DIY Wills

We are professional Will writers. However, we accept that if your requirements are uncomplicated you may decide to create a “DIY” Will. But please be careful. Here is an example of a “DIY” Will that could, indeed would, have gone horribly wrong. (We have changed the names of those involved).

Mr Smith had created a “DIY” Will as follows:

~

I appoint my son Fred Smith and my daughter in law Jane Smith to be my executors.

I give my estate to Fred and Jane and their children in equal shares.

~

On the face of it this seems uncomplicated. It seems that Mr Smith wants Fred and Jane to receive 50% of his estate and the two children of Fred and Jane’s marriage being Charlotte and Dawn to receive 50%.

However, Fred has one child being Andrew from a previous relationship and Jane has one child being Belinda from a previous marriage.

Who gets what?

Does Fred and Jane receive 50% and Charlotte and Dawn receive 50%.

Does Fred receive one third and Jane receive one third and their children being Charlotte and Dawn receive one third between them?

Does Fred receive 25%, Jane receive 25%, Charlotte receive 25% and Dawn receive 25%?

Does Fred receive one sixth, Jane receive one sixth, Andrew receive one sixth, Belinda receive one sixth, Charlotte receive one sixth and Dawn receive one sixth?

Do Fred and Jane share 50% and do the four children share 50%?

In this case Mr Smith was able to tell us what he intended, and he agreed for us to create a professionally drafted Will. During the meeting our Consultant found out that Dawn was a vulnerable person receiving state benefits. We, therefore, included a trust in the Will so that Dawn could receive funds from the trust without affecting her state benefits. The state benefits would have been lost if Dawn’s share had be distributed directly to her.

But if Mr Smith had died before we had become involved who would have received what? And would anyone have actually known what Mr Smith wanted? There is a cost to creating a professionally drafted Will. However, the cost will almost certainly be less than the cost involved in resolving an ambiguous “DIY” Will.

If you own your home solely, or jointly with your partner, and want to discuss any of the issues raised in this article or any other Estate Planning topic with one of our consultants, please telephone 01732 868190 or click here.

Organ donation

Funeral Wishes & Organ Donation

Funeral wishes can be simple or complex. One place to note your wishes is in a Will. When creating a Will, it is a prime time to consider your wishes. By denoting them in a Will, it makes it easier for your family to ensure your wishes are being upheld.

You may also want to consider if you would like any flowers at your funeral. If not, you may wish for charitable donations to be made instead. By stating in your Will that you do not wish to have any flowers, your family will feel comfortable knowing this is what you wanted. You can also state particular charities that you may wish to receive donations, or you may state that the charities can be decided by the guests attending your funeral.

You may wish to note further instructions in your Will, such as where you wish to be buried or where you want your ashes scattered. You may note that you wish to have an environmentally friendly green burial or that you wish for the least amount of money to be spent as possible.

If you wish for your organs to be donated you can advise as such in your Will. You can also state if there are any organs that you do not wish to be used, for example your eyes or your heart. The law is changing in 2020 for organ donation. All adults will be deemed to have opted in for organ donation unless they have opted out. You will not be opted in if you have lived in England for less than 12 months prior to your death or if you lack the mental capacity to have understood the change in law or take the necessary action. This makes it more important to ensure that your family and friends know your wishes, which can be done when creating a Will.

You may want to complete your funeral planning by purchasing a pre-paid funeral plan. You can make all of your arrangements yourself removing this daunting task from your loved ones. You can choose the level of service you would like and pay for the majority or all of the fees ahead of time.  Casey & Associates offers a range of market leading pre-paid funeral plans.

If you own your home solely, or jointly with your partner, and want to discuss any of the issues raised in this article or any other Estate Planning topic with one of our consultants, please telephone 01732 868190 or click here.

Will you leave your partner homeless without a Will?

There are various ways to protect your property from sideways disinheritance or long term care fees assessment but have you considered whether your death may leave your partner homeless?

Firstly you will need consider what you would like to do with your property or your share of the property. You can own your property jointly so that the survivor automatically owns the property. But you may want to own “your” share of your home. If so, what do you want to happen if you die before your partner? Do you want to gift your property to your partner, or give them the ability to live in the property for a specified period of time, or give them the opportunity to purchase the property?

If you wish to gift your property or your share of it to your partner then you will need to leave them a gift of the property in a Will to ensure this happens. Partners cannot inherit through the laws of intestacy, therefore the only way to leave them anything will be through the creation of a valid Will.

