Living Wills

Living Wills are also known as Advance Decisions and are effectively statements of intent as to how you want to be treated when it comes to life sustaining decisions.

Here is a link to today’s BBC real story that rather hammers home the point. The point being if you want some control over how you die write a Living Will, and it doesn’t matter if you are 18 or 80, it still applies to you.

“Doctors wouldn’t let my sister die”

What’s more you don’t need to pay us to do it for you. The charity Compassion in Dying has an excellent website that allows you to complete an Advance Decision free of charge. Here is the link…

Compassion in Dying

Of course, it is not for everyone. Some of you may not want to make any Living Will. That’s fine.

So how does someone know you have an Advance Decision in place?

You should supply your GP with a copy and they have a system that would log it and call it up if required. Even better, carry an Advance Decision card in your wallet with your credit cards. This can be printed out from the Compassion in Dying website.

Another tip is to regularly re-sign the Advance Decision, this shows that you are reaffirming your decision and commitment to it.

 

How to avoid Inheritance Tax

Politician Roy Jenkins in 1986 stated “Inheritance Tax, is broadly speaking a voluntary levy paid by those who distrust their  heirs more than they dislike the Inland Revenue.”

Like our friend Boris, I would say he liked to be controversal! The point he was making is that there are a multitude of different ways to avoid Inheritance Tax if you are thoughtful enough to plan ahead.

I recently acquired a great handbook published by SIFA called “Financial Solutions for Estate Planning” 2017. This is designed for financial advisers and it details all the financial products and schemes available to legally avoid Inheritance Tax. I would point out the booklet is over twice as thick as my 2011 version, so there is no shortage of choice.

Whatever your views, it happens, and on an industrial scale.

My point is, you should talk to a financial adviser because the money you spend on advice can return to you or your ultimate beneficiaries 100 fold.

Before you start any financial engineering, you should write a Will or update your Will with a will writer that considers these aspects. There are mechanisms that you can use in your Will that can potentially save huge amounts of Inheritance Tax.

 

 

 

 

 

POSSIBLE HUGE CHANGES TO WILLS AND WILL WRITING

The Wills Act 1837 is now 180 years old. Is it time for us to move on from the Victorian era and look again at whether this is all really working? Well the Law Commission thinks so…

So is the Last Will and Testament of the future going to be a video, a text, or a note on your Ipad?

Indeed all this is up for discussion. Some commentators are saying “Hold on a minute, how do you test whether that person had mental capacity or indeed testamentary capacity? Is this going to create a glittering Wonderland for lawyers as the level of disputes goes sky high?”

Mental capacity is a key issue. Access to will writing is another issue.

There are a thousand other things to consider as well. Other countries will be watching closely to see how radical any reforms become. Various states in Australia such as New South Wales have addressed the issue of minors under 18 being able to write a Will, so 16 year old internet entrepreneurs and others can, with Court permission, write a valid Will. I suspect that is coming here soon as well.

The Law Commission review is covering a wide variety of topics, however they are somewhat skipping over the issue of digital assets.

Digital assets include websites, music purchased online, valuable domain names, blogs, etc. This can be dealt with well by talking to a professional will writer, but some things will be a blurry area until  other areas of the law (often foreign laws) become clearer.

We are optimistic that the changes will make things better and easier but much care is needed.

Meanwhile, let us agonise over the changes. Just get a valid Will in place now, it’s not that complicated….

ACT NOW!

 

I remember back in my days in financial services we had a rubber stamp in the office with a red ink pad that said “ACT NOW!” and where necessary we used to stamp it on client letters.

Over the last month I have seen the consequences of not acting with regard to Lasting Powers of Attorney and leaving it to the last minute in hospital with considerable difficulties. I would urge you whatever age you are to consider having a “notional heart attack” now.

Is your Will up to date?

Is your Lasting Power of Attorney in place?

What about all your internet passwords?

Have you made any contingency plans if suddenly you are not able to act?

