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Henrietta Brett

Death and Taxes

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DEATH AND TAXES

As Benjamin Franklin said in 1789 “Nothing is certain except death and taxes.” And that is as true today as it was then.

Death

It is a very modern taboo but we are all going to die so why is it that so few of us have a Will.

If you die without leaving a Will you are said to have died Intestate, and your Estate (that is your property, money and possessions) will be distributed in accordance with the Intestacy Rules. The Intestacy Rules are a set of strict legal rules which dictate who will benefit from your Estate, how much they receive and who can administer your Estate.

If you make a valid Will however you can choose who will benefit from you Estate. The English law of succession is based on the principle of “testamentary freedom”. Put simply, this means that you can choose to leave your Estate to anyone you like.

However, there are exceptions. The Inheritance Act (Provision for Family and Dependents) 1975 allows certain people to make a claim against an estate if they have not been adequately provided for.  The most common example is that of a dependent child.  Where a child has been cut out of their parent’s Will, the child (or someone acting on their behalf) can raise a claim asking for the court to make an award for “reasonable financial provision” from the Estate.  Although adult children financially independent from their parents can also make a claim in the recent case of Ilott -v- Blue Cross and others the Supreme Court confirmed that we are in general free to choose who will inherit our property when we die and that your wishes matter and that if you record those wishes in a will, they will be listened to. If this is a matter of concern to you then you should take legal advice.

… And Taxes

Inheritance Tax (IHT) is a tax which is paid out of your estate on your death. The standard IHT rate is 40% and it’s only charged on the part of your Estate that’s above the £325,000 threshold (the nil-rate band).

There’s normally no Inheritance Tax to pay if either the value of your Estate is below the £325,000 threshold or you leave everything to your spouse or civil partner, a charity or a community amateur sports club.

From April this year if your Estate includes a main residence and your Estate is above the nil-rate band it will be possible to claim an additional nil-rate band as long as your main residence is passed on death to a direct descendant. This will be:

  • £100,000 in 2017 to 2018
  • £125,000 in 2018 to 2019
  • £150,000 in 2019 to 2020
  • £175,000 in 2020 to 2021

The additional nil-rate band will also be available when a person downsizes or ceases to own a home on or after 8 July 2015 and assets of an equivalent value, up to the value of the additional nil-rate band, are passed on death to direct descendants.

Any unused nil-rate band will be able to be transferred to a surviving spouse or civil partner.

IHT is a complex area and you may wish to take legal advice.

Funds from your Estate are used to pay IHT to HM Revenue and Customs (HMRC). This is done by the person dealing with your Estate, the “executor” if you left a Will or the “administrator” in the case of an intestacy.

The executor and administrator may also need to apply for a Grant of Probate or Letters of Administration if your Estate includes a house or flat although you don’t normally need a Grant if the Estate either passes automatically to the surviving spouse or civil partner because it was held as joint tenants or if the Estate consist only of a small amount of money. If a Grant is needed then a probate fee must be paid at the same time as sending your application form to the Probate Registry. Current probate fees are £215, or £155 for those applying through a solicitor. But the Government is increasing the fees from May as follows:

 

Value of Estate – £ Probate Fee – £
Less than £50,000 Nil
50,001 – 300,000 300
300,001 – 500.000 1,000
500,001 – 1,000,000 4,000
1,000,001 – 1,600,000 8,000
1,600,001 – 2,000,000 12,000
Over 2,000,000 20,000

 

Because both IHT and Probate Fees are payable before funds in the Estate are available you may wish to consider insurance policies or other financial arrangements to ensure the money can be accessed when it is needed.

If you would like advice on any of the issues raised in this article please contact Henrietta Brett at Fairhurst Menuhin & Co Solicitors on 01440 761200 or henrietta.brett@fmc-solicitors.com

How to Be More Organised Than Your Pet

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Buttons, my Labrador retriever, did very little retrieving over his lifetime. Mainly he buried his treasured possessions in the garden and then forgot about them.