Alternatively, you may not wish to gift your property to your partner but you may want them to have a home to live in. Through a trust in your Will, you can give your partner the right to live in a property either for a specified period of time or for life. The length of time you specify is your decision; this may be for one year so they have time to find a new home, or it could be for 30 years or until they pass away.

Another option is to give them the opportunity to purchase the property from your estate. This would mean they could continue to live in your property but your beneficiaries would receive the monetary value of the property instead.

To be able to dispose of your property, you will also need to ensure you own your property correctly. If you own your property solely, then you will be free to dispose of the property through a testamentary wish. If you own your property jointly with another, the surviving proprietor(s) will inherit the property through succession and you will not be able to dispose of your ‘share’ how you wish. In this instance it will be important to consider “severing the tenancy”.

If you own your home solely, or jointly with your partner, and want to discuss any of the issues raised in this article or any other Estate Planning topic with one of our consultants, please telephone 01732 868190 or click here.

Business man

Lasting Power of Attorney for Business Affairs

A Lasting Power of Attorney (LPA) document allows you to appoint the people you trust to manage your affairs if you can no longer do so yourself.

There are two types of LPA, one for Property & Financial Affairs and one for Health and Welfare.

For more information on these click here.

But what happens when you have a business?

The people you nominate and trust to manage your personal affairs and finances may not be the same people who you would want to manage your business affairs. This may be simply because they do not have as much knowledge of the business; or they may not have the time to manage the business and you do not want them to have to worry about it.

Therefore, you may wish to consider creating two separate LPAs. They would both be for Property & Financial Affairs but they would include preferences and instructions to control what the attorneys can manage.

For the first LPA you may appoint the people you wish to manage all of your personal finances and affairs. The LPA can be restricted to personal finances only and exclude all business affairs.

In the second LPA, you can appoint those who have knowledge of your business or the time to manage it. This LPA can be restricted to business affairs only and exclude all personal finances.

You may wish to appoint the same attorney in both your personal LPA and your business LPA but you may wish for them to act with different people.

If you would like to meet with one of our Consultants to discuss any of the issues raised in this article or any other Estate Planning topic please telephone 01732 868190 or click here.

Vulnerable child

Do you have a disabled or vulnerable child?

As the parent of a disabled or vulnerable child, it is likely that one of your many concerns is how your child is going to be taken care of after you die.

If you die without a valid Will, your assets will pass in accordance with the intestacy rules. Contrary to popular belief, your whole estate does not pass automatically to your spouse or civil partner. Your children may inherit part of your estate. On the death of the surviving spouse or civil partner, everything passes to your children.

When you have a disabled child, there are many reasons why it may not be appropriate for that child to directly inherit a potentially large sum. Firstly, it may adversely affect any means tested benefits or local authority funding that your child receives. As they are a vulnerable person, it may also leave them open to financial abuse from others. Last but not least, they may well not have the capabilities to manage their inheritance.

Preparing a suitable Will is the best way to ensure that your disabled/vulnerable child is provided for in the best way possible.

How to benefit your child

It might be tempting to ring-fence a sum in your Will and leave it to a relative, with the hope or condition that they ‘look after’ those funds on behalf of your disabled child. This is not something we usually recommend and involves an element of risk. The request is not binding and they are not obliged to use the funds in the way you wish. Those funds will be treated as part of that relative’s estate and may no longer be available to your child if they die themselves. The fund could also be depleted in the event of that relative’s bankruptcy or divorce.

Trusts

An alternative to leaving a sum with a relative is to include a trust in your Will, to which your whole estate, or your disabled/vulnerable child’s share would fall on your death. This would protect the funds from the risks outlined above as the trustees have a legal obligation to manage the funds in accordance with the terms of the trust. It also provides flexibility to cater for uncertainty over what your child’s needs are going to be in the future. You can also provide for what happens to the ‘trust fund’ when your child passes away.

It is also helpful to have a Letter of Wishes alongside your Will, in which you explain the reason for the Trust and how you intend for it to be used. Whilst such a letter is not binding, it serves as useful guidance to your trustees.

Trustees

Your choice of trustees is key, as these are the people who would look after funds for your children. Ultimately, you should choose individuals that you trust completely. You can choose two family members or perhaps a family member together with a professional. We can discuss all of the options with you.

Guardians

If your children are only young, you may state in your Will who should act as guardians in the event that both parents die while they are under the age of 18.

If you would like to meet with one of our Consultants to discuss any of the issues raised in this article or any other Estate Planning topic please telephone 01732 868190 or click here.