Some years ago we also saw a real heart attack situation where the father never expected to suddenly die. He never changed his Will, like he told his children he would, and it created a severe family rift.

I never bullied clients to take action, but sometimes I feel I did them a dis-service. So please if you are advising clients, please gently get them  to take appropriate action before it’s too late.

Testamentphobia!

This is not in the dictionary. It is my definition of the fear of writing a Will. The bizarre situation is that there are people that have a fear of writing a Will. I don’t get to meet them often, but I do talk to them!

The fear seems to run along the theme that if they write a Will they will suddenly drop down dead. Some of us have a fear of dying, but in it’s extreme version this is a real and serious condition and is known as death anxiety or thanatophobia (that is in the dictionary). I would not deny this can be life-limiting and may require therapy.  Sometimes a married or partnered person is not writing a Will simply because their partner has this fear, the net result is that neither of them have Wills!

39822932 - be brave and face your fears text written on notebook page, red pencil on the right

I want to assure you the process of writing a Will is painless and sometimes even a pleasure. You don’t even have to go to a scary old Dickensian lawyer. Most people are relieved to have at last put their affairs in order.  So please think about your family, face your fears and we will be gentle and understanding.

 

 

 

Effect of marriage and divorce on Wills

Firstly Divorce…

It should be noted that a will is NOT revoked on divorce, BUT

  • Any provisions appointing the former spouse as an executor or trustee take effect as if the former spouse had died.
  • Any property or interest in property bequeathed to a former spouse passes as if that former spouse had died.
  • Any gift to the former spouse lapses.

41099799 - portrait of a displeased couple sitting back to back on couch

Learning point. If anyone gets divorced they should rewrite their Will as the above can have unintended consequences. Don’t assume that the divorce lawyer will have considered updating the Will. In our experience this doesn’t happen. More often than not, the divorcee wants to get this changed if only to make a clean break from the past.

Marriage.

  • Under s18 of Wills Act 1837 (our favourite bit of legislation) a will is automatically revoked on marriage.
  • However under s18(3) you can make a will in “contemplation of marriage” to a certain named person. That Will is not revoked by marriage if the intention not to revoke the will is clear.

17161210 - just married couple sharing romantic moment

Learning point. One day someone can have a valid will, next day no valid Will, simply by marrying. We all see the point in this, as the new spouse should be considered. However in the modern world couples that are living together need to ensure that if they ever have a thought of marrying then they should write a will in “contemplation of marriage”. When you are enjoying wedding plans you generally don’t think about your death! The same applies to second marriages. A new will is not something that would be on your mind.

All of the above applies to same sex marriages despite the photo images!

In summary, any change to your relationship status, should be accompanied by a review of your Will. Simple stuff, often overlooked….

Income Withdrawal and Powers of Attorney

The recent stockmarket volatility after the referendum has focused the importance of active management of investments and pension funds to maximise returns and prevent losses.

Annuities rates are now very low and the trend is downwards. This means that many more retirees are creating Income Withdrawal accounts with their pension funds.

However in order to manage your investments and pension income it is a good idea to have good brains at work and that is not possible if you have lost mental capacity in retirement. Unlikely as you may think now, do you know that you will never be affected by stroke or dementia?

To avoid the problem you should consider setting up a Lasting Power of Attorney now for your property and affairs if you haven’t already done so. You can appoint in the document a person (known as an attorney) to act for you, and you can choose someone with investment expertise or your trusted adviser. Or more simply when you draw up the document you can express your wish that with regard to any Income Withdrawal accounts that your chosen attorneys review your pension fund each year with your financial adviser.

How do we know this is a problem?

Because we have seen situations occuring where there is no Lasting Power of Attorney in place. The alternative which is an application to the Court of Protection is expensive and time consuming and you will not get a chance to choose the attorneys who act for you. We would recommend you take control and act now.

Executors – Who to choose?

Solicitors tend to make strong arguments to have professional executors so the Will is executed professionally. On the other hand Will writers tend to allow the client to choose family members as executors and only choose professionals if no one comes to mind.

