In addition to the nil-rate band, there is also a property allowance available, meaning that you can pass your home to a direct descendant (a child or grandchild) for an extra £175,000 free of tax. As with the nil-rate band, a spouse can pass on any unused allowance to their surviving spouse, giving married couples or civil partners the chance to pass on property of up to £350,000 free of Inheritance Tax.

Combining the two allowances gives an individual a potential allowance of £500,000, or £1m for a couple. The property allowance only applies to one property and your estate’s executor can nominate which one if you own more than one. For estates worth more than £2m, the main residence nil-rate band is reduced by £1 for every £2 over that limit, meaning that there is no residence relief available for estates worth £2.4m or more.

Gifts

You can give away gifts during your life, but the rules around this are complex and will be strictly applied. If, for example, you should need to go into a care home, the local authority will look at any gifts that you have made, to see whether they could be classed as deliberate deprivation of assets. If so, you could still be required to pay for your care, even if you have given much of your estate away.

In addition, Inheritance Tax could be payable on gifts made during the last seven years of your life. This is charged on a sliding scale. For instance, the rate for gifts made between 6 and 7 years before death is 8 per cent, while the rate for gifts made during the last three years of life is 40 per cent, where the estate is worth more than £325,000.

Small gifts of up to £3,000 can be given each year, as well as a set amount that can be given to relatives, for example, up to £5,000 to children and up to £2,500 to grandchildren.

Reducing your Inheritance Tax liability

Money left to charity will not attract Inheritance Tax and if you leave more than 10 per cent of your estate to charity, this will reduce the Inheritance Tax rate on the rest of your estate to 36 per cent.

Assets placed into a trust will not form part of your estate for Inheritance Tax purposes, although you should seek legal advice as to the most beneficial way to set up a trust.

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Business Lasting Power of Attorney and Probate

Business owners should plan for the future with a business Lasting Power of Attorney and consideration of the probate situation in respect of their enterprise.

A Lasting Power of Attorney (LPA) is a document that gives legal authority to a nominated attorney to act on your behalf, should you ever be unable to manage your own affairs.

If you were ever to become unable to deal with business matters yourself, for example through accident, illness or incapacity, then it might mean that your organisation could not be run efficiently. For instance, if no-one is able to access bank accounts, then it may be impossible to pay salaries or purchase stock.

Your family or business partners would need to apply to the Court of Protection to have a deputy appointed, which could be complex and time-consuming, meaning that your business interests could be damaged in the interim.

There is also the risk that the court will not appoint the person whom you would have liked to act on your behalf.

Making a business Lasting Power of Attorney

Buy putting a business LPA in place, you can choose the right person to deal with affairs on your behalf. In the event that you were to be incapacitated, this could be used straight away, meaning that business could continue uninterrupted.

It is also possible to tailor an LPA so that it can be used for particular transactions, for example, in the event that you were out of the country for a period.

Choosing a business attorney You should choose someone who you trust implicitly but whom you also believe has the knowledge and understanding to step in and manage your business affairs if needed. It is advisable to discuss the situation with them beforehand to ensure that they are willing and able to act.

This should be done as part of your business risk management strategy, to ensure that if a problem arose, your operation could carry on as seamlessly as possible.

Probate and estate administration

When someone dies leaving an operational business, decisions will often have to be made immediately. Depending on the way the business is structured and the contingency plans that are in place, someone else involved in the business will usually be able to step in to run the organisation.

Business assets form part of an estate in the same way that other assets do. Where the deceased was a sole trader, their business would usually be sold or wound up.

Where the business is run by a partnership, the partnership agreement may set out the agreed procedure to be followed in the event of a death.

If the deceased was a company director, then their shares in the company will be dealt with in accordance with the terms of their Will. There may also be an agreement in place requiring first refusal on the sale of shares to be given to other directors.

Making plans for future eventualities is part of good business practice. By putting a Lasting Power of Attorney in place and ensuring that your Will adequately deals with your business interests, you can ensure that your enterprise can keep running smoothly whatever happens.

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When someone dies: a step by step guide to administration

When someone dies, the administration can seem overwhelming at what is a very difficult time. We take a look at each step to be taken.

Following a death, dealing with all of the necessary paperwork is an onerous task. If a Will is left, it will appoint an executor who will be responsible for carrying out most of the work, or they can engage a probate solicitor to do this on their behalf.