Aretha microphone

Hand writing expert enters Aretha Franklin Will saga

Following the discovery of a number of hand-written Wills found stuffed into the cushion covers of a sofa in one of Aretha Franklin’s luxurious mansions, a Michigan based judge has allowed a hand-writing expert to examine the alleged Wills.

This story is rumbling on, epitomising the disharmony that can be created when a professional Will is not written during the testator’s lifetime.

This case started off completely amicably with Franklin’s four sons being more than happy at having a quarter of the estate worth millions of dollars.

The four siblings also agreed that their cousin, Sabrina Owens, should be made executor because she was university educated and had the necessary skills having worked as a university administrator for many years.

Unfortunately, the speed bump arrived when an alleged Will was actually found.

Following the recent discovery of handwritten Wills being found in the famous soul and gospel singer’s suburban home in Detroit, the family has been arguing with each other over the validity and requests of Wills allegedly handwritten by Franklin before she passed away.

One of the Wills named her youngest son, Kecalf Franklin as the executor of her estate. However, other family members contest the Will and claim that Kecalf isn’t fit to handle such an important and valuable estate.

Consequently, Kecalf has since filed two court petitions seeking to be made an executor of his mother’s estate, alongside Franklin’s niece, Sabrina Owens as co-representative, who was appointed to the role last year – but with the intention to replace her in due course.

The Queen of Soul’s youngest son claims that Owens has “mismanaged the estate” and has “failed to perform a duty pertaining to office.”

According to documents, Kecalf confirms that Owens has not shared an inventory of his mother’s estate until four months after she had passed away. According to Michigan State Law, Owens should have prepared an inventory of Franklin’s property within 91 days following her appointment as a personal estate representative.

The document also alleges that Owens had not communicated details of the investigation into the appraised value of Franklin’s music catalogue or negotiations for television series and biography based on Franklin’s life.

During a recent hearing, Oakland County Probate Judge, Jennifer Callaghan, placed administration of the estate under court supervision.

Although this is all taking place in America the moral of the story is that using a professional Will writer can save time, cost and disharmony after the Testator has passed away.

If you would like to meet with one of our Consultants to discuss any of the issues raised in this article or any other Estate Planning topic please telephone 01732 868190 or click here.

DNA testing

Daughter ordered to take DNA test to prove she has an interest in her late father’s estate

Colin Birtles died without a Will in 2013. He was survived by his two daughters, Lorraine Freeman and Janice Nield-Moir. Unbeknown to her elder sister, Mrs Freeman successfully applied for letters of administration to enable her to manage and distribute his estate, amounting to his terraced house in Oldham and a small amount of cash. According to the rules of intestacy, Mr Birtles’ estate should be divided equally between the two sisters.

When Mrs Nield-Moir learned that Mrs Freeman had obtained a grant of administration, she issued a claim for revocation on the grounds that she wished to be appointed as administrator for the estate. At the same time, she sought a declaration that Mrs Freeman is not entitled to any interest in the estate, alleging that she is not, in fact, Mr Birtles’ biological daughter. Mrs Nield-Moir has collected a number of witness statements from third parties to the effect that Mr Birtles said as much to several persons during his lifetime.

Mrs Nield-Moir applied to the High Court for a direction that Mrs Freeman submit to a DNA test, which would provide scientific evidence as to her parentage before any distribution from the estate could be made in her favour. Mrs Nield-Moir offered to also be tested, to show whether they were related as full or half-sisters.

Mrs Freeman refused to consent to the DNA test. She stated that not only was her mother married to Colin Birtles at the time of her birth, but her birth certificate names him as the father, creating a common law presumption of their relationship. Moreover, after Mr Birtles and the girls’ mother were divorced, Mr Birtles paid maintenance for Mrs Freeman until she was 16 years old, under a court order to that effect. Mrs Freeman dismisses the allegations of her irregular parentage as “nothing but gossip”.

In response to Mrs Neil Moir’s application, Matthews HHJ concluded that there were three questions to be decided:

  1. Whether the test would be sufficiently accurate;
  2. Whether the court had jurisdiction to make the order;
  3. Whether in the circumstances the court ought to make the order.

Matthew HHJ quickly decided that DNA testing would produce a definitive answer as to both the applicant and the respondent’s parentage. He also determined that, following the Court of Appeal’s recent ruling in Anderson v Spencer (2018 EWCA Civ 100), that the court has an inherent jurisdiction to order DNA testing, even though it currently has no statutory jurisdiction to do so. Matthew HHJ then held that the issue to be determined was so critical to Mrs Nield-Moir’s case that the court ought to direct that the test should go ahead.