I am afraid Buttons’s approach to storage solutions is not unique to canines. I have seen people with a variety of creative filing systems come to Fairhurst Menuhin & Co for legal advice. Clients have put important family documents such as Wills under beds, in cupboards, and even one inside a Victorian crockery set, and then promptly forgotten about them.

Unfortunately, imaginative hiding places create complications with serious legal and emotional consequences. Too often legal documents are found after disagreements have already broken out over money, property and family heirlooms. Sometimes express wishes to be buried are only discovered after a deceased family member has been cremated. All the above situations are avoidable.

So where should you store your Will?

Taking the time to responsibly look after your family and estate by drafting a Will is something we all need to do.

In all fairness, however, it is not obvious what to do with a Will once it has been created. Some solicitors firms charge you for storing your Will at their offices, and some solicitors have filing systems only slightly more sophisticated than man’s best friend. If you are an organised individual, you can hold on to your Will at home, but it is still at risk of flood or fire damage or not making its way to a lawyer at the crucial time.

At Fairhurst Menuhin & Co, we can store your Will for free. We keep our documents in fire-proof storage units. And we stay in contact with our clients over the years in case any changes, however small, need to be made. Even if you have not drafted your Will with us, we are still happy to store it for free. Or we can review it for you.

And if we are storing your Will and you want to take a look at it, unlike Buttons, we are perfectly capable of retrieving it for you.

Contact Aaron Menuhin at aaron.menuhin@fmc-solicitors.com or call our offices on 01440 761 200.

The cost of care

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The erosion of assets as a result of long-term care costs is becoming a concern for many. We are living longer and consequently professional care may become a necessity for many of us.

Care Legislation

The NHS and Community Care Act 1990 obliges Local Authorities to carry out an assessment of anyone who appears to have a care need and to ensure the individual has access to suitable care.

Once an individual’s care needs have been established, the Local Authority will carry out a Means Test to determine the reasonable cost of care required and assess the individual’s ability to pay for or contribute towards the cost, taking into account both income and assets.

Those with assets over £23,250 are unlikely to receive any funding for care, but may be entitled to other benefits to help contribute towards the costs such as Attendance Allowance.

The Government is looking at state protection for people concerned by asset erosion with the proposed introduction of a cap on the amount individuals will be expected to pay for care during their lives. The level of the cap is expected to be in the region of £70,000, which remains a significant sum in relation to the value of many people’s estates.

In situations where the person requiring care is leaving a vacant property, the value of the house will be included in their financial assessment but the individual or their attorneys will be free to decide how to raise the necessary funds to pay for the care. The Local Authority will not simply ‘take the house’ and it may be worth exploring other options which provide the required money whilst preserving the capital asset.

While a dependent relative is living in the house, the value of the house will be disregarded by the Local Authority when carrying out a Means Test.

Deprivation of assets

Making a gift of a home to children or making lump-sum payments in order to qualify for state support is known as a deprivation of assets.  If it is apparent that someone has deliberately deprived themselves of a property or assets in order to qualify for state support, and there is no other compelling reason for the gift, the local authority will carry out the assessment as though the assets still belonged to the individual. There are no time limits on how far back the Local Authority will look.

A properly drafted Will

That said, peace of mind can still come from having a professionally drafted Will. If, for example, joint owners of a property pass their respective shares to their children, subject to the survivor’s  right to occupy, only the survivor’s half of the property will be included in any future means test.

 

Simon Saunders is a member of our Wills and Probate Department at FM&C Solicitors and may be contacted on or + 44 (0)1799 526 849.

Email: simon.saunders@fmc-solicitors.com

 

The Great Common Law Marriage Myth

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That well known phrase, “living over the brush”, is often used to describe an unmarried couple who live together. It originates from the tunnel building days of the 19th Century, when, if a boy and a girl took a liking to each other but could not afford a church wedding, they could earn the respect and recognition of others by holding hands and jumping over a brush or broom handle held by two older people. They were then “married” in the eyes of their peers.

