Do I really need a Grant of Probate?

If you are preparing to wind up the estate of a loved one, you may not need to apply for a Grant of Probate (or Letters of Administration) during the course of winding up their affairs.

It is a common misconception that when dealing with an administration of an estate, the Executors or Administrators will have to obtain a ‘Grant’. The Grant is required in order for Executors to access the deceased’s assets in order to quantify and ultimately distribute them; and the same applies to property. However, there are certain circumstances where there is simply no need to obtain this:

Article by Kagowa Kuruneri

• Where property is owned jointly, as joint tenants,
• Where other assets are owned jointly,
• Where the estate is a simple estate and does not exceed the Inheritance Tax threshold,
• Where the total value of bank accounts does not exceed £5,000*,
• Where the estate is insolvent.

It is important to note that there may be some parts of the estate that will require a Grant and parts that will not. The moment any asset requires a Grant, it must be obtained with respect to the entire estate, even if some assets have been released prior to attaining the Grant.

If you are unsure whether or not you need to obtain a Grant of Probate or Letters of Administration, or if you more information about Wills and Estates, contact us today via email or LinkedIn.

* Some banks and building societies have their own limits where they will be prepared to release funds without need for a Grant.

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Tel: 01992 422 128

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Email: info@gardenhousesolicitors.co.uk
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Dementia Tax, what can be done about it?

Those with close family members faced with the prospect of requiring domiciliary or residential care, by now, should be well aware of the changes that will affect social care policy. The proposed manifesto will see our vulnerable having to pay for their own care fees if the combined total of their savings and property exceeds £100,000. Granted this raises care fee assessments from £23,250 but, with all things considered is this truly a saving when most assets are tied up in properties anyway? With the housing market as it is today, most people who own their own property will be tasked with paying for their own care fees should the need for care arise. Of course payment can be deferred until death, in which case the deceased’s estate would incur the burden of payment, meaning that leaving a healthy inheritance for the family may soon become a thing of the past. 

Article by Kagowa Kuruneri

Where domiciliary care was not an issue, its successor ensures that certain degenerative and debilitating diseases will attract care fee obligations and others will not, regardless of where care is provided. Does the discrimination between illnesses, geography and means serve any real benefit when the aim is to make care policies fairer?

The worry now is that in order to protect one’s assets or estate, those in need will shy away from much needed assistance until their circumstances are so dire that they require nursing care under the NHS. The other solution would appear to be transferring ownership of assets before care applications are submitted. However, setting aside the fact that it is unclear how such transfers will be treated under the new policy, there are Inheritance Tax provisions that could adversely affect your estate if certain conditions are not satisfied.

At best it is not yet clear whether there will be a way to receive care assistance without losing your property, diminishing the value of your estate, or putting your own health at more risk. However, if you would like to explore the options that are available which would reduce the blow delivered by the “Dementia tax” reach out to Garden House Solicitors today via email or LinkedIn.

www.gardenhousesolicitors.co.uk

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Tel: 01992 422 128

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Email: info@gardenhousesolicitors.co.uk
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Things to consider when preparing Powers of Attorney

It is always advisable to prepare a Lasting Power of Attorney (LPA) because you can never be certain of what the future will bring. An LPA allows you to give someone you trust the legal authority to make decisions on your behalf should you not have the mental capacity to make these decisions on your own, or if you do not want to make certain decisions. For these reasons it is very important that your choice of attorney(s) is a decision made wisely.

What to think about when selecting your attorneys

Article by Kagowa Kuruneri

Spouses and other family members cannot just walk into the bank and access your accounts, even if it is to pay for your care. Without an LPA in place your relatives will have to apply to the court to be given authority to help you in this way, and this can be a long and costly process. 

Depending on the type of LPA you make, your attorney will have the power to make decisions such as where you live and whether or not you should receive or stop receiving a particular health care treatment. If your attorney is managing your affairs they will have the authority to write cheques in your name, sell or rent your property and even carry out your trade or business. Additionally, they will be able to conduct legal matters on your behalf.

