trust

Trusts for vulnerable or disabled individuals

A trust is an arrangement whereby trustees hold and control assets, such as property or money, for the benefit of others. Trusts can be created in lifetime or by Will.

One area where trusts are commonly used is for the protection of assets for a vulnerable or disabled person. There are various types of trusts but for these purposes the most common groups are discretionary trusts or interest in possession trusts.

When running a discretionary trust the trustees have the full discretion as to how income and capital are distributed. In this way no beneficiary has any entitlement.

An “interest in possession trust” means that the vulnerable person has an absolute right to the income.

Where relevant conditions are met the trustees can apply to HMRC for the trust to be classed as a “qualifying trust”. Such trusts receive more favourable tax treatment.

Benefits of vulnerable or disabled trusts include the following:

  • The beneficiary does not have direct access to the trust fund. The fund is protected if the beneficiary is at risk from financial abuse.
  • Funds in a discretionary trust are normally disregarded for care fees assessment and certain means tested benefits.
  • Funds in the trust can be used to “top up” care plans without affecting care funding or benefits.
  • The trustees are responsible for maintaining any property held within the trust. A vulnerable or disabled person might have difficulty to do that for themselves.
  • This sort of arrangement is ideal if the beneficiary is unable to carry out banking procedures.
  • Some trusts qualify for special tax treatment.

If any beneficiary of yours is vulnerable or disabled please contact us to arrange for one of our Consultants to visit you and discuss the benefits of such trusts.

We have met some prospective clients over the years who have decided to leave their estate to their fully abled children on the basis that these children will “look after” their vulnerable or disabled sibling. This is usually an unwise strategy. If one or more of the fully abled siblings divorces or dies before the vulnerable or disabled child dies then the fund can disappear, leaving the vulnerable or disabled child without “their fund”.

beware

Family executors beware

You may have read articles about fraudsters who manage to insert their own bank details into perfectly legitimate requests for bank transfers over the internet. You may have also read our articles about the liabilities that Executors face when carrying out Estate Administration. Furthermore, we have highlighted the little known problem that executors face because they must pay any Inheritance Tax that is due before HMRC will give a clearance certificate which allows a grant of probate to be obtained and estate assets to be gathered in.

An Essex couple has lost £120,000 after sending, by bank transfer, the money to an account that they believed belonged to their Solicitors. This sum represented the Inheritance Tax that was due on the husband’s grandmother’s estate. Unfortunately, the email that seemed to contain the Solicitor’s bank details was actually sent by a fraudster who had inserted their bank details onto the email.

The couple instructed their bank to send the funds to the Solicitor and included the bank sort code and account number. The bank paid the funds even though the account name of the payee did not match the name of the firm of Solicitors. The bank is saying that they carried out the instruction as advised.

What is even more galling for the executors is that after the funds were transferred (to the fraudulent account) the fraudster sent the Executors a receipt by email which seemed as though it had been sent from the Solicitors. So the Executors thought they had a legitimate receipt for the funds.

The matter only came to light a few days later when the Executor telephoned the Solicitors and asked for a written (as opposed to email) receipt. It then became apparent that the account to which the funds had been paid was not the Solicitor’s account. Urgent checks were made regarding the account to which the funds had been sent but the funds had been withdrawn and the fraudster had disappeared.

There are two banks involved and a Solicitor, but nobody wants to accept any liability. Executors are personally liable for any losses to the estate and so this couple have had to borrow £120,000 to replace the £120,000 that had been lost to a fraudster.

Never trust an email containing bank details. Always telephone the person you want to pay and check bank account details directly with them before you send any money.

married

We do not need a Will or Lasting Power of Attorney because we are married. Right or Wrong?

Will

A survey conducted by Will Aid shows that around half of married couples in the UK do not have a Will. This may be because many people think that as spouses, when the first spouse passes away, the surviving spouse will automatically inherit their estate. However, this is not always the case.

Any assets that are not owned jointly between spouses will not necessarily be passed to the surviving spouse in cases of intestacy (the name given to dying without a Will). If you are a married couple with children, the rules of intestacy state that your spouse will only receive a portion of your estate with the remaining portion going to your children. The amounts distributed may not necessarily be how you would have liked your estate to be divided. To find out more about intestacy, please click here.