Register the death

A family member or the executor can register the death at the local Register Office. This should be done within five days of the death. The government should then be notified, which can be done using the Tell Us Once service, so that most government departments will be notified in one go.

Find the Will

If there is a Will, this should be located. It may be stored with the deceased’s solicitor or bank. There will usually be a letter of receipt indicating where it is with the deceased’s papers.

If there is no Will, then someone who is entitled to inherit can apply to be the estate administrator.

Make funeral arrangements

The Will may include details of what sort of funeral the deceased would have liked. Family members will generally arrange this, with the first step being to contact a funeral director, who will guide everyone through the process.

Value the estate The deceased’s personal representative, either their executor if they left a Will or their administrator if they did not, will need to locate all of the deceased’s assets and obtain a value for them, as at the date of death. They will also need to establish what debts and other liabilities exist and what income the deceased was being paid.

Pay Inheritance Tax

Once it has been established how much the deceased’s net estate is worth, Inheritance Tax should be calculated and paid.

Apply for a Grant of Representation

Many estates require a Grant of Representation to enable them to be administered, although a small estate without any property might not require this.

If there is a Will, the executor should apply to the Probate Registry for a Grant of Probate. If there was no Will, the administrator will need to apply for a Grant of Letters of Administration. This document gives the personal representative the legal authority to collect in and sell the deceased’s assets.

Estate administration

Once the Grant of Probate or Letters of Administration is received, the estate can be wound up. This involves collecting in and selling or transferring the deceased’s assets, to include clearing and selling property, paying the deceased’s debts, closing accounts, preparing estate accounts and distributing the estate in accordance with either the Will, if there is one, or the Rules of Intestacy if there is not.

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What should you do if a beneficiary cannot be located?

The job of the executor or administrator of an estate includes distributing assets to the beneficiaries. When a beneficiary cannot be found, it can cause complications.

After someone dies, their estate will be wound up by their personal representative. If they have left a Will, this will name an executor to carry out this job. If they did not leave a Will, then someone who is entitled to inherit from the estate can apply to become the estate administrator.

The personal representative is tasked with collecting in and valuing assets, discharging any debts, preparing estate accounts and distributing the estate to the beneficiaries. If the deceased made a Will, the beneficiaries will be named in this. If there wasn’t a Will, then the estate will be distributed in accordance with the Rules of Intestacy, which specify will inherit.

The personal representative is liable for ensuring that each beneficiary receives what they are due from the estate. If there are any mistakes made, then the personal representative could potentially be held personally liable for any losses that arise.

Finding a missing beneficiary

Every effort should be made to trace beneficiaries. You can make enquiries among the deceased’s friends and relatives and if this does not help, there is the option of instructing a specialist probate tracing company to try and locate missing family members.

You should also place a notice in the local paper nearest to where the deceased last lived. This is known as a section 27 (Trustees Act 1925) notice and will give a potential beneficiary two months in which to make a claim on the estate. While this does not necessarily absolve the personal representative of all personal liability, it can help to show that they have made every effort to trace all beneficiaries.

When a beneficiary cannot be found

Care must be taken in respect of the monies owed to a missing beneficiary to ensure that the administrator or executor does not end up with personal liability for paying this.

The money can be placed in a reserve fund and kept there for the missing beneficiary. The rest of the estate can then also be distributed to any other beneficiaries.

Alternatively, it is possible to purchase an insurance policy that will cover the payout in the event that the missing beneficiary ever comes forward.

All the money can be distributed to the available beneficiaries in return for them signing an indemnity agreeing to return the share that should have gone to the missing beneficiary, should they ever appear. This could be problematic for a personal representative if the beneficiaries do not have sufficient funds if and when a claim is made.

The final option is to apply to the court for an order permitting the estate to be distributed to the known beneficiaries. This is known as a Benjamin Order and is made when the court presumes the beneficiary has died. Evidence of attempts to trace them will need to be provided. Should the beneficiary later appear, the personal representative will be protected from a claim against them by the existence of the order.

As a personal representative, if you are unable to trace a beneficiary, it is recommended that you seek legal advice to ensure that you have done everything possible to protect yourself from liability.

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What expenses can the Executor of a Will claim?

The person named in a Will as the executor is responsible for the winding up of the estate when someone dies. The role can be onerous and time-consuming as well as involve numerous expenses.