Because of the power and responsibilities your attorney will have it is important that you consider the following:

• Bearing in mind their own lives and obligations, is your attorney guaranteed to be able to take on, and manage, the responsibility you will be giving them? How well do they look after their own affairs? 
• Think about the type of LPA you are creating, does your attorney have any relevant background or knowledge that will assist them in making those decisions on your behalf?
• Can your attorney act alone or would it be better to have two or more people working with them to ensure that all decisions made on your behalf have been thought through with the time, care and consideration required?
• Can your attorney be trusted to act in your best interests, setting aside all personal feelings and emotions? 
• How well do you know your attorney? Would you still be comfortable with them making decisions on your behalf regardless of how circumstances and relationships change as time goes by?
• Do you trust your attorney implicitly?

Remember, even though an LPA can be revoked, you have to be deemed to have the mental capacity to be able to make the revocation.

What to think about when selecting your certificate provider

In order to have your LPA registered, you will also need to have a reliable certificate provider. This is a person who can serve as a witness for your LPA and should be able to prove that at the time of preparing your LPA you did so on your own volition and that you understood the nature, purpose and scope of the authority you have granted. Your certificate provider should be able to act independently and possess the professional skills and expertise to provide your certificate. 

Garden House Solicitors specialise in drafting Lasting Powers of Attorney and are happy to assist you with any of your needs or concerns. To arrange an appointment, telephone me on 01992 422 128 or email me at Kagowa@GHSLaw.co.uk.

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Tel: 01992 422 128

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The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Are you thinking of making a living will?

What is a living will?

A living will (sometimes known as an advance directive) is a written statement detailing your wishes regarding health care and how you wish to be treated if you were to become seriously ill. Living wills come into force when you are no longer able to communicate your own choices and can be useful if you have not made a power of attorney. Living wills are legally binding under the Mental Capacity Act 2005. This means that as long as a living will is valid and applicable then any refusal to accept treatment set out within it is legally binding in England and Wales.

Please note that a living will is not the same as euthanasia, but a request in advance to doctors not to give certain life-sustaining treatments. 

Who can make a living will? 

Anyone who is aged 18 years or over and has the mental capacity to do so.

Does a living will need to be signed and witnessed?

If you are choosing to refuse life-sustaining treatment then this must be done in writing and both you and at least one witness must sign it.

Power of Attorney Solicitor Hertford

If you are looking to prepare a power of attorney it is important to consult a specialist who can discuss all of the relevant options with you; give you accurate advice on the implications of each decision and guide you through the process from start to finish.

We are proud to have two solicitors who specialise in powers of attorney, both of whom are Dementia Friends and members of Solicitors for the Elderly. 

We offer fixed fees on all power of attorney packages so that you know exactly what you have to pay with no hidden extras. Our office is in Hertford and we have parking available, but if it is more convenient for you we also offer free home visits within a 20 mile radius. If needed we are happy to arrange to see you outside of office hours. 

There are different types of power of attorney:

• General power of attorney - usually used as a short term measure, for example if you are going abroad for a long trip and need some matters dealt with whilst you are away.
• Property and financial affairs lasting power of attorney (LPA) - this is a document that authorises your chosen attorneys to act for you even if you lose mental capacity. You can allow them to do anything with your money and property that you yourself can do, or you can restrict the way in which they can act for you. 
• Health and welfare lasting power of attorney - this document also allows your attorneys to make decisions for you if you have lost mental capacity. It covers the care and treatment you receive, and you can also decide whether or not you wish them to be able to make decisions in relation to life sustaining treatment on your behalf. 
• Enduring power of attorney (EPAs) - this was the document used until 2007 to give attorneys authority to act even after you had lost mental capacity. Since 2007 it has not been possible to create new EPAs, but valid documents created before that date are still valid. 