Tax benefits – Spousal exemption

Spouses can pass assets between each other in life and by Will to an unlimited amount without any Inheritance Tax consequences. If you are married and die without a Will then you die intestate and in certain circumstances your children will receive part of your assets and not your spouse. This can mean that your estate might have to pay some inheritance tax. So instead of these funds going to your surviving spouse they go to the tax man.

Next of Kin – Lasting Power of Attorney

The term “next of kin” is commonly used and there is a presumption that the person you identify as your next of kin has certain rights and duties. Health professionals should always consult a next of kin, but the next of kin cannot sign or consent to, for example, care plans, end of life plans or other treatment options. This is a very misunderstood area of the law. They do not have the legal authority to consent, unless they hold a Lasting Power of Attorney or obtain an order from the Court.

Most people think that there are no problems if they hold a joint bank account with their spouse and one of them loses capacity. Ask your bank “What happens with my joint accounts if I lose mental capacity?” Here as an example is HSBC’s reply: “If we are notified that you have become incapable of managing your accounts, any joint accounts you hold will be inhibited unless a third party can present us with a registered lasting or enduring power of attorney or until we receive a Court of Protection order appointing a deputy to manage your accounts. Some pre-authorised payments, for example mortgage or utility bill payments, may continue to debit the account while it is inhibited.”

If you are married you should take advice concerning Wills and Lasting Powers of Attorney. Please start this important process by booking a free appointment with one of our experienced consultants. Please click here or telephone 01732 868190.

guardianship

Guardianship

Whilst the importance of having a Will is becoming more recognised, a study conducted by Will Aid has revealed that 57% of parents with young children have not got Wills in place yet.

Whilst many associate Wills with the distribution of money and property, they can also be crucial for any parent to create as they can include a special guardianship clause providing for the welfare of your child in the event that your child is left without a parent before they reach the age of 18.

A guardian has parental responsibility for the child. This entails them making crucial welfare decisions for your child, such as, for example, educational and medical decisions. Whilst this may be a situation you have discussed with your partner, family and friends, without a guardianship in your Will, it could be left to the courts to decide who becomes the guardian of your child/children. And that may not be what you would have wanted.

Please click here for more information on choosing a guardian for your child/children.

At Casey & Associates, we can also advise on how best to provide for your child/children financially as well as advise you on how to ease the financial burden on the guardian you chose. This can be done via a range of trusts and/or legacies in your Will. By setting up a trust in your Will and leaving a letter of wishes to your trustees, you are able to advise your trustees on how you would like any funds to be used for your child’s/children’s benefit. For example, you may wish the funds to be used for your child/children’s education, or you may wish for funds from the trust to go to the guardian(s) for maintenance costs. Alternatively you may wish to leave a legacy of money to your chosen guardian(s) on the stipulation that they do become the guardian(s) for your child/children.

Every parent wants the best for their child and at Casey & Associates we want to help give you the peace of mind that you have done everything possible to provide for your child should you no longer be here to do so.

To meet with one of our trained Consultants to discuss a guardianship in your Will, please click here.

remarried spouse

Are you a surviving spouse who has remarried?

If you are a surviving spouse and you have remarried we may be able to help you reduce your inheritance tax (IHT) liability by up to £130,000 using specialised Estate Planning.

You may well have seen articles in the press this year suggesting that discretionary trusts are now not best advice because of the new “Residence Nil Rate Band”. However, in certain circumstances they can still be very useful.

Let us take Mr & Mrs Smith. Before they married Mr Smith was a divorcee and Mrs Smith was a widow. Mr & Mrs Smith are not interested in trusts and Estate Planning and give instructions to create simple “Mirror Wills”. Mrs Smith dies first. Mrs Smith leaves her estate to Mr Smith. When Mr Smith dies in December 2017 leaving the entire estate to the children and stepchildren the value is £1,275,000. Current allowances mean that the taxable estate is £425,000 and the IHT to pay is £170,000.

However, if Mr & Mrs Smith had taken advice from a Casey & Associates consultant their IHT liability might have been much less. The advice is for their Wills to contain a trust on first death. Mrs Smith dies first and her executors use a transferable allowance from her first husband against the trust. When Mr Smith dies in December 2017 leaving the entire estate to the children and stepchildren the value is £950,000. It is lower in this example because £325,000 was transferred into trust when Mrs Smith died. Current allowances mean that the taxable estate is £100,000 and the IHT to pay is £40,000 which is a saving of £130,000.

If two surviving spouses remarry each other, we can potentially reduce their total IHT liability by up to £260,000.