As things currently stand Mrs Freeman cannot be compelled to provide a saliva sample for the DNA test. But Matthew HHJ made it clear that the court will draw an adverse inference against her case if she continues to refuse.

It therefore seems that, in this instance, if Mrs Freeman wishes to secure her inheritance without difficulty she will have to submit to a DNA test to prove that Mr Birtles was her biological father. Should it transpire that Mr Birtles was not, she will not be entitled to a share of his estate under the laws of intestacy, and she will have to look, for example, to the Inheritance (Provision for Family and Dependants) Act 1975 for discretionary relief.

Who knows how this case will play out but it does seek to demonstrate the interplay between scientific developments and the conduct of litigation in the modern world, and the lengths parties will go to, to pursue claims over estates.

If you would like to meet with one of our Consultants to discuss any of the issues raised in this article or any other Estate Planning topic please telephone 01732 868190 or click here.

If your circumstances change, please contact us

If your circumstances change, please contact us so that we can check if your current Estate Plan is still best for you.

We have changed the family name to protect their identity, but this is what has happened to one of our valued clients.

Mr & Mrs Green were born in the 1940s. Mr Green worked for British Rail / Network Rail and Mrs Green was a teacher. In the 1970s they had two children. They purchased their council house in the 1980s and have spent their life helping their children in every possible way including gifting them funds when the children needed help. They have built up savings of £15,000 and their house is now worth £380,000. They have always wanted to leave as much as possible to their children when they pass away.

Over the years that Mr & Mrs Green have been clients, we have suggested on a number of occasions that they create Wills with a Life Interest in Property Trust and Powers of Attorney. Mr & Mrs Green have always enjoyed good health and felt that the cost of our suggestion was not justified. They were happy with their “simple” Wills. We last met Mr & Mrs Green in the autumn of 2016 but since then their circumstances have changed dramatically. Each Christmas Mrs Green used to note down the birthdays of the family in the diary of the year about to start. It was over Christmas 2016 that Mrs Green started to fill out her 2017 diary. She had always had a superb memory and her husband thought it strange that she was having to refer to her 2016 diary to pick out the family birthday dates to put them in her 2017 diary. When Mr Green remarked on this in a jovial way Mrs Green, for the first time in their almost fifty years together, swore at her husband. During 2017 Mrs Green’s aggressive dementia took over the lives of the family and sadly by the end of 2017 Mrs Green was in a care home. Because Mr Green was living in the family home and the savings were below the threshold, the Local Authority funded the care which was of a very high standard. By the end of 2017 Mrs Green had almost completely lost mental capacity.

Mr Green visited his wife every day in the care home and read to her from the books of some of her favourite authors. The whole experience was so unfamiliar to Mr Green and the children that, unfortunately, none of them thought to contact us for advice concerning the family Estate Plan.

The care home were very surprised when on 06 June 2019 Mr Green did not visit his wife. They tried to contact him without success and when they made contact with the family it became apparent that Mr Green had passed away at the age of 75.

Mr Green’s simple Will left all his assets to his wife. Now that no one lives at the family home the “exemption” status has been lifted and so the family home is now included in the assessment for care fees for Mrs Green. Mr & Mrs Green never created Powers of Attorney so the children must now apply to the court so that one of them can act as a deputy and handle the affairs of Mrs Green. This is a lengthy and costly process.

We have created thousands of Wills with a Life Interest in Property Trust which will protect half of the family home between first death and second death. If only Mr & Mrs Green had taken our advice £190,000 of the family home would now be safely in a trust ready to pass to the children when Mrs Green passes away.

If your circumstances change, please contact us so that your family is not left in the position that Mr & Mrs Green’s children now find themselves in.

If you would like to meet with one of our Consultants to discuss any of the issues raised in this article or any other Estate Planning topic please telephone 01732 868190 or click here.

letter of wishes

What is a Letter of Wishes?

When writing a Will, it’s important that you get your wishes down for who should be appointed as executors, trustees or guardians and how your estate should be distributed in a binding fashion. But what about your more general wishes for your estate, or for your children?

There are so many uses for a “letter of wishes” ~ here are some examples:

  1. Give your guardians some guidance

You’ve probably considered who you would want to care for your children if you died while they were still minors, and you’ve probably appointed these people as guardians in your Will. In your letter of wishes you can express exactly how you would prefer your children to be raised and how you wish the guardians to support them.