For more information or for details of costs please see our website http://www.gardenhousesolicitors.co.uk/powers-of-attorney-and-court-of-protection.html or call us on 01992 422128 to arrange an appointment. 

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The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Inheritance Tax: the basics

When you pass away, your estate may be required to pay Inheritance Tax. This is a tax on the money, possessions and other property you own when you die and also other assets including certain gifts made during your lifetime.

Everyone has an allowance that they can leave tax free. This is known as the ‘Nil Rate Band’ which is currently fixed at three hundred and twenty five thousand pounds (£325, 000).

Generally speaking, if your net estate is worth less than £325,000 at the time of your death, usually no tax will be payable. If your net estate is worth more than £325,000 at the time of your death then normally tax is paid on the surplus at the rate of 40%.

This is subject to various exemptions and reliefs. For example if you have a spouse or civil partner, inheritance tax would not be paid on anything they inherit from your estate. Your spouse or civil partner could then use the percentage of any remaining allowance from your estate that may not have been used when they pass away. In simple terms, this generally means that if you are a married couple or in a civil partnership with a combined estate worth less than £650,000 and you leave everything to each other on the first death, Inheritance Tax will not be an issue.

How old do you have to be to make a will?

Since 1 January 1970 it has been possible for anyone aged 18 or over to make a Will.

Before that date, a Will made by someone younger than 21 years of age was not valid, unless it was a 'privileged Will' - i.e. one made by a soldier in actual military service or mariners or seamen at sea.

Article by
Sharon Brown

However, many people do not make a Will until later in life.  In the event that they died without a Will their estate would be distributed in accordance with the Intestacy Rules.

It is becoming increasingly common for family members to explain the importance of having a Will to younger generations, especially if they are intending to leave them money in their own Wills!

Two of the most common triggers for younger people to make wills is when they buy their first home or when they have their first child. For many people their home is their largest asset, and it is important to specify who that should be passed on to. Once a child is born people often want to ensure that in the event of their death the 'correct' person would be able to step in as guardian. Not everyone wants their parents to take on the role, or more commonly, they do not want their in-laws to take on the role! 

If you or someone you know need to discuss a Will please call me on 01992 422128 or email Sharon@ghslaw.co.uk 

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Tel: 01992 422 128

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Email: info@gardenhousesolicitors.co.uk
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Remember a charity in your will week, 7 – 13 September 2015

Chris and I were very pleased to support this year’s ‘Remember a charity in your will week’. The week aimed to increase awareness of the importance of charitable legacies, and encouraged more people to think about including a good cause in their Will.

Many of our clients like to include a gift to charity once they have looked after their loved ones. For some it is a chance to give back, perhaps to a medical charity who have supported them through their final years. For others, it is remembering a charity who helped look after a close relative during a difficult time, or simply a charity they believe to be a particularly good cause.

Inheritance Tax: Additional tax free allowance for homeowners from April 2017

It was announced in the Summer Budget last month that an additional nil-rate band will be available from April 2017.

The extra allowance will be exclusively available to estates where the deceased dies on or after 6 April 2017 and their residence is passed to one or more direct descendants. In other words, if your children, stepchildren or grandchildren inherit your home on your death, your estate will benefit from the additional allowance.

The additional allowance will be £100,000 in 2017/2018 and this amount will increase by £25,000 each tax year until 2020/21 when the additional allowance will be £175,000.

The current position is that when you pass away, the net value of your estate is calculated and everything over the value of the nil-rate band (currently £325,000) is taxed at the rate of 40%. This is subject to various exemptions and reliefs, for example anything left to a spouse or civil partner will pass tax free.

What are the implications of leaving somebody out of your will?

Article by Chris Lucas

In England and Wales, we enjoy the right of testamentary freedom, which is the right to make a will and leave your estate to whomever you wish. 

There is however an important law to consider before you decide to write somebody out of your will. This is the Inheritance (Provision for Family and Dependants) Act 1975 which will apply if you die domiciled in England and Wales. This law will enable certain categories of people to bring a claim against your estate if you do not ‘reasonably provide’ for them in your will. 

