Two out of three people die without making a Will. When this happens, the estate is distributed in accordance with a rigid set of rules known as the intestacy rules. Spouses receive a set sum and blood relatives are listed in order of priority. This can have disastrous consequences.
Disadvantages of Dying Without a Will:
- If you are elderly with no immediate family this could mean that your estate passes to distant relatives that you have not seen in years. Friends, charities and relatives by marriage get nothing.
- If you and your partner are not married, your partner will receive nothing on your death.
- If you and your spouse do not own assets jointly, then your spouse may be forced to sell the house to pay legacies to your children or other relatives.
Advantages of Making a Will:
- If you have children from a previous relationship, you may wish to make provision for your spouse during his/her lifetime and then ensure that your estate passes to your children after the death of your spouse.Otherwise, if your die first, it is possible that your spouse could remarry or change their Will, cutting out your children.
- You can choose guardians to look after your children if they are orphaned under the age of 18.
- If you care for a disabled person who receives means tested benefits, we can draw up a Will which sets up a trust fund for the disabled person without effecting their entitlement to benefits.
- If you own a property abroad, it is important to make a Will both here and in the country where you own the property. We can advise on foreign property issues.
- Setting out your instructions in a Will prevents future arguments among family members.
- If you make a Will you decide who gets what and when. You decide who will carry out your instructions. You can take account of individual circumstances so as to ensure that your estate is distributed exactly as you wish.
You can buy a Will from a stationers and complete it yourself however unless this is checked by a solicitor you will not know whether you might have made a mistake which could make it invalid or if what you have said is not clear enough so the gifts fail because no-one can be sure what you meant.
If you are eligible for Legal Help then there is no charge for drafting a Will.The eligibility requirements are as follows:
- You must either be in receipt of income support or pension credit and
- You are either over 70 years old or disabled or a single parent or you have a disabled child.
Where Shall I Keep My Will?
We offer free storage of all Wills that we draft in our fireproof storage cabinets. We also offer deed storage for house deeds and other important papers. If the Will is stored with us then we give you copies of the signed Will for you to keep and to give to your Executors together with a note that the original is in our store.
The passing of a loved one is always difficult and dealing with their estate can be a sensitive matter. HKH Kenwright & Cox will provide you with a considerate and discreet service.
We can assist in all aspects including:
- Obtaining a grant of probate
- Providing beneficiaries with advice on taxation matters
- Dealing with legacies to minors
- Protecting assets from possible creditors and taxation
We will explain to you in clear terms the steps involved ensuring our administration and distribution of the estate is handled effectively to ensure that all property and tax issues are handled in a manner that reduces the emotional difficulties involved.
Inheritance tax is charged on the value of a deceased person’s estate above the tax free limit of £325,000.00. The rate of tax is 40% on all estate above the tax free limit so on an estate of £500,000.00 your family could face a tax bill of £70,000.00. Fortunately there are a number of measures available to help to reduce or eliminate entirely the eventual tax bill and our Solicitors will be happy to discuss these with you.
The main exemptions and reliefs are as follows:
The Spouse Exemption
Gifts between husband and wife are normally exempt from IHT.
The Charity Exemption
Gifts to registered charities are exempt from IHT.
Business Property Relief
This relief covers various interests in a business including (subject to certain conditions):
Shares in an unquoted company – here the relief is 100%
shares in a quoted company which carry control of the company – here the relief is 50%.
Most lifetime gifts are exempt from IHT provided that
the donor lives for at least seven years thereafter and
does not reserve any benefit in the gifted asset.
The annual IHT exemption
Gifts of up to £3,000 in each tax year are exempt and any exemption not used in one tax year can be carried forward to the next.
Gifts in consideration of marriage are exempt, as follows:
by a parent of the bride or groom – £5,000
by a grandparent of the bride or groom – £2,500
by any other donor – £1,000
Small gifts of up to £250 to any number of people are exempt, provided that the total of gifts per donor to each individual does not exceed £250 in the tax year.
Normal gifts from income
Lifetime gifts made regularly out of income each year are exempt, provided they do not affect the donor’s usual standard of living.
