Wills & Probate
We have produced this guide to try and answer some of the frequently asked questions regarding making a Will.
Why make a Will?
Making a Will allows you to decide exactly what happens to your estate after your death. If you die without a Will your estate is distributed amongst your relatives according to fixed rules without reference to your wishes. This can often lead to distress, hardship and expense for your family and friends.
How can Mewies Solicitors help?
Your matter will be dealt with from start to finish by a solicitor and Partner. We will be able to help clarify your ideas and requirements whilst offering sound advice regarding tax planning, trusts and property law. Most importantly we will make your Will legal and unambiguous and so reduce the risk of it being challenged in the event of your death.
What will it cost?
In most cases Mewies Solicitors offer competitive fixed fees for drawing up Wills of a straightforward nature. In more complex cases it may be necessary to charge at an hourly rate. Please remember that price is not the only guide to assessing the value of professional services.
Whatever your circumstances the cost of making a Will is likely to be a small price to pay to ensure that your family and friends are adequately provided for in the event of your death.
What information do Mewies Solicitors need to prepare my Will?
To draw up your Will we will need to know a number of things about you, your circumstances and your wishes. For this reason it would help save time if you could give some thought to this matter in advance. We will need to know the full names of anyone you wish to mention in the Will, what you want to give to whom, a full description of any items you want to give specifically to someone and the full names and addresses of the people you would like to be the Executors of the Will (it is best to appoint 2 or 3 people to do this). It may also help to know the approximate value of all that you own.
Can I change my Will?
We recommend that clients review their Will at least every five years to incorporate any changes in their circumstances or those of their beneficiaries, or to the tax system. A Will that is out of date is little better than no Will at all. Wills drawn up at Mewies Solicitors can be placed in our deed store at Clifford House at no charge, so updating a Will is often a simple and inexpensive procedure.
What should I do next?
Arrange an appointment to see Christopher Jackson by telephoning 01756 799 000 or send an email to wills@mewiessolicitors.co.uk
Enduring Powers of Attorney
Do I Need An Enduring Power of Attorney?
It is a trend of modern life that people are living longer and staying relatively physically fit until late in life. Sadly, deterioration in mental health still happens somewhat earlier with the consequence that someone else has to take on the responsibility of managing a person’s affairs. As financal matters and form filling get ever more complicated and demanding, we strongly recommend that anyone who is approaching (or who has already reached) retirement age should consider making an Enduring Power of Attorney. This leaflet explains, briefly, what is involved in this. If you have any queries about this subject, please feel free to contact partner Christopher Jackson for no obligation advice.
What Is An Enduring Power of Attorney?
A power of attorney is a formal appointment of someone else to manage your property and affairs. It does not take any authority away from you, and you can continue to manage your own affairs as long as you want, or are able, to do so. An ‘Enduring’ power of attorney is simply a power of attorney which will remain valid even if your mental faculties fail so that you can no longer manage your affairs yourself.
Who Can Be My Attorney?
You can appoint anyone you want to be your attorney. This should obviously be someone you know well and can trust totally to manage your affairs for your benefit. Close relatives are often chosen to do this, but professional advisers can also provide this service.
Can I Have More Than One Attorney?
You can have as many attorneys as you want, but it is usually best to have no more than two or three. If you choose to appoint more than one, you can stipulate that they must all act together {although this can create practical difficulties in using the power) or you can authorise any one of them to act independently of the others.
What Happens If My Mental Faculties Fail?
If your attorneys have reason to believe that you have become, or are becoming, mentally incapable of managing your affairs, they will have a duty to register the power of attorney with the Court of Protection, but otherwise they will be able to carry on managing your affairs without any outside involvement. Your attorneys would have to notify you if they were going to do this.
How Do I Set Up An Enduring Power of Attorney
Contact Partner Christopher Jackson who will ask you for the information required to prepare the necessary document. He will then arrange for it to be signed by you and your attorneys. If you are unable to visit our offices through illness or disability we will happily visit you either at home or in hospital.
Can I Change My Mind?
Provided that you are still capable of understanding the nature and effect of your actions you can cancel an Enduring Power of Attorney at any time. You should, however, contact us again if you wish to do this as a further document will need to be prepared.