A recent ruling hit the headlines just this week, whereby a woman who was cut out of her mother’s will successfully claimed £164,000 from the estate, despite the fact that the will left the whole estate worth £486,000 to animal charities and the deceased had clearly expressed previously that she did not want her daughter to receive a penny of her estate.

What is a general power of attorney?

Article by
Sharon Brown

There are three main types of power of attorney you may come across:

• General or ordinary powers of attorney;
• Enduring powers of attorney (EPA); and
• Lasting powers of attorney (LPA).

You can find out more about the latter two types on our website, where you can also download our FAQ guide on powers of attorney.

 

A general power of attorney is a legal document allowing you to authorise someone else to carry out matters on your behalf. For example, if you are going on holiday for a length of time or having an operation that means you will not be able to sign things easily for a few weeks. It is also quite common for people who are going travelling for 6 months or a year.

 

A general power of attorney can be used for one specific purpose; for example if your car was being sold whilst you were away or if your house insurance policy was due for renewal or it can be to cover all of your property and financial affairs. Whilst they can be very useful, they are only for a set period of time. If you need something more permanent you really should consider setting up an LPA. One of the major advantages of an LPA is that it can still be used if you lack mental capacity, for example if you are in a coma.

 

Another time general powers of attorney can be useful is if you have prepared a property and financial affairs LPA and are waiting for it to be registered by the Office of the Public Guardian. We can set up a general power of attorney for you to enable to your chosen attorneys to start acting straight away. This type of general power of attorney is usually limited in time so that it ceases to be valid when your LPA is registered.

 

If you have queries or questions on any type of LPA please feel free to contact me by telephone on 01992 422128 or by email to Sharon@ghslaw.co.uk

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Tel: 01992 422 128

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Email: info@gardenhousesolicitors.co.uk
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Making substantial gifts to children: How this might affect their inheritance

Article by Chris Lucas

You may be interested to know that if you make a particular type of gift to one or more of your children during your lifetime, this could affect your children’s inheritance under the terms of your will.

The type of gift referred to here is known as a ‘portion’. A portion can be described as a substantial gift (usually of money) from a parent to a child which is made with the intention of establishing the child in life or making permanent provision for them.

A typical example of a portion would be giving one of your children a sum of money to be used as a deposit towards buying their first home. Whatever the gift might be, the key requirements for it to be considered a portion are as follows:

1. The gift must be from a parent (or a person acting in loco parentis i.e. someone who has assumed parental responsibility) to a child.
2. The gift must be substantial in value - what ‘substantial’ means will depend on the circumstances and can be open to interpretation, but generally speaking, any gift of £20,000 or more is most likely to be considered substantial.
3. The gift must have the effect of establishing the child in life or making permanent provision for them e.g. deposit for a first home or sum of money to enable the child to start up their own business.

If you have already made a will, then it is important to be aware of the potential effect of portions when you subsequently pass away. Essentially, any portions made during your lifetime after you have made your will can have the effect of ‘satisfying’ legacies left to your children under the terms of your will. This is known as the presumption against double portions.

Jointly owned property – The benefits of including a Property Protection Trust in your will

If you own property with somebody else, you will probably be aware that there are two ways of owning property jointly: as joint tenants or as tenants in common.

‘Joint tenants’ means that the co-owners own the whole property together. If one co-owner dies, the whole property passes to the surviving co-owner(s) by survivorship. This tends to be the most common form of co-ownership.

 

‘Tenants in common’ means that each co-owner owns a share of the property. This might be in equal or unequal shares. When a co-owner dies, their share will form part of their estate and therefore pass under the terms of their will (or under the rules of intestacy if the individual has not made a will).