So who’s right?

Well I would argue that both are right. The Will writers focus on reducing costs to the testator. Professional executors can be expensive charging a percentage of the estate, bank trust companies often charge in this way. Solicitors, once named in the Will as executors are reluctant to step down after the testator’s death if requested to do so by the beneficiaries. Some even charge a fee for doing so or simply refuse to be removed. But why would you want to remove them? Solicitors often charge on an hourly basis for this work and it is deducted from the testator’s estate, so beneficiaries if they have the time and inclination to act themselves may request this. If the estate is not being dealt with promptly this can be the source of disputes hence a request to remove solicitors as executors.

On the positive side professional executors can avoid the following problems

  • Dispute between lay executors delaying matters potentially creating a stalemate or worse still a family rift
  • Executors not fully understanding their responsibilities under the various Trustee Acts
  • Not setting up trusts, or understanding the role of trustees
  • Not understanding the required probate and Inheritance Tax forms
  • The executor(s) may fall ill or loose mental capacity
  • Liability can fall on the executors if they act negligently or if they submit a fraudulent Inheritance Tax return to HMRC they can be imprisoned.

So what are the advantages of having family as executors?

The executors can in fact be the beneficiaries. So a classic example is Mr & Mrs Jones with two adult children choosing the two children as their executors and also being the beneficiaries.

The children will have a keen interest in sorting out the estate quickly and efficiently and if they have some skills in organisation and administration that is an advantage. Because they are likely to know all the beneficiaries it is generally easier to locate them.

Of course, lay executors such as these adult children can seek the advice of professionals from outset or when they find themselves out of their depth and can hand over to a professional executor or accept their help on an ad hoc basis with them charging accordingly. But note they can shop around for the best professional in terms of costs and skills.

Mix and match. There is nothing to stop a testator choosing BOTH family and a professional executor to act as executors. This may solve some of the problems mentioned above, but it will come at a cost as the professional has to be paid and doesn’t prevent executors being in dispute with each other.

16924691 - aren't you glad we had this meeting to resolve our conflict

Inheritance Tax planning after loss of mental capacity

Many advisers ask this question, and the truth is that planning is severely restricted but sometimes possible.

 

Large lifetime gifts

Firstly the advise6498081_sr must consider the position of the person who has lost capacity, let’s call them P. Do they have a Power of Attorney in place? If not, has anyone been appointed as a deputy by the Court of Protection? To what extent have they lost mental capacity?

For example P may still have the mental capacity to understand and approve a simple lifetime gift, but not have the mental capacity to understand and approve a sophisticated investment such as a Discounted Gift Trust. As such, it would be prudent to request and record a mental capacity test prepared by a professional at the point of making such a gift. Of course, P could fail the test.

Hereafter we will assume that P does not have any remaining mental capacity and that they have an appointed attorney under a Lasting Power of Attorney for property and affairs.

The attorney must act in Ps best interests. So it would appear to be logical that there is no way that gifting monies or assets to others could possibly be in P’s best interests. However if an attorney or deputy want to present a case to make a lifetime gift or a specific investment for Inheritance Tax planning they can ask the permission of the Court of Protection.

The Court of Protection will take into account the following:

  • The information presented to them
  • How much the gift is in relation to the size of their estate
  • Will there be enough financial resources remaining for P for the rest of their life?
  • Will the gift change the treatment of beneficiaries bearing in mind the contents of the last Will?
  • Had P done any Inheritance Tax planning before loss of mental capacity?

The Court may agree that making a gift is in P’s best interests, bending the “best interest” principle somewhat. However there may be situations where it is not worth making an application to the Court, for example where P’s wealth has been derived from a successful personal injury payment which was meant to provide for them only.

What if the attorneys just go ahead and make lifetime gifts?

In serious cases this may be regarded as fraud and a matter for the police. Alternatively the attorneys may be asked to pay the money back personally, or at least have their appointment as an attorney revoked. Not good options if the gift is likely to be contentious.