Dealing with the administration of an estate can be complex. An executor cannot claim for the time they have incurred; however they are entitled to be reimbursed for the reasonable costs of the administration.

The role of an executor

The executor is tasked with finalising all administrative matters, to include collecting in and valuing assets, accounting for tax, preparing estate accounts and distributing the estate to the named beneficiaries.

The job can take many months and involve extensive paperwork, particularly when an estate is sizeable or complicated. If there is a property to be sold, this can be particularly time-consuming as it will need to be cleared and marketed.

Reasonable probate expenses

Executors may claim reasonable expenses from the estate funds. There is no exact definition of what a reasonable expense is, but an expense that arises from properly carrying out the estate administration would usually be allowed. This generally includes the following:

  • Funeral expenses
  • Probate Registry fees
  • Professional fees, such as a solicitor’s, surveyor’s, or valuer’s costs
  • Estate agency and other fees in respect of the sale of any property
  • House clearance
  • Property insurance
  • Maintenance costs, such as gardening or cleaning
  • Other reasonable expenses such as substantial travel or postage costs

The estate will also pay all debts owed by the deceased, such as Income or Inheritance Tax and utility bills.

Who is entitled to see estate accounts?

Once the executor has finalised the estate accounts, the residuary beneficiaries are entitled to see these. They may challenge any expenses they feel are not reasonable, so it is important to keep a breakdown of the expenses that are claimed as they are incurred.

The executor is required by law to act in the best interests of the estate and its beneficiaries. Failure to do so could potentially result in personal liability for any loss, including losses that arise from errors in the administration, even where the mistakes were genuine.

Professional help

For executors who do not have the time to administer an estate or who are concerned about the level of liability they will be required to take on, they can seek professional help from an experienced probate lawyer who will be able to deal with the administration on their behalf. Reasonable administrative expenses in respect of this representation can be claimed from an estate.

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How to witness a Will during lockdown

The rules around the correct witnessing of a Will are strict. If they are not complied with, the Will is not valid and relatives and loved ones may miss out on the inheritance that was intended for them.

The requirements for signing a Will are set out in the Wills Act 1873. The person signing the Will must do so in the presence of two or more witnesses who are also present at the time or must confirm to the witnesses that the signature is theirs.

The person signing must do so themselves or someone else can sign for them, in their presence and at their direction.

The two witnesses must each attest and sign the Will or acknowledge their signature in the presence of the testator.

This generally means that at least three people will be present together, signing the same document at the same time. With restrictions and precautions because of the pandemic, the Ministry of Justice has put new temporary rules in force.

New rules for the witnessing of Wills

With an increase in the number of Wills being made during 2020, the Ministry of Justice introduced legislation in September 2020 allowing the video-witnessing of a Will. It applies to Wills made on or after 31 January 2020 and is currently expected to apply for two years, until 31 January 2022.

Wherever possible, a Will should still be witnessed in the ordinary way. If this is not an option, then video witnessing can be considered.

Video witnessing of a Will Two witnesses must watch the testator sign and they should be able to clearly see him/her signing, but this can be done via live video link. Where possible, the process should be recorded and kept, case of any subsequent dispute.

The Will’s attestation clause will refer to the document being witnessed remotely and can also specify whether a recording has been made.

Before signing, the witnesses should be shown the Will via the camera, although they do not have to see the contents. It should be checked that they can see each other and the testator and that they will be able to see all parties signing. Ideally the two witnesses will be present together, but if this is not possible, then they can also be in separate locations.

Once the testator has signed, the Will should be sent to each witness for them to sign, preferably so that they sign within 24 hours of the testator, so ideally not relying on the postal service. Again, the testator and the other witness should see a witness signing.

Who can witness a Will?

The usual requirements for a witness to a Will apply, meaning that the following people cannot be a witness:

  • The spouse or civil partner of the testator
  • A beneficiary of the Will
  • The spouse or partner of a beneficiary
  • Someone who is under 18
  • Someone who is blind or partially sighted
  • Someone who does not have the mental capacity to understand what they are signing

If you would like to make a Will but you are concerned about how to have it witnessed, we will be happy to advise you.

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People prompted to make a Will by the Covid-19 pandemic

As the pandemic pushes the annual death rate above average, research has found that it has prompted people to make a Will.

A survey entitled the UK Wills, Trusts and Probate Market Report 2020 conducted by market research consultancy IRN Research found that of those with a Will, 4 per cent had made it because of the coronavirus situation.

