Have you made a will?

Why bother?

Most people agree that it is vitally important to ensure that you take care of the people that you leave behind and yet put off writing a Will because they don’t want to think of what will happen when they die.

By preparing a Will you are making sure the right people inherit your estate. You will also be able to take steps to ensure that as much of your wealth as possible is passed on to those you love – which would not necessarily happen if you do not have a Will.

What is involved?

First and foremost you need to decide who gets what! Whether this is your first Will or you are updating an earlier one, it is only by having an up-to-date Will that you can feel safe in the knowledge that your wishes will be carried out should anything happen to you. This is particularly important if you have step children or dependent relatives who you want to make sure are looked after when you die.

Other Important decisions to consider are:

• Appointing a Guardian to take responsibility for any children should you die before they have reached the age of 18.
• Set out any funeral wishes
• Appoint the person who you trust to have the responsibility (and legal liability) to carry out the wishes set out on your Will.
• Consider Inheritance Tax Planning (we have a specialist solicitor to advise relating to this)

We will guide you through what you can cover in your Will and make sure your aims are achieved. If appropriate we will also be happy to act as your Executors so that your family do not feel burdened with this responsibility at a time when they are grieving.

What happens if you do not have a Will?

Many people do not realise that without a Will in place the law decides how their money and possessions are distributed following the Intestacy Rules. You lose the right to choose. Not only could this mean that the result is not what you would have wanted but it may also cause future legal problems for those you love and who you have looked after.

Use the list below to see some of the problems that might affect your situation without a valid Will in place and ask yourself how it might to apply to your situation.

• No will

  You give up the right to decide what happens to everything you own if you do not have a will. Instead the intestacy rules apply and you will also have no say over who is appointed to distribute your property under these rules.

• Will is not valid

  None of your wishes may end up being carried out if your will is made without using a solicitor who has ensured it is legally valid. Instead either an older will or the intestacy rules are likely to be applied.

• Not married

  Your partner may get nothing under the intestacy rules if you and your partner are not married or not in a registered civil partnership. This applies however long you have been together. This may force them to bring a legal challenge.

• Separated not divorced

  Your ex-partner may get everything, with nothing left for the rest of your family. This can happen under the intestacy rules if you had been married or in a civil partnership and have separated but not divorced or had a judicial separation.

• Home over 200k

  If you have children, the family home may have to be sold rather than be left for your husband or wife or civil partner to live in. This can happen under the intestacy rules if your home is part of your estate and with other assets is worth more than £250,000 (after mortgage). They will only get £250,000 plus half of the balance and your children will receive the other half. This may force a sale of your home.

• Key people left out

  Your friends and your favourite charity don’t get anything.Even your children and grandchildren may get nothing under the intestacy rules.

• Legal problems for family

  There can be huge legal problems for your family.With no valid will, those left out may need to take legal action to apply for financial provision. Sometimes without legal action the intestacy rules can even mean your assets go to the government (‘the Crown’).

 

A Missed Oppportunity

At Quality Solicitors Moore & Tibbits, alongside dealing with Wills and Lasting Powers of Attorney, we have a specialist team that advises on care fees and who should pay them. Often many clients seeking advice in this area ask about gifting their property to their children whilst they are still alive.

This may be for a number of reasons, including:-

• Recognising the love and affection you have received from others.
• In recognition of a moral obligation, for example when someone has devoted themselves to caring for you
• In recognition of a financial obligation, for example where someone has contributed directly or indirectly to the cost, upkeep or improvement of the property
• Because you fear a dispute arising over the ownership of the property after your death

Gifting assets however can be very problematic. It is no longer lawful to transfer your home into your children’s names and continue to live there for the purpose of avoiding future care fees and even if you have other reasons (like those set out above ), you may still encounter significant problems. If you do need to pay care fees in later life this will be treated as an intentional deprivation of assets and you will be liable for the fees as if you still owned the property yourself. Your children may also become liable for capital gains tax when the property is sold.

Case Study

Mr and Mrs Shore jointly own the family home. Mr Shore’s wife has recently been diagnosed with Parkinson ’s disease. He is worried that in the future they will need to pay for care for Mrs Shore and he is concerned that if he were to die before his wife she may not be well enough to stay in the family home.

Both Mr & Mrs Shore have children from previous marriages. Mr Shore is concerned that if Mrs Shore did need to move to a Care Home and the house was sold, the children would receive very little inheritance.

Mr Shore wanted to know if he could perhaps gift his property to his children now, so that if they did have to pay for care at a later date he would have “secured” the children’s inheritance as the house would no longer be owned by himself and his wife.

So what, if anything could Mr Shore do?

If you are a couple and you jointly own your home (as Mr & Mrs Shore do) you can legally separate your individual shares in the home by completing a Notice of Severance. This creates two distinct shares in the family home and means that if Mr Shore were then to prepare a Will, he can leave his half share in a Trust which will not only benefit Mrs Shore but also, ultimately his children.

The benefit of this is that the Will protects half of the value of the home and as Mr Shore’s share is not automatically passed to Mrs Shore it will not then be considered as part of her assets should they eventually have to pay for her care. In his Will however, Mr Shore will still direct that his wife remains living in the property as long as she would want to and indeed can sell and move to a different property should she want to do so.

If Mr Shore did not however prepare a Will, or simply did a Will leaving everything to his wife, his half share in the property would not be protected.

 

Legal Meaning

These are some of the words and terms you may encounter:

Attorney

A person appointed under a Lasting Power of Attorney. An Attorney has the legal right to make decisions on behalf of the Donor as long as those decisions are within the scope of their authority.

Court Appointed Deputy

A person appointed by the Court of Protection. A Deputy has the legal authority to make decisions about personal welfare and/or property and financial affairs.

Court of Protection

The Court of Protection is a specialist court for all issues relating to people who lack capacity to make specific decisions.

Office of the Public Guardian

The Office of the Public Guardian is a Government department sponsored by the Ministry of Justice. It is responsible for supervising and keeping registers of Deputies, Lasting Powers of Attorney and Enduring Powers of Attorney and investigating complaints about Deputies and Attorneys.

Best Interest Decision Maker

A decision maker is a person who is responsible for deciding what is in the best interests of a person who lacks capacity.

Best Interest Decisions

Any act done or decision made on behalf of a person who lacks capacity must be done or made in their best interests.

To find out more or to book an appointment for your free initial consultation, do not hesitate to contact a member of our team or call us on 01926 491181.