 

How can an attorney create, change, or update P’s Will for Inheritance Tax planning?38697289_s

Answer, they can’t. The attorney cannot create, change, or update a Will. However once again an application can be made to the Court of Protection for what is known as a Statutory Will. This can be a new Will that can take advantage of IHT planning.

The Court takes this very seriously and is likely to involve the Official Solicitor. The fullest information should be presented similar to the bullet points above for lifetime gifts. However anyone who may be disadvantaged by such a Statutory Will that would benefit under the previous Will or intestacy can object to the application.

Incidentally all these actions involve expense, and you should consider the legal costs and where the burden of the costs will fall. In some cases however it will definitely be worth the trouble.

So in conclusion, the moral of the story is to ensure that elderly clients act while they have their full mental capacity and deal with these issues as urgent before it becomes impossible.

 

Lasting Powers of Attorney – The Facts

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In later life we expect to perhaps become forgetful, but none of us believe that we could lose our mental capacity, because those sorts of things happen to other people, not us. After all ” I’m only 50, I’m only 60, I’m only 70″ etc. Mental decline may occur slowly over time or by a sudden event such as a stroke or accident. Of course you may be lucky and keep your mental capacity right up until your eventual demise.

However if we lose mental capacity and decisions need to be made about our property and affairs someone needs to make an application to the Court of Protection to act on our behalf. That someone may be a member of your family or even the local authority to extract the cost of any care. These appointed people are known as deputies.

This process entails Court fees of various types totalling approximately £800 and lawyer’s costs averaging £1500 from your own resources. A full statement of your financial affairs is submitted to the Court. In addition there will be a deputy’s charge for running your affairs and accounting up to £800 pa.  At the end of that process it will not be someone you chose to act for you!

The better alternative is to act in advance and prepare a Lasting Power of Attorney (LPA). While you have your mental capacity you can prepare the document to appoint a person or people to act for you that you choose in the event of loss of mental capacity. These people can be family or friends, but should of course be people you can trust.

What are the two types of LPA?

The most commonly executed LPA is the type for Property and Affairs which as the name suggests allows your chosen attorneys to undertake transactions with regard to your property and affairs, from the mundane day-to-day cash requirements all the way up to significant transactions such as selling or buying a home for you.

The less common, but arguably equally important, is the LPA for Health and Welfare. This allows your attorneys to act for you, organising your day-to-day care, including arrangements for medical, eye, or dental care. This document also gives you an option to choose whether your attorneys are to be involved with decisions about life sustaining treatment. This document can also be very important in allowing your attorneys to act in your best interests if you are involved with local authority care, asking the right questions and getting the best care for you.

Can my attorneys overrule me by saying “I’m dotty”?

The Mental Capacity Act has clear guidelines that are explicitly spelt out in the document. Your attorneys must assume that you can make your own decisions unless they establish that you cannot. Also your attorneys cannot treat you as unable to make decisions even if they judge those decisions to be unwise.

So in summary you should always be in control until it is established that you cannot make decisions.

Can I use the LPA when I have full mental capacity?

Providing you have not put any restrictions in the document the answer is Yes. This can be useful if say for example you have limited mobility or simply in old age. You can ask your attorneys to perform certain tasks and report back to you with the outcome. An example may be to visit a local bank or building society with regard to the maturity of a fixed rate bond.

How can I get an LPA in place?

You can prepare the documents yourself by going to the website of the Office of the Public Guardian at www.gov.uk/power-of-attorney or you can let a professional do the work to ensure the forms are completed correctly.

If you can ask Will You Ltd to prepare the documents for you here are the advantages :

  • We visit you and explain the Lasting Power of Attorney
  • We can explain to your chosen attorneys their role if they need  guidance
  • We complete the paperwork for you to sign
  • We offer to guide you through the signing process
  • We register the documents on your behalf until to have a valid registered document