Registering your property at the Land Registry

Whilst land registration began in 1925, it was not until 1985 that registering your property became compulsory when a transaction such as a sale occurs. As a result, there are still a number of properties in England and Wales that have not yet been registered.

You may wish to consider registering your property “voluntarily” when no transaction takes place.

Title deeds can be misplaced. This can happen if, for example, one spouse or partner passes away when the survivor has lost capacity or is in a care home. Where are the originals? Sometimes, the family assume that they are held at the bank but this may not be the case. We have also had the situation where well-meaning family have unwittingly destroyed the title deeds. Loss of the documents will lead to lengthy, and costly, complications. It is very difficult to prove who owns the property without the title deeds. If your home is not registered and the deeds cannot be found by executors, distributing assets becomes complex and costly.

By registering your property with the Land Registry, your title and ownership will be held electronically. If your deeds subsequently become lost it might be an emotional loss but not a financial one.

Furthermore, registering your property has additional safeguarding benefits as well as giving you clarity and certainty as to what you own and how you own it. Here at Casey & Associates, not only do we recognise the importance of registering your property, we also understand the complexity of how you can benefit from the way in which you own your property. For example, to protect the property between first and second death there may well be a trust in your Will and so it might be necessary to hold your property as tenants in common instead of jointly.

Here at Casey & Associates we like to make sure that we provide continued support throughout your lifetime. If you have a trust in your Will and you move home we recommend that you contact us so we can ensure your new property is owned in the correct way.

If you would like to discuss any of the above with your Consultant please click here to arrange an appointment.

free wills advice

Reasons for creating a Will

There are numerous reasons why it is vital for you to create a Will, depending on different circumstances and changes in your life. Here are some of the main reasons why people create a Will, with links to some of our other articles where you can find out more information.

To provide for your children – This could be financial provision but if you have children under 18, this can also relate to guardianship and choosing who will look after your children should you pass away. For more information on guardianship, please click here.

To provide for your pets – Providing for pets can often be overlooked: however, by creating a Will you can give yourself better peace of mind that should something happen to you, your pet will be cared for. For more information on providing for your pet, please click here.

Divorce – You may be divorced and as a result, wish to update your Will removing your spouse. Click here to see what to do in changing marital circumstances.

Blended family – You may be a blended family. This is a family where one or both spouses have children from previous relationships. You may wish to create a Will to ensure that your estate goes to your children when you pass away. Alternatively, you may wish to create a Will to include your partner’s children. You can also ensure that assets will go to your children from your first marriage if you wish. Please click here for an example.

Unmarried – As the law does not recognise couples that are not married, you may wish to create a Will to ensure that your partner receives a share of your estate should you pass away. To find out more, please click here.

Business – If you own a business, you can provide for this in your Will. You can nominate executors to continue running the business or you can list what you would like to happen to the business after you pass. Please click here to find out more.

Non provision – If you have estranged family whom you do not want to receive anything from your estate. By creating a Will, you can choose who receives what from your estate. For more information on excluding a beneficiary, please click here.

If you die without a Will you are deemed to have died “intestate”. For more information about the laws of intestacy, please click here.

Tax mitigation – By creating a Will and carrying out estate planning, you could save inheritance tax on your estate. This could save your loved ones from paying what could be unnecessary inheritance tax on your estate. Please click here to find out more.

register death

How to register a death

When a person dies, their death needs to be registered within five working days of the death and must be registered at the local register office with the registrar for births, deaths and marriages.

There are many people who can register the death, including:

  • Anybody present at the death
  • The person arranging the funeral (although not the funeral director)
  • An official from the hospital or hospice where the individual passed away
  • An owner/occupier of the building where the individual passed away
  • A relative living in the register office district where the death took place

To register the death you will need to take the medical certificate that shows the cause of death; please note this is not the death certificate. If the individual passed away at home, the medical certificate may be held at the deceased’s doctor’s surgery. Alternatively, if the individual passed away in a hospital or hospice, a member of staff should be able to provide a medical certificate.

When registering the death, you will need to also provide these details: the date and place of death, the deceased’s full name and any former names, their date and place of birth, their last known address (such as a hospice) and, if they were married, their spouse’s full name and occupation. It is advisable, although not essential, that you take with you to the register office the following:

  • Passport
  • Driving Licence
  • Proof of address (usually a utility bill)
  • NHS medical card
  • Birth certificate
  • Marriage/Civil Partnership certificate

The registrar will give you a Certificate for Registration of Death as well as a Certificate for Burial and Cremation.