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According to figures released by the Government agency, Business Link less than half of first-generation family businesses in the UK have succession plans in place. This could cause serious problems because many business owners intend to stand down within the next five years and will need to ensure a smooth transition to the new owners in order to fund their retirement. Many will also want to ensure their business continues as a going concern – especially if they have spent a large part of their lives building it up and making it successful.
There are a number of options available to entrepreneurs who wish to retire or move in a different direction. The business could be handed on to a family member or colleague. It could be sold to an outside party or be bought by the existing management, merge or be taken over by another company. Whatever the course chosen, it is essential to start planning several years ahead of your target retirement date, particularly if you are handing over to family members or colleagues.
The first step is to hold meetings with those who will run the business when you leave so you can agree an exit strategy. If you own a large share of the business, the remaining partners or directors may need to raise money to buy you out. It may be that you agree to sell your shares back over several years so the firm’s finances are not put under too much pressure all at once. In that case, you may need to change your will so the arrangement can continue should you die before the sales are completed.
There could be tax implications whichever system you choose for withdrawing capital from the firm so professional advice should be sought. If you own the business premises, you will need to decide whether to sell or lease them back to the firm. It is also important that those who remain in the business consider how they will continue without you. It may be that your expertise can be passed on to the remaining directors, or they may have to replace you. If it is to be the latter, a successor should be chosen before you leave.
If you have built up a close relationship with key customers then you should arrange for them to meet the other directors so trust can be developed and continuity assured. Some entrepreneurs find it difficult emotionally to leave a business they have built up from scratch. If you feel that way then you might consider staying on as a consultant. This would provide stability for the firm and reassurance for its customers.
Some entrepreneurs who are handing over to family members feel guilty that they may be taking too much out of the business making it hard for the next generation to succeed. By the same token, the sons and daughters can worry that they are not providing their parents with a ‘fair deal’. Sometimes, business priorities and family ties can become a little blurred. This is another reason why it is important to seek guidance from a Solicitor and an Accountant as they can remain objective and can ensure that the agreement is fair to everyone.
Please contact a member of our commercial team if you would like more information about the preparation needed for handing on a business successfully.
Planning Foreign Property
Anyone buying property abroad, whether as a holiday home or an investment opportunity, should consider instructing a UK solicitor to minimise the risks of future problems.
Our experienced Foreign Property solicitors provide specialist and friendly advice at what would normally be a stressful time. If you're buying your dream home overseas, we are here to try to make sure that your whole experience is as enjoyable as possible – from the moment you decide to buy, right through to the time you spend at the property long after our work is finished.
IMPORTANT: Don't sign any contract without seeking legal advice first. Once the contract is signed, you could be bound by it even if the terms are unfair or unsafe.
There have been many horror stories of people buying their dream homes only to later find they do not even own the property, there are debts registered against it or it was built without planning permission. If this happens to you and you've arranged everything yourself, it can be difficult to know where to turn. Avoid this by instructing solicitors who can remove the stress by explaining the purchase procedure to you in terms that you understand.
We check title to the land and ensure that all necessary permissions and licences have been correctly obtained, review the preliminary contract, consider whether amendments are needed in order to safeguard your interests and review the final conveyance documentation before legal title is passed to you.
In addition to our fixed fee purchase service we advise on all aspects of buying and selling overseas property. Graham Hughes, in particular, has extensive experience in matters relating to foreign wills and inheritance rules in a number of foreign legal jurisdictions.
Nursing home costs
A survey published by Saga recently estimated the average cost of care at £540 a week, with the average length of stay having risen to four years. This means on average care home costs in the region of £112,000.00.
Charges are based on a means test, under which anyone with savings and assets, including a house, worth more than £23,250 must pay the full fees themselves. They are known as self funding. It is not until a self funder has less than the lower capital limit of £14,250 that they receive maximum support from the Local Authority, although this will continue to take into account all income, including benefits and pensions.
If you have capital between £14,250 and £23,250, capital will be calculated as providing you with an income of £1 per week for every £250 of your savings.
For more advice about paying for care home fees and/or financial assessments please contact our Continuing Healthcare team.
NHS continuing healthcare
Individuals with a primary health need are entitled to be funded by the NHS for the full cost of care home fees, this is called Continuing Healthcare.