The above are examples of how well-structured Wills backed up with Estate Planning expertise can assist our clients.

If you are a surviving spouse who has remarried, please click here or telephone 01732 868190 and we will arrange for a Consultant to visit you. We do not charge for visiting you and discussing your situation.

Problem = Inheritance Tax due before funds are available ~ Solution = House in Trust

When a person dies the executor must value the estate and report the value to HMRC. In an ever-growing number of cases Inheritance Tax (IHT) may be due. Understandably, the IHT must be paid to HMRC before a receipt is issued. It is a little-known fact that the receipt from HMRC is required as part of the grant of probate process. The executor cannot call in assets without the grant of probate. A “chicken and egg” situation results. The IHT needs to be paid but money from the estate is not available until the IHT is paid.

If the estate contains cash then the executor can agree with the bank holding the funds to pay HMRC directly. But if the bulk of the value of the estate is in the family home then potentially the situation is more difficult for the executors. In certain circumstances HMRC will accept payment over ten years but interest applies to the outstanding tax. Sometimes the executors or family raise a short term loan or even pay the IHT themselves.

One way round the problem is to place the family home in a special type of trust. The house is, therefore, outside the estate for probate purposes and the trustees (usually the children) can sell the property once both parents have passed away. Using this special type of trust means the executors (usually the children) will have the funds from the sale of the house to pay HMRC so that HMRC can give the receipt that allows the grant of probate process to begin.

There can be additional benefits of using this type of trust such as, in certain circumstances, ring fencing the family home from Long Term Care fees assessment and even protecting some or all of the family home from “sideways disinheritance”. Sideways disinheritance is when the surviving spouse (or civil partner) remarries in later life and then dies before the new spouse (or civil partner). Some or all of the family home can go to spouse (or civil partner) number two thus disinheriting the children of the first and usually lengthy marriage (or civil partnership).

This special type of trust does not directly save inheritance tax. However, in certain circumstances, when combined with another type of trust IHT liability can be reduced.

Whether you are single or a couple, married (or in a civil partnership) or unmarried partners, and would like to find out how specialised trusts for the family home might be able to help you then please click here or telephone 01732 868190 and we will arrange for a Consultant to visit you. We do not charge for visiting you and discussing your situation.

dementia

Dementia

Dementia has overtaken heart disease to become the most common cause of death in England and Wales. Researchers have recently revealed that by 2040, over 1.2 million people in England and Wales are predicted to have dementia. This is a significant rise from the 800,000 people today. Whilst there is more awareness and better diagnosis now than ever before, the increase is largely due to the fact that we are now living longer.

It is vital to get your affairs in order to make things easier for your family if you lose capacity.

With the rise in dementia, Lasting Powers of Attorney (LPAs) are becoming increasingly more crucial. Former Home Secretary Jack Straw explains: “We all know how important it is to plan for the future. Having a Lasting Power of Attorney in place should be as common and natural as making a Will.”

LPAs allow those you trust (usually close family) to assist you once you have lost capacity. There are two types of LPA; Property & Financial Affairs and Health & Welfare. You can choose who you wish to nominate to act as your attorney (or attorneys) for each LPA.

Once registered, these documents ensure that should you find yourself in a position where you are not sound of mind, there are people you trust able to act for you.

It is important to create your Will and LPAs whilst you still have mental capacity. Waiting until “nearer the time” can have disastrous consequences.

Determining whether you have mental capacity to give instructions for a Will and LPA can require specialist help. We can provide that service, if required.

Should you lose mental capacity without creating a Lasting Power of Attorney, your family may have to apply to the court of protection in order to obtain a deputyship. This can be an extremely long and costly process and can be stressful for your loved ones at an already difficult time.

Once you lose mental capacity, there are not really alternative options for creating a Will. Although a court might agree to a Statutory Will in certain special circumstances. Should you lose mental capacity without creating a valid Will, your estate will probably be distributed according to the laws of intestacy. Partners receive nothing under these laws and contrary to general understanding the surviving spouse may not receive everything. In fact, there can be tragic situations where the surviving spouse has to go to court to try and obtain funds from trusts that are holding funds for young children.

You might not be able to beat dementia but you can plan whilst you still have capacity. Don’t delay, act today! To arrange for a Casey & Associates Consultant to visit you to discuss Wills and LPAs, please click here.

executors trustees

Choosing your Executors and Trustees

Where it is appropriate we recommend to clients that they appoint family members to be executors and trustees in their Will. However, the duties of Executors and Trustees can be made more difficult by the beneficiaries of the Will and so sometimes it is prudent to appoint a professional as the following cases we have come across highlight.