Other Services
Making an Enduring Power of Attorney is just one of the Private Client services that Mewies Solicitors offers. Additional related services include:
- Making a Will
- Probate and Administering Estates
- Tax Planning and Trusts
- Living Wills
- Conveyancing and Gifts of Property
- Family and Children Problems
- Personal Injury Claims
Discretionary Will Trusts
The Problem
Typical family wills provide that, on the death of the spouse, the assets of that spouse pass outright to the surviving spouse. On the death of the survivor, the total joint estate then passes to the next generation. This arrangement ensures that the surviving spouse has the security of being in complete control of the total joint estate until his or her death. However, it is also an arrangement that exposes the joint estate to an Inheritance Tax bill on the death of the survivor when the value of that estate exceeds the amount of the Nil Rate Band applicable at that time.
A Solution?
Each spouse has his or her own Nil Rate Band, so payment of Inheritance Tax can be avoided ( or reduced) if, rather that the first spouse to die leaving all his or her assets to the surviving spouse, that spouse left assets up to the amount of the Nil Rate Band applicable at the date of his or her death to beneficiaries other than the surviving spouse. The estate of the surviving spouse is thereby reduced by the corresponding amount.
The simplest way to achieve this is for the first spouse to die to give to give a legacy straight to the next generation. However this has the significant drawback that other beneficiaries obtain an immediate entitlement to a share of the total joint estate and as a consequence the security of the surviving spouse (and his or her standard of living) could be jeopardised.
The Discretionary Trust
Using a Discretionary Trust to receive the legacy on the first death is a way of preserving the total joint estate intact and accessible to the survivor whilst making use of the Nil Rate Band of the first spouse to die and ensuring that the joint estate is not taxed as wholly belonging to the survivor on the death of that survivor. It is, by its nature, a relatively complex vehicle, but its main features can be summarised as follows:-
A Discretionary Trust is a trust which has a defined group of potential beneficiaries (for example, the surviving spouse, children, grandchildren and further descendants). The Trustees of the Trust (who are appointed in the Will) have an absolute discretion to apply the income or capital of the Trust Fund for the benefit of any one or more of the group of beneficiaries. It is therefore the Trustees’ decision as to which of the beneficiaries receives benefits from the Trust Fund, in what proportions, and in what circumstances. No beneficiary has any definite entitlement to receive anything.
As the discretion given to the Trustees is extremely wide it is important to choose the identity of them carefully. The surviving spouse should feel able to approach them readily and in the knowledge that they will be sympathetic to his or her needs. The surviving spouse can be a Trustee, as can other members of the group of beneficiaries, although as there can be a conflict of interest between what the survivor wishes to do and what the other beneficiaries wish to do this is not always a good idea. A common approach is for the survivor and the family Solicitor to be the Trustees so that the management of the Trust Fund is kept an entirely private matter.
As well as choosing the Trustees carefully, it is prudent for there to be a Letter of Wishes addresses to the Trustees in which wishes concerning the administration of the Trust Fund are set out. This usually states that the Trust Fund is to be used predominantly for the benefit of the surviving spouse and then, after his or her death, the Trust Fund is to be wound up and distributed to the next generation. Whilst this is not legally binding on the Trustees, it is of great assistance and of significant persuasive authority for them.
Satisfying The Legacy
Incorporating a Discretionary Trust of the Nil Rate Band into your wills gives you a tax efficient structure whereby a tax free sum will pass out of the joint estate on the first death whilst not unduly prejudicing the security of the survivor of you. However, these provisions would only be fully effective to the extent that each spouse has assets equal to the value of the Nil Rate Band in his or her sole name, or by way of an interest in joint property held as tenants in common (rather than as joint tenants). This is something that needs to be borne in mind whenever the ownership of any assets is reviewed or in any financial planning review.
Action Required
Partner Christopher Jackson has extensive experience in the field of Inheritance Tax Planning using Wills and Lifetime Gifts. Contact Christopher on 01756 799000 to arrange an appointment to review the terms of your Wills or to put suitable Wills in place.
Other Services
- Inheritance Tax Planning is just one of the Private Client services that Mewies Solicitors offers. Additional related services include:
- Probate and Administering Estates
- Powers of Attorney
- Living Wills
- Conveyancing and Gifts of Property
- Family and Children Problems
- Personal Injury Claims
For more information please e-mail wills@mewiessolicitors.co.uk