Once you have registered the death, you can obtain a death certificate. Extra copies are available from the local register office where the death was registered. Although there is a small fee for extra copies, they are very often useful as you may need to give copies out to banks/insurance companies etc.

If you are not the executor of the estate you should make contact with the executor as a matter of urgency since the executor will have various duties to carry out. Please click this link to find out more about being an executor.

terminology

Terminology used in Will Writing, Estate Planning & Trusts

Assets: physical property, such as a building, vehicle or money in a bank account that have a monetary value.

Attorney: somebody appointed to assist with an individual’s (donor’s) financial or health affairs whilst the donor is still alive.

Attestation: the process of signing your Will in the presence of two witnesses.

Beneficiary: a person who benefits from a Will or a Trust.

Donor: a person creating a Lasting Power of Attorney.

Estate: everything a person owns when they pass away, including chattels (not just land and property).

Executor: the person who carries out the wishes and instructions of the testator (a female executor used to be called an executrix).

Guardian: someone to look after the interests of children under the age of 18.

Inheritance Tax: tax paid on a person’s estate after they pass away, providing the total value is above the inheritance tax threshold. To find out more about inheritance tax, please click here.

Intestacy: when someone passes away without having a legally valid Will in place. This may be because they did not create one or they had one but it was not signed correctly. If this is the case, the estate will be administered according to the laws of intestacy. To find out more about passing away intestate please click here.

Issue: the children or other lineal descendants of a person.

Legacy: a gift left to someone in a Will (usually not referring to land).

Memorandum of Wishes: letter to executors and trustees listing specific gifts usually of sentimental value, such as family photographs.

Mirror Wills: Wills that reflect two testator’s wishes with similar distribution. For more information, please click here.

Mutual Wills: Wills that form a contract between two testators. For more information, please click here.

Nil rate band allowance: currently set at £325,000-00p – this is the allowance below which assets in the estate are taxed at the nil rate of 0%.

Personal Chattels: tangible goods (goods that can be touched i.e. furniture or jewellery).

Per Stirpes: a method of distributing assets. For example, if the testator has three children A, B and C whom he/she wishes to benefit equally but C dies before the testator, leaving 2 children, then A receives one third, B receives one third and C’s two children receive one sixth – each being one third shared between them.

Residue: everything that is left over of an estate after all debts, taxes, expenses and legacies have been paid.

Revoke: to cancel or withdraw something. For example, a Will is revoked by marriage or by creating a new Will.

Settlor: a person who transfers or “settles” something into trust.

Testator: as the person who is making the Will. (A female testator used to be called a testatrix).

Trust: an arrangement whereby a settlor transfers an asset and the trustees hold the asset for the beneficiaries under certain terms.

Trustee: a person who holds property for one or more other beneficiaries.

lasting power of attorney

Using Lasting Powers of Attorney ~ sharing an experience

One of our clients has kindly taken the time to write to us explaining how vital Lasting Powers of Attorney are. Here is her story (we have changed one or two references so that our client cannot be identified).

My parents had been together since they were teenagers. They had me when my mum was 17 and my dad was 19. They had a long and happy marriage, with two children and five grandchildren. We were just like many other families.

In 2013 my parents came to my 50th birthday celebrations and stayed overnight with us. The next morning however, my dad could not find his car keys. We all set about helping him look for them when my husband noticed them jingling in my dad’s pocket. My dad put his hand in his pocket and said there was nothing there, but upon checking my husband found that it was his keys. My dad couldn’t feel them, or anything else, with his right hand. This prompted a visit to the doctors and after several different appointments, my dad was sadly diagnosed with a terminal brain tumour and was given a life expectancy of six months.

After the initial shock, I set about arranging Lasting Powers of Attorney (LPAs) for both him and my mum. It was essential to get these done as soon as possible as once he started to lose mental capacity, we would no longer be able to do it. We got both sets of LPAs, the Property & Financial Affairs (P&A) as well as the Health & Welfare (H&W). In my dad’s case, the H&W was crucial as it meant that as an attorney, I was kept fully informed of his treatment and care right up until to the very end.

In April 2014 my poor dad died. My mum had cared for my dad during the earlier part of his illness and he only spent two weeks in a hospital. However, his death had a large impact on her. Unfortunately, she struggled with his passing and developed Frontal Temporal Dementia and as my mum also suffered from bi-polar disorder, this was magnified. As a result, she was unable to look after her own finances and began spending money at a furious rate, resulting in a rising amount of debt.