LPA and EPA Registration Fees to be Reduced

Article by Sharon Brown

Every Lasting Power of Attorney (LPA) must be registered with the Office of the Public Guardian (OPG) before it can be used.  Enduring Powers of Attorney must be registered at such time as the donor (the person who made the EPA) has lost or is beginning to lose mental capacity.  The current fee for registering an LPA or EPA with the OPG is £130.00 per document. 

On 16^th Jul 2013 it was announced by Helen Grant (the Under-Secretary of State for Justice) that the fees will be reduced.  From 1^st October 2013 the registration fee will be £110.00 per document, a very welcome saving for people trying to put their affairs in order.  Also, where an application to register has to be resubmitted to the OPG the fee is being reduced from £65.00 to £55.00.    

The Government has previously stated that it would like every adult to have an LPA in place and I feel this is a step in the right direction to making that wish a reality.

If you have any questions regarding EPAs or LPAs please feel free to contact me on 01992 422128 or by email to Sharon@gardenhousesolicitors.co.uk

www.gardenhousesolicitors.co.uk

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Tel: 01992 422 128

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Email: info@gardenhousesolicitors.co.uk
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Fatal Accidents and Claims for Bereavement Compensation



Article by
Nidhi Chopra



It is an extremely difficult time when a loved one passes away, but when the death is caused by someone else’s negligence or fault then natural feelings of bereavement are also accompanied by resentment and numerous unanswered questions.

When there has been a violent, suspicious, unnatural or a sudden death of an unknown cause, the death is reported to a Coroner who will make inquiries to establish the cause of death. The Coroner may hold an inquest hearing. Reports to the Coroner are often made by doctors, hospitals and the police. The victim’s family are able to review the reports and attend the inquest to hear the evidence.

Whether the death was caused through a road traffic incident, a hospital operation going wrong, or a workplace disease; if investigations and evidence suggests that the death was caused by someone’s negligence or fault, then the law has made provisions to allow bereaved relatives to claim compensation from the wrong doer to support them, as far as money can provide, for their future. 

What is a discretionary trust?



Article by
Chris Lucas



A discretionary trust is a trust set up whereby the trustees are given discretion over the trust fund, typically with regard to the payment of trust money to one or more beneficiaires. 

Who are the legal owners of the trust fund?

The trustees are the legal owners of the trust fund which can comprise of any assets, such as money, land or buildings.

What 'discretion' do the trustees have? 

Normally, the trustees will be able to decide how to use or invest the trust assets in the interests of the beneficiaries and how the trust fund should be distributed between the beneficiaries if at all.  Quite often, the person setting up the trust will have prepared a 'letter of wishes' to the trustees setting out how they would like the trustees to exercise their discretion. The extent of the trustees' discretion will depend on the terms of the trust.

Why use discretionary trusts?

One reason may simply be to allow the trustees flexibility to pay different amounts of income or capital to different beneficiaries. This can be useful if the future needs of a beneficiary is not known; for example a grandchild who may require greater financial assistance in the future.

Discretionary trusts are also particularly useful if one or more of the beneficiaries are not capable or responsible enough to look after money for themselves.  Common examples of this include a child or adult beneficiary with severe learning disabilities. In relation to the latter, particularly where a vulnerable beneficiary is in receipt of means tested benefits, a discretionary trust will enable the trustees to pay money to that beneficiary as and when required in such a way that the arrangment will not affect the beneficiary's entitlement to benefits. This is because the beneficiary would have no beneficial right to the trust money, rather a mere chance that the trustees might exercise the discretion in their favour. The situation would be very different in the case of a bare trust, where the beneficiary would have an absolute right to the trust fund.

Care funding – the proposed reforms and how they will affect you

Article by
Chris Lucas

Care funding might seem like a confusing topic, but it is an issue which is likely to affect many of us at some point in our lives. If you or a loved one is going into residential care, it is advised that you seek advice early on. Lack of planning can result in the depletion of assets which can have a big impact on the inheritance for those loved ones left behind.