Beneficiaries remove Executor:

The Will left a “right of occupancy” in property Z for person A for life. On the death of person A property Z was to be distributed amongst three charities. The charities involved communicated with the Executor to ascertain whether person A would be living in property Z for life and the age of person A. The executor made available a letter to the charities which was allegedly from person A stating her age and that she wished to remain in property Z for the rest of her life. On further investigation the charities discovered that person A lived elsewhere and it was, in fact, the Executor who was living in property Z.

The charities went to court and the Executor was removed. The Executor was liable for the costs involved. Property Z was sold and the charities received the funds.

Funeral arrangements, celebration of life and costs:

The deceased had made it known, verbally, that she wanted a simple low budget funeral. One side of the family were happy to honour the wishes of the deceased. However, the other side of the family wanted a lavish celebration of life. The total cost came to over £9,000. They assumed that this would be paid for from the Estate. Without the agreement of all of the beneficiaries this is not the case. So the family members who organised the lavish celebration had to bear the cost themselves.

If the testator had left a simple Letter of Wishes to Executors then the whole family would have been able to honour the wishes of the deceased. So the split that has developed because of the lavish celebration of life arrangements, and subsequent argument regarding costs, could have been avoided.

Trustees must agree:

A second marriage can mean that trustees are appointed to a discretionary trust fund where step-relations are both trustees and potential beneficiaries of the trust. This can cause conflict, developing a rift between the step-relatives who had got on well with each other when the testator was alive. If the trustees cannot agree on distribution they have no option but to go to mediation or ultimately court for directions.

If you are an existing client and the above is relevant to you please contact us on 01732 868190 for advice.

If you are not yet a client and would like to give instructions to make a Will please contact our appointments team on 01634 372655 or click here to arrange an appointment. If the above is relevant to you please discuss this when our Consultant visits.

The pitfalls of writing a do-it-yourself Will

The number of people creating Wills is (slowly) on the rise. One way to create a Will is to write it yourself. However, if you do decide to create a DIY Will there are a lot of pitfalls. It is necessary to make sure that any phrase you use cannot be ambiguous.

Here are some examples:

  • I leave my estate to Cancer Research. The problem here is that there are 84 charities with the words “Cancer Research” in their title.
  • I leave one thousand pounds to each of my grandchildren. What I do not realise is that the stepchildren of my children are not my grandchildren even if I treat them as if they are.
  • I leave my estate to my cousin John Smith. After I die my executors find I have two cousins called John Smith.
  • I leave my estate to my son John and my daughter-in-law Jean and their children in equal shares. John has a child from a previous relationship, Jean has a child from a previous relationship and John and Jean have three children together. Does John get a third, Jean get a third and all the children get a third split between them? Or does everyone get one seventh? Perhaps John gets one fifth, Jean gets one fifth and the three children they have together get one fifth each.
  • I give £10,000.00 to the President of my local golf club. Who receives the gift? The President when I wrote my Will or the President when I died? Is the gift for the President personally or for the golf club itself? Which golf club? I played at one when I wrote my Will but another one when I died.
  • One of our Consultants has seen a handwritten Will that stated, “I leave ten thousand to my friend …..”. Unfortunately, the person creating their own DIY Will had forgotten to include the word “pounds” so the gift would have failed.

Here at Casey & Associates we have developed systems to reduce the risk of a Will being ambiguous to almost zero. Each Will is created by person A, checked by person B and then audited by person C. We do everything possible to make sure that there are no ambiguities.

Wills can be rejected by the Probate Service if the pages are not attached correctly. Furthermore, the person signing the Will and the witnesses must follow a strict procedure.

It is very upsetting for a family if a Will is held up in Probate (or even worse if it is declared not to be valid). We specialise in creating Wills (as well as Lasting Powers of Attorney and trusts) and hope that you will agree that it is prudent to arrange for a specialist to write your Will for you.

Your Will is one of the most important documents you will ever create. Why risk a problem? If you are thinking of creating a new Will or updating an existing Will please click here to arrange an appointment for one of our consultants to visit you. We do not charge for an appointment. Furthermore, depending on your circumstances we may be able to write a Will that saves you some Inheritance Tax.

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.