As I had already created and registered a Property and Financial Affairs LPA for her, I was able to act as attorney and reign in the spending by registering the LPA at her bank and taking over control of her finances. This was the most useful document I could have at that time. With it, I was able to pay off and close her credit card and other accruing debts. I was also able to inform companies, mostly mail-order businesses, as well as several other companies, all of whom closed her account on sight of the registered LPA.

It soon became apparent that my mum also could not handle paperwork and I used the LPA to take over her telephone and broadband account, her Gas and Electric accounts, her boiler servicing, her council tax and many other affairs. All of these companies and institutions, who usually refuse to discuss an account due to confidentiality, asked to see a copy of the LPA. I was easily able to present them with the LPA document and am now sent the bills and I manage her accounts online, just as I would my own.

This all happened in one year, with no prior warning. Previous to this, we were an ordinary healthy family that although we had heard about situations like this, had thought it would never happen to us. The LPAs took seven weeks to be registered by the Office of the Public Guardian. It was stressful waiting for them, because my dad was worried. He wanted to know that I would be able to take care of him and of my mum when she was left alone. Had we already had these in place, it would have provided him with more comfort at such a difficult time. I am so glad that I registered LPAs for my mum at the same time as my dad, because seven more weeks of her out of control spending would have been catastrophic.

Three years on my mum’s bank account is healthy; I control all of her spending and take her shopping for anything she may need. There a still a few things not yet resolved but my life is so much easier knowing that if I ever come up against any company not wanting to talk to me, I can present them with the registered LPA offering to either post or email it to them. Many companies just want the document emailed to them which is easy, takes no time at all and then they are happy to talk to me.

As my mum’s mental capacity is deteriorating I have been able to give a copy of her Health and Welfare LPA to her GP’s surgery and they now contact me whenever necessary as well as invite me in for an appointment occasionally to see how I feel about any care my mum might need. At the moment, because they have met me and know that I have power of attorney, I am in control of the situation with both the GP Surgery and Social Services. One very good example of this control is that if Social Services ever wish to assess my mum for care fees, they have to call me to make an appointment. As well as making me aware of the upcoming appointment, it also means I can ask them to post me the form and I can complete it in my own home, without them having to meet me at my mum’s house (which would involve me taking time off work to attend the appointment).

If we had left it any later for both my mum and dad, we would have been unlikely to be able to create the LPAs due to lack of capacity. The thing that surprised me most is how sudden everything was and how unprepared we had been. However by acting quickly and obtaining the LPAs, I was able to ensure that a difficult time was made easier. I now recommend Lasting Powers of Attorneys to all of my extended family and friends as you never know when you could need them.

There is nothing more for us to add except to thank our client for sharing her experience. Please click here or telephone us on 01732 868190 to arrange a visit from a Consultant to discuss creating Lasting Powers of Attorney.

missing beneficiary

Missing beneficiaries

It is really important to be able to identify the beneficiaries listed in your Will. A gift to a cousin John Smith could cause a nasty problem if you have two cousins called John Smith. A further problem can be caused if John Smith moved away many years ago and his current address is not known.

After you pass, it is the responsibility of your executors to distribute your estate according to your wishes as stated in your Will. This can be difficult in some cases where they may not be able to locate a beneficiary. There are many reasons why a beneficiary may be hard to find: they may have moved since the Will was created and it therefore does not contain their up to date address, or the address may not have not been provided in the Will at all.

Initially, the executor(s) could ask your friends and family if they have any up to date contact details for the missing beneficiary. However if that is unsuccessful, then there are a number of things that the executor must consider:

  • Setting aside sufficient funds to cover the share of the missing beneficiary. This ensures that the amount is able to be paid should the missing beneficiary come forward within a twelve-year period. This option may be dependent on the amount as it may only be viable for smaller sums and could potentially result in the executor’s role lasting for a number of years.
  • Obtaining an indemnity from the other beneficiaries. This involves paying the missing beneficiaries sum to the other beneficiaries. The other beneficiaries then sign to say that should the missing beneficiary be located, they will pay back the sum. Executors should note however, that if the other beneficiaries cannot, or will not pay, then they are personally liable to repay the missing beneficiary.
  • Alternatively, your executor(s) can take out “indemnity insurance”. This ensures that if the missing beneficiary is later located, the insurers will pay out the amount owed to the missing beneficiary.
  • The missing beneficiary’s share can be paid into the Court under the 1925 Trustee Act where it will be held in trust for the missing beneficiary.
  • Executors can also make an application to the Court for a Benjamin Order. This is usually only used when it is a large sum owed to the missing beneficiary as it can be a costly process. If successful, it permits the executor(s) to distribute the estate on the basis of an assumption, for example, the missing beneficiary has passed away. If the missing beneficiary later comes forward, the executor is normally protected from liability although the other beneficiaries may have to repay their additional share to the missing, now found, beneficiary.