The present position

If you are in need of residential care, the current position is that you will be required to pay the full cost of your care for as long as you need it if you have assets worth over £23,250. This is known as the means test threshold. If your assets are worth less than £23,250 but more than £14,250, you will be required to pay a contribution.

What are the proposed reforms?

Earlier this year, the government set out reforms to adult social care funding which are due to be implemented in April 2016. These reforms can be broadly summarised as follows:

• A cap of £72,000 on the total amount any individual will have to pay for their care, meaning that after this amount has been paid the local authority will step in and meet the costs;
• Deferred payment arrangements to ensure that no one will have to sell their home in their lifetime to pay for their care;
• Increasing the means test threshold from £23,250 to £118,500, meaning that those with assets worth less than £118,500 (as opposed to £23,250) will be entitled to some financial assistance from the local authority.

These plans appear to be a considerable step forward and the idea of capping care costs is likely to be welcomed by many. However, the reality is not so simple…

Personal injury trusts – what’s the story?

 

Article by
Chris Lucas

I have just settled a personal injury case for one of my clients who had an unfortunate accident whereby a barrel was thrown onto his leg causing a significant trauma injury with various other complications. The case settled for a five figure sum and was actually the highest award I have ever achieved for one of my own clients in my career as a trainee. Given the amount of compensation my client is due to receive, I have advised him to give careful consideration to setting up a personal injury trust.

What is a personal injury trust?

A personal injury trust is a legal arrangement whereby the compensation awarded from a personal injury claim is held and controlled by people chosen by the injured client, the ‘trustees’. The trustees’ responsibility is to look after the money and use it for the benefit of the injured client, the ‘beneficiary’.

Can’t I just pay my compensation into my bank account?

There are a number of reasons why we would advise any client receiving a large amount of compensation to set up a personal injury trust. The most common reason is that if you are in receipt of means tested benefits, the money you have will be taken into account. The threshold is that if you have over £6,000, your entitlement to benefits will be affected. In addition, if you currently receive or will need Community Care Support at some point in the future, having a large sum of money can lead to your support costs increasing significantly.

What if I just spend my compensation quickly?

Your entitlement to benefits could still be affected if you do not act in a way which is considered reasonable. Spending your compensation all at once on a shopping spree or using the money to pay off your mortgage are examples of where the Benefits Agency might conclude that you have attempted to defraud the system and you could be penalised as a result.

Will Writing Solicitors Hertford

Article by
Sharon Brown

Many people continuously put off making a Will - whether it's through lack of time or not wanting to consider their own mortality.  The vast majority of my clients who are making Wills tell me they have been meaning to get round to it for years.   

 

I pride myself on making the will writing process as painless as possible.  Many of my clients are surprised at how easy it actually is, and question why they ever put it off in the first place. 

 

Making a Will does not mean you are tempting fate or that you are going to pass away in the imminent future.  However, it does mean that you no longer have to worry about doing it, and that you can have the peace of mind knowing you have made things as simple as possible for those you eventually leave behind.

 

Please don't put off making a Will any longer.  Call me on 01992 422128 or email sharon@gardenhousesolicitors.co.uk to arrange a mutually conveneint appointment.  You can visit me in the office or I can visit you at home, and evening or weekend appointments can be arranged.

 

I look forward to meeting you soon!

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Tel: 01992 422 128

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Email: info@gardenhousesolicitors.co.uk
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Who Will Look After my Dog When I Die?

Article by
Sharon Brown

This is something nobody likes to have to consdier, but is a question I have been asked so many times by clients making their Will.  For many people, this is as important as deciding who will act as guardian for their children or who will get their money. 

If you have a spouse, close relative or close friend who likes animals you can simply ask them if they would take care of your dog should anything happen.  Some people to choose to leave a legacy to the person, as a way of saying thank you and to make sure that the person has sufficient money to pay for future vet bills. 

There are also a number of charities who offer free schemes whereby you can register with them during your lifetime and they will take care of your pets when you pass away.  Again, you may wish to leave a legacy to your chosen charity by way of a thank you.