The survey calculated that as 36 per cent of adults have a Will in place and the adult population of the UK is 53 million, then a total of around 19 million have a Will.

The main reason cited by most people for making a Will was simply peace of mind, with 67 per cent giving this answer. Next was ensuring that their estate would be distributed as they intended after their death at 49 per cent. For 36 per cent of those questioned, they made a Will to secure the future of their family, with 35 per cent making a Will when they had children.

In fact, there are many good reasons to put a valid Will in place, including the following.

To ensure your estate goes to those you wish to benefit from it

If someone dies without a Will, then their estate passes under the Rules of Intestacy to close family members. For example, if someone is married and has children, then the first £270,000 of their estate, plus all of their personal possessions will go to their spouse together with half of the remainder of the estate. Their children will share the remaining half of the estate equally between them. This could result in your children receiving less than you would like them to have.

To avoid the sideways disinheritance trap If someone has children and then marries for a second time, there could be a risk that their children will lose out. A marriage automatically invalidates a Will, meaning that the new spouse could inherit the bulk of the estate. It is then open to them to leave it to their children, as well as a risk it could be spent, for example, in care home fees.

To provide for your children

As well as leaving your estate to your children, you can also appoint a guardian for them if they are under the age of 18. If you do not make a Will, then it would be for the Court to decide where they should live.

To set up a trust

A Will can be used to set up a trust, which can be used for a variety of reasons. You can put money for your children into a trust until they reach the age at which you would like them to inherit.

You can also put your share of any jointly owned property into a trust, giving your spouse or partner a life interest in your share so that they can live there for as long as they want, but so that the proceeds of sale after they no longer need the home will pass to other beneficiaries, often children. 

To minimise the Inheritance Tax payable

By using estate planning, you can legitimately reduce the amount of Inheritance Tax your executors will be required to pay, meaning you can leave more of your assets to your loved ones.

It can be a complex area however, so taking professional advice is always recommended.

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The drawbacks to being a private executor

An executor, appointed in a Will to finalise someone’s affairs after their death, can be either a professional or a private individual.

According to a survey conducted by market research consultancy IRN entitled UK Wills, Probate and Trusts Market 2020, the number of private executors has increased over the past decade. Despite this, the majority of estate administrations are still dealt with by solicitors, with the following split for the two years prior to the report:

2018  Private individuals: 37.2%       Solicitors: 62.8%

2019  Private individuals: 38.3%       Solicitors: 61.7%

The reason for this is likely to be the complexity of the job as well as the number of hours of work it requires.

The job of executor

It is the executor’s job to wind up all of the deceased’s affairs and account to the beneficiaries named in the Will for their share of the estate. The process involves identifying and valuing all of the assets in the estate, calculating and paying Inheritance Tax, applying to the Probate Registry for a Grant of Probate, collecting and selling the assets, to include any property, preparing estate accounts and distributing the estate to the beneficiaries.

Difficulties to look out for

Even a relatively small estate can be quite time-consuming to administer and involve substantial paperwork. Calculating Inheritance Tax is not always easy, as gifts made in the past seven years may attract tax on a sliding scale and these will need to be identified by scrutinising financial records. Research has found that for many of those who take on the job of executor, the role is more complicated than anticipated. In addition, only a small proportion of private executors have been found to be aware that an executor can be held personally liable for any mistakes that cause losses to the estate, even if these were genuine errors.

Losses could arise by not acting promptly in winding up an estate or not reporting the loss in value of an asset to HM Revenue & Customs in time to apply for loss relief.

If a gift is not declared to HM Revenue & Customs and is later discovered, invoking a tax penalty, the executor would be liable for paying this personally.

In the event of a dispute over the contents of the Will, an executor must take care not to mismanage this and spend an excessive amount of the estate’s funds in expenses defending any legal action. At the same time, they are bound to act in the best interests of the estate and protect it as far as possible for the beneficiaries.

Professional representation

When writing a Will, a professional executor can be appointed to deal with the estate administration when the time comes. A professional will usually have more time to devote to the matter and will also be familiar with the process and how to calculate tax and prepare full estate accounts. They will also be backed by insurance, so in the unlikely event that an error was made, the estate would be unaffected.

If you have been appointed to act as someone’s executor, it is also open to you to appoint a solicitor to act on your behalf to wind up the estate.

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