Whilst there are numerous ways in which your executors could carry out their legal responsibilities in ensuring they provide for a missing beneficiary, it can be distressing, costly and time consuming.

At Casey & Associates, we recommend updating the names and addresses of beneficiaries in your Will as they change. However, we realise that this can be a costly exercise as the years pass by. A good compromise is to create a list containing the date of birth and address for each beneficiary. The list should be stored with but not attached to your Will. The list can be updated as circumstances change. If we are storing the Will we can accept the list and store it with the Will. It might be prudent to then update your Will with a number of changes when you have a three-yearly review meeting.

If you believe your Will might need updating, please click here to arrange a visit from one of our Consultants.

keep in touch

Keeping in touch and Will storage

Whilst creating a Will is extremely important, it is also vital that it remains current as circumstances change throughout your lifetime. As a valued client of Casey & Associates you will know that we are members of the Society of Will Writers & Estate Planning Practitioners (SOWW): the country’s largest regulatory body in relation to the Will Writing industry. SOWW guidelines recommend that Wills should be reviewed approximately every three years in order to ensure that your Will still reflects your circumstances and wishes and that the advice you received when writing your Will has not been superseded by changes in legislation.

Our appointments team are in touch with each of our clients every three years to offer the opportunity for one of our Consultants to visit and review the Will and circumstances. There is no charge for this service. To be able to contact you, however, we need your most up to date contact details. If you have moved, or any of your contact details have changed, please do not hesitate to get in touch. This can be done via our website by clicking here. You may prefer to telephone us on 01732 868190.

As well as us needing to contact you, it is important that your family, executors, trustees and attorneys know to contact us and how to do it. Once your Will has been created, it is vital to inform your executors of where it is located. Sometimes Wills get misplaced and as a result, it is deemed that the individual has passed away intestate. At Casey & Associates, we currently offer secure storage for life for £100+VAT per Will. As well as this giving you peace of mind, it is also beneficial for your Executors as they will know where the Will is when the time comes. We also offer an estate administration service to help all executors and trustees at what will be an already difficult time.

Every client can send their Will to us when it has been attested (signed and witnessed) for us to check. Wills sent to us for storage are scanned before they are placed in our secure store. If there are any issues regarding the attestation of your Will, we will notify you so they may be resolved. This gives you further piece of mind that you have a legally signed and valid Will in place.

Should you wish to contact us regarding securely storing your Will, you may do so by clicking this link or you can telephone us on 01732 868190.

common law spouse

Common law spouse

Family structures are continuously changing and a recent study shows that there around 2.3 million unmarried couples in the UK. This results in around one in eight couples, who live together but are choosing not to get married. ‘Common law marriage’ is a term often used when referring to unmarried couples who cohabitate.

In a married couple, if one spouse passes away intestate (with no Will), the surviving spouse will be legally entitled to inherit part of or all of their estate. However in ‘common law marriages’, if somebody has passed away intestate, their ‘common law spouse’ does not have a legal right to receive anything and may have to go through the Courts to inherit.

This can cause unnecessary stress at an already difficult time as well as financial difficulties for the surviving partner who may be at risk of losing their home. Homes owned as ‘tenants in common’ (where each person owns a specific percentage) are most at risk. For partners who own their property ‘jointly’, the property will automatically pass to the surviving partner. However, for those owned as ‘tenants in common’, the deceased partner’s share will form part of their estate and be distributed via the laws of intestacy.

Should you find yourself in this position, you can make a claim on the estate under the 1975 Inheritance Act provided you have been cohabitating with the deceased for at least two years prior to their death. This could result in; periodic payments, an agreed cash amount or a transfer of property.

At Casey & Associates, we can help to avoid this unnecessary stress by visiting you in the comfort of your own home to discuss your wishes and create a Will. We encourage all aspects of estate planning and believe it is important to think about creating Lasting Power of Attorney (LPA) documents as well.