  1. Make your funeral wishes clear

A letter of wishes could include your preferences for burial or cremation, for what kind of ceremony you want. You could even include everything down to what music should be played, what readings should be read, and what kind of flowers displayed.

It is important that you make your funeral wishes known to your family as well as including them in a letter of wishes though. This avoids the funeral being carried out before your wishes are found.

  1. Give instructions to trustees

If you have included any trusts in your Will that give your trustees wide powers over how the trust is distributed, known as ‘discretionary trusts’, a letter of wishes is recommended. Under these types of trusts it is totally up to the trustees how they manage the funds and which of the named potential beneficiaries they benefit. In a letter of wishes you can include how you want the trustees to use their powers. For example if the trust could benefit your spouse and children you could request that the trustees treat your spouse as the main beneficiary for the rest of their life.

What you write in a letter of wishes isn’t legally binding, it is just guidance. The trustees should consider it when managing the trust though, and professional trustees will certainly try to stick to your wishes wherever possible.

  1. Distribute small personal items

You likely have lots of personal chattels. These are defined as ‘tangible movable property’ except money, and items held as an investment or mainly for business purposes. It’s quite a broad definition that could include your household ornaments, jewellery, furniture and cars. If you have a lot of personal items that you want to gift to specific people the easiest way to do this can be by including a clause in your Will that gifts all items fitting that definition to your executors with a wish that they distribute them following your letter of wishes.

Once this clause is included you can then write a separate letter of wishes to list the items you want to gift and who you want to gift them to. This is a very flexible way of dealing with your personal items so if you change your mind you can simply write a new letter without having to make a new Will.

  1. Exclude someone

If you have chosen to exclude someone from benefitting from your Will, your Consultant will have advised you whether to include a phrase in your Will or not and what the consequences are that the exclusion could have for your estate. You should also write a letter of wishes to detail your reasons for the exclusion, as this may be considered by the court if the excluded person did try to bring a claim against your estate. In these circumstances the letter is sometimes referred to as an ‘exclusion letter’ or a “letter to executors” instead.

Letters of wishes aren’t legally binding, but they’re useful for making sure you have got your less-formal wishes for your estate across to your executors, trustees and family.

If you would like to meet with one of our Consultants to discuss any of the issues raised in this article or any other Estate Planning topic please telephone 01732 868190 or click here.

The risk of miscalculating Inheritance Tax due to HMRC

The Telegraph reported that ordinary individuals inheriting assets from overseas could risk criminal charges if they miscalculate the tax owed. New legislation was introduced in 2016 which meant that beneficiaries who inherit offshore money could see their income wiped out completely due to new penalties and punishments. The clampdown is part of HMRC’s latest attempt to close a ‘tax gap’ reported to be worth £34bn per year.

A loophole in the law meant that anyone owing UK tax for income earned abroad could come forward without fear of criminal charges or paying punitive penalties. However, the so-called ‘Liechtenstein Disclosure Facility’ (LDF) ended on December 31st, 2015 and meant that HMRC could impose penalties of at least 30% of the tax due and could investigate cases going back 20 years, in contrast to the current limit of 16 years.

In addition, the larger financial sanctions will be compounded by the fact that anyone miscalculating overseas taxes could be branded as a criminal. This position was confirmed in the Chancellor’s last Autumn Statement. “This won’t just affect serial evaders but ordinary people who make a mistake with their tax or bury their heads in the sand”, said John Cassidy, a tax investigations partner at Crowe Clarke Whitehall. “After the amnesty ends HMRC will become more vigilant and less sympathetic.”

It is reported that tens of thousands of Britons underpay tax on offshore assets each year. However, this is often due to a lack of understanding, as in the case of a 92 year old woman who discovered that the Swiss bank account she inherited from her late husband was liable for back taxes. As she was a joint holder of the account, she would be branded a criminal under the new laws. Dealing with the tax implications of an estate can be a complicated process even if overseas assets aren’t involved. Many people think that they have enough knowledge and experience to deal with the estate but often end up requiring professional assistance at some stage in the process. Executors are financially and legally responsible for the distributions that are made, so you must be 100% confident that you know what needs to be done; otherwise there could be a nasty shock waiting after the estate has been distributed.

If you would like to meet with one of our Consultants to discuss any of the issues raised in this article or any other Estate Planning topic please telephone 01732 868190 or click here.