Cohabitation today

In the UK today, statistics show that more and more people are choosing to live together before, or as a direct alternative to, getting married or entering into a civil partnership. In 1996 there were less than 3 million people cohabiting in the UK. By 2012 that figure had almost doubled to 5.9 million. What’s more, an increasing number of cohabiting couples, roughly 38% of them, are having children.

Sadly, there remains widespread confusion about their position in law. According to a 2006 British Social Attitudes survey by the Centre for Comparative European Survey Data (CCESD), “no less than 58% of respondents thought that cohabiting couples who split up were probably or definitely in the same position as married couples”.

The myth of the common law marriage is widespread. But it is just that, a myth, without any basis in law.

Unmarried couples and the law

At present, unless they have entered into cohabitation agreements, the legal protection for unmarried couples who part is extremely limited. If the property the couple live in is in the sole name of one partner and that partner should die without leaving a Will, the other will not necessarily inherit anything, not even the home they lived in together. The surviving co-habitee may only secure an interest if he or she can bring a case based on the law of trusts.

There is also a limited right for cohabitants to secure some provision for their financial support from their partners’ estates on death. Whilst it may be that their minor children are entitled to support, this ends when the children are older. The parent who brought them up may then be left completely adrift, with no further legal redress.

The solution?

Until such time as proper legislative change takes place within England and Wales (Scotland  already has laws governing cohabitation in place since 2006), the best an unmarried couple wishing to live together can do is to plan ahead. Have a solicitor draw up a cohabitation agreement, incorporate a Declaration of Trust and settle a mutual Will to give peace of mind!

Let’s leave the broom jumping safely where it belongs, in the past!

2 Sue Rowlatt FMC Portfolio 2013 (10 of 13)

Sue is a member of the Family team at FM&C Solicitors and may be contacted on +44 (0)1440 761 200 or +44 (0)7462 314 872.

Email: sue.rowlatt@fmc-solicitors.com

Is your Will worth the paper it’s written on?

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The government is considering proposals to regulate the practice of Will writing, following a request from the Legal Services Board. Due to a lack of regulation Will Writers with no technical qualifications, negligence insurance or continuity arrangements continue to practice Will writing.

The Legal Services Board has encouraged regulation to reduce what the Board says are “significant risks that consumers currently face” when using unregulated Will Writers. The request by the Board is intended to bring regulation of will writers in line with that of Solicitors.

When people make Wills their aim is to reduce risk. A Will helps ensure that someone’s estate will pass as they would wish after their death; providing support to families, friends and charities.

Anyone can set him or herself up as a Will Writer. The lack of restrictions on the business of Will Writing means that Will Writers have a lack of technical qualifications.

A properly drafted Will ensures property and assets are inherited by those you wish, allowing you to make provisions for children and express your funeral wishes. The consequences of a poorly drafted Will are significant and far-reaching.

These Will Writers provide Wills at competitive prices, charging from £85 for single Will. The widespread use of hidden fees by Will Writers, such as review charges and storage fees, escalate this cost. Will Writers often quote around £20 per annum for storage of a Will at the National Wills Safe, while a local Solicitor will often store a Will free of charge.

It is during the process of estate administration that fraud and theft from estates can occur. The Law Society has warned that “consumers risk losing everything if they allow unregulated and unqualified will writers to have full control of their estate’s assets”.

Will Writing companies lack sufficient arrangements in place should the company cease trading, which may mean that your file is lost.

For true peace of mind please ensure that whoever writes your will is regulated by the professional governing body the Solicitors Regulation Authority (SRA). Solicitors are tightly regulated by the SRA, ensuring that wills are produced to the highest professional standards and worth the paper they are written on.

While Will Writing Companies are often members of the Institute of Professional Will Writers, this is not a regulatory body and cannot offer the same level of consumer protection as that provided by the SRA. This could leave you with nowhere to turn should things go wrong.

The unregulated service offered by Will Writers leaves the public unprotected from abuse in this vital area.

Julie (2) (640x422)

Julie Indaco-Plumb is a member of our Wills and Probate Department at FM&C Solicitors and may be contacted on +44 (0)7462 441184 or + 44 (0)1440 761 200.

Email: julie.indaco-plumb@fmc-solicitors.com