As common law spouses are not legally recognised, they are not able to legally make decisions on behalf of each other regarding either health or financial matters. Should you be in hospital and lack the capacity to make decisions for yourself, your common law spouse would not have the necessary authority to decide on any treatment you may (or may not) want.

Similarly, should you lose mental capacity or be otherwise incapable, your partner would not be able to go to financial institutions, such as your bank and assist with your finances. At Casey & Associates, we can create both Property & Financial Affairs and Health & Welfare LPAs where you can nominate who you would like, such as your partner, to be your attorney(s) should you need assistance in the future.

If you would like a visit from one of our Consultants to discuss these matters further, please click here.

Face to face meetings

At Casey & Associates we try and maintain world class levels of client satisfaction and pride ourselves on our excellent customer service. This starts with one of our Consultants visiting you in the comfort of your own home to offer you expert, friendly, face to face advice.

There are numerous reasons why we like to meet with our clients in person. Firstly, we need to ensure we carry out all relevant identity checks. We do this not only to ensure you are who you say you are, but also to ensure we comply with money laundering legislation.

As well as this, we feel it is important that the instructions you give us truly reflect your true wishes. Whilst we welcome other family members or friends being present at the meeting, it is important that our Consultant meets with you in person to ensure your decisions are not being influenced by another person and you are not being coerced in any way. Sometimes, our Consultant will ask to see you, our Client, alone.

Furthermore, our Consultant needs to ensure that you have mental capacity at the time of making a Will or Lasting Powers of Attorney (LPA). The only way to gain a true reflection is during a face to face meeting. Our Consultants participate in regular training and throughout your meeting will be assessing your mental capacity.

At Casey & Associates we like to keep in touch with our clients. The Society of Will Writers & Estate Planning Practitioners (SOWW), the country’s largest regulatory body in relation to the Will writing industry, recommends that Wills should be reviewed approximately every three years. This is to ensure that their content is still relevant to the client concerned and that the advice they received when writing their Will has not been superseded by changes in legislation. As members of the SOWW, our appointments team will be in touch with each of our clients every three years to offer a review meeting. Clients can write in with any minor amendments they need but if there is a substantial change in circumstances that requires more significant amendments we do recommend another face to face visit from one of our trained Consultants.

Should you be interested in receiving a visit from one of our Consultants, please click here.

General planning

The following is a theoretical example of why it is so important to plan for the worst.

Mr & Mrs Smith are a couple with a young child. They own multiple properties jointly and their Principal Primary Residence (PPR) is owned solely by Mr Smith. Unfortunately, Mr Smith has lost capacity and no Wills, Lasting Powers of Attorney or Trusts have been set up. In other words, no Estate Plan has been prepared.

Once somebody has lost capacity, a Lasting Power of Attorney can no longer be created and instead one has to apply to the Court of Protection for a deputyship. This can be a very lengthy and ultimately, very expensive, process.

  • To find out more about creating a Lasting Power of Attorney, please click here.

As a result, Mrs Smith is unable to access and assist Mr Smith with his financial matters. This could potentially cause bills to be unpaid and debts to arise. Furthermore, if Mrs Smith was to pass away before Mr Smith, they could potentially lose their properties to cover the costs of care. As the properties are owned jointly, these would pass into Mr Smith’s sole name upon Mrs Smith’s passing. Therefore if, or when Mr Smith receives care, each property could be assessed by the local authority to cover the cost of his care fees. This could potentially result in their child inheriting (much) less than they expected.

As Mrs Smith has not created a Will, she has not elected a guardian for her young child and therefore if she passes away first, Mr Smith would not have the capacity to care for the child. This could result in the Court of Protection deciding what is best for the child and the child not being cared for by the people his mother may have chosen.

  • To find out more about guardianship, please click here.

Since Mrs Smith approached us, we have been able to create Lasting Power of Attorney documents for her and also a Will. Mrs Smith has also changed the way the properties are owned to be enabling her to protect some of the family assets using Trusts.

  • To find out more about Life Interest in Property Trusts please click here.

Unfortunately, as Mr Smith has already lost capacity, we are unable to create Lasting Power of Attorney documents and a Will for him. As a result, Mr Smith will pass away intestate. The rules of intestacy often are not how a family wishes to distribute their assets.

Fortunately, we are able to now help Mrs Smith. If we had been involved earlier we could have helped Mr & Mrs Smith to a greater extent.

Should you wish to discuss any of the topics covered in this example please feel free to contact us here.