Category Archives: Will writing

Business Wills

What exactly is a “Business Will”?

Anyone that is in business can write a Will that covers their business. The business can be in the form of a sole trader, a partnership or limited liability partnership (LLP), or a limited company.

In that Will, you don’t even need to mention the business if your intention is that it will form part of your estate and be distributed to your chosen residuary beneficiaries.

By contrast, you may want any business or shares in a business to be dealt with differently. In order to secure Business Relief against Inheritance Tax (formerly called Business Property Relief) you may want a trust to be set up by your Will on your demise, once again for your chosen beneficaries.

Is a Will enough, and does it constitute a “Business Will”?

Willing your beneficaries a business could be willing them a “poison chalice”. It could be that you have given no guidance as to how to run the business, or sell the business. So part of your “Business Will” should be to think about writing some notes and effectively work through the challenges that will occur on Day One after your demise. Those notes could be kept with your Will, or in a place where that can be accessed by the right people quickly. Take care not to write down any passwords that could release data or monies into the wrong hands.

Minority shares in a limited company may be worthless, or a pile of trouble for the owner of the shares. As part of your “Business Will” you should think about getting in place a cross option agreement maybe as part of a wider Director’s Agreement to protect the value fo your shareholding . This allows the surviving shareholders the option of buying your shares at an agreed figure (or an agreed formula) on your demise. These amounts can be covered by life cover in a company that will pay out allowing your beneficiaries to walk away with cash rather that shares.

The same principle applies to partnerships or LLPs except the agreement is a Partnership Agreement with a cross option included.

So in summary, a “Business Will” is more than a Will. It is a series of planning steps that you can take that means that your beneficiaries will benefit from your hard work rather than leaving them a complex puzzle that they would prefer not to deal with at the time of a bereavement.

5 reasons you may want to review that Will!

Validity

To check it is valid. Has it been signed and witnessed? Often I seen clients that have used a solicitor, paid for the Will, and have only been left with a draft, thinking it’s a valid Will. If you have married or remarried since making your Will, the previous Will is invalid.

Changes in circumstances and family

Not every Will is flexible enough to cope with changes. Have you mentioned specific property? Do you still own that property? Personal circumstances change: marriage, separation, and divorce. Family may come into our lives and leave our lives, for lots of reasons, births, deaths and marriages being an example.

Does it still reflect your wishes?

More importantly, does it reflect what you are telling family that it does? If not, you need to align the two, so as to avoid family disputes after your demise.

Tax planning

Wills were often created in ways to take advantage of the Inheritance rules at the time. The rules have changed. Is your Will written to take advantage of the current tax rules?

Executors

Are the executors you chose still the people that you want to act? If not you need to update your Will.

If you are not sure about your Will or it contains trusts that you don’t understand, Will You Ltd can review your Will free of charge providing you with an A4 page report so you can consider whether there is any need to update your Will.

Do make sure if you have any life assurances that they are put in trust if relevant and for pension funds you have completed a trust form or a Nomination of Beneficiary form. These can be just as important as your Will. Once again we can help you review these items as part of our service alongside your financial adviser.

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.

 

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….

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

Radical changes to Inheritance Tax-The Family Home

The summer Budget introduced a new Family home allowance to start in April 2017.

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Key points

  • The new allowance that is in addition to the existing nil rate band will be phased in from 2017 eventually giving an extra £175,000 allowance to those that qualify.
  • The inheritors must be your children, step-children, or their descendants. Included also are adopted children (as you would expect) and foster children.
  • Wealthier multi-millionaires may not benefit as the allowance is reduced if the net estate (after qualifying liabilities are deducted) is over £2 million. It is reduced by £1 for every £2 that the estate exceeds £2 million. So if an individual had a net estate of say £2.5 million they would not qualify.

 

So here is how it looks for each person:

Existing nil rate band allowance £325,000. (This is transferable between couples.)

From 6th April 2017 additional allowance will be £100,000.

From 6th April 2018 additional allowance will be £125,000.

From 6th April 2019 additional allowance will be £150,000.

From 6th April 2020 additional allowance will be £175,000.

Thereafter it should increase in line with the Consumer Price Index.

So using simple maths you can see that the total allowance for a couple will reach £1 million from 6th April 2020.

 

So what qualifies as your home or the “qualifying residential interest”?

  1. Your interest in a home that has been lived in as your main residence.
  2. If you have more than one residence then your executors or personal representatives can elect which one is to qualify.
  3. A “Buy to Let” property for example would not qualify unless it had been your main residence at some time.
  4. There are various other minor provisions for those living away from home in job-related living accommodation.

 

Example

In 2020, Dave & Samantha jointly owned a home worth £900,000 and had two grown up children. Dave died in May 2020 and he willed everything to Samantha. Because he had not gifted monies in his lifetime or in his Will, he had the full nil rate band (NRB) of £325,000. In addition he has the new residence nil rate band (RNRB) of £175,000. However there is no Inheritance tax to pay at this time because everything has passed to Samantha.

Sadly Samantha died soon after. Happily for the children Dave’s NRB and the newRNRB are transferable to Samantha’s estate. So in total the allowance was £1 million.

Samantha has spent all the remaining family cash on nursing care. Despite the fact that she died in a nursing home and had not lived at home for 6 months, the full allowance was available.

When Samantha’s estate was concluded HMRC collected no Inheritance Tax at all from the estate.

 

Very nice, but what are the problems?

Apart from the political nature of this concession which we shall leave aside, most commentators feel all this is unnecessarily complicated.

As an example, “The additional nil-rate band will also be available when a person downsizes or ceases to own a home on or after 8 July 2015 and assets of an equivalent value, up to the value of the additional nil-rate band, are passed on death to direct descendants.”

This point alone will employ lots of folk in HMRC in lengthy correspondence with executors and PRs who incidentally will need to know about this in order to claim it!

There is much to be ironed out in the legislation, too much to mention here.

One issue that is notably important is that some may have discretionary trust arrangements in your Wills passing family homes and other assets via this route. It looks likely that if you continue to use that route you will NOT qualify for the allowance. Other types of trusts such as life interest trusts and trust for minors and under 25s will be okay.

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Picture :  Executor who missed out on the family home allowance.