Whilst there is no legal definition of a primary health need in the context of NHS Continuing Healthcare, in general terms it can be said that an individual will have a primary health need if, having taken account of all their needs, it can be said that the main aspects or majority part of the care they require is focused on addressing and/or preventing physical or mental health needs.
Are you eligible?
To assist in determining eligibility, the Department of Health have developed the Decision Support Tool. This will be completed by a multidisciplinary team (MDT) when assessing whether an individual qualifies for NHS Continuing Healthcare. Although this is not an assessment in itself, the Decision Support Tool can assist in establishing if an individual has a primary health need.
The decision support tool looks at the individual's needs in relation to 11 care domains, namely Behaviour, Cognition, Psychological and Emotional, Communication, Mobility, Nutrition, Continence, Skin, Drug Therapies and other medications, Breathing, and Altered States of Consciousness. Each domain is broken down into a number of levels, each of which is carefully described, to determine how severe the individual's needs are. For each domain MDTs are asked to identify which level description mostly closely matches the individual's needs.
The Decision Support Tool also takes account of the nature, intensity, unpredictability and complexity of care to determine the quality and/or quantity of care that will be required to meet them.
It is very important that the individual has been properly assessed for NHS Continuing Healthcare regardless of their financial situation. A person can be eligible for funding in any setting including a care home, a hospice or their own home.
If you feel that you or someone you know might be eligible for NHS Continuing Healthcare, please complete our short Continuing Healthcare Enquiry Form and we shall contact you to discuss
Can you challenge a decision?
It is possible, where someone has been wrongly assessed for funding purposes, to seek retrospective reimbursement of nursing costs from the NHS. This can be done on behalf of the individual by an attorney, close family member, or executor of an estate after the individual has died.
If you feel that you or someone you know may be eligible for reimbursement please complete our short Continuing Healthcare Enquiry Form and we shall contact you to let you
know if you have a claim.
How is my claim funded?
We will initially assess your claim by way of a written questionnaire. The first assessment is free and confidential and there is no obligation on you to proceed.
If we are able to proceed with your claim it will be funded on the basis of a
Contingency Fee Agreement (more commonly known as a “no win, no fee” agreement).
What if you are not eligible for NHS continuing healthcare?
If, following an assessment, you are not eligible for NHS Continuing Healthcare and you are receiving care in a nursing home, you should receive NHS funded nursing care, which is a contribution towards the nursing home fees. From 1 April 2010, the rate in England is £108.70 if you moved into a nursing home on or after 1 October 2007. In Wales, this is currently £120.55.
Lasting Powers of Attorney
Managing your financial lifestyle and making decisions about medical treatment and long term care can become complicated if you lose the mental capacity to make these decisions for yourself.
Whilst you have the mental capacity you should make a Power of Attorney to avoid unnecessary expense in future and the uncertainty and anxiety your family and business partners would face if you become incapable of making decisions. Making an LPA also means you get to choose who you would like to act on your behalf.
Property and Financial Affairs LPA
This type of LPA allows you to choose who you wish to be responsible for your financial, property and business concerns if you can no longer make decisions about them.
Health & Welfare LPA
You can also put in place a Health & Welfare LPA to authorise decisions about your healthcare and personal welfare.
Both types of LPA must be registered with the office of the Public Guardian before they can be used. Failure to do this will result in a delay if the LPA is needed following incapacity.
Enduring Powers of Attorney (“EPA”)
It was possible to make an EPA prior to October 2007. This type of power of attorney allowed someone to manage property and financial affairs. After October 2007 it is no longer possible to create an EPA, although if you executed one before then, it can still be used by your Attorney(s) to manage your financial, property and business affairs.
Whilst this type of power of attorney could be used immediately after signature, it must be registered with the Office of the Public Guardian if the person who granted the power has become or is becoming mentally incapable of managing their financial affairs.
We also have access to medical experts who can help assess whether an individual has legal capacity to make decisions concerning their affairs.
Administration of the estate etc.
Our wills, trust and estate planning solicitors combine proactive advice and personal service to help you plan for the future and safeguard your financial security.
We will help you to ensure a smooth transfer of wealth from one generation to the next, and enable you to exercise as much choice and control as possible over your financial affairs.
We understand the difficulties that can arise in relation to disputed wills and estates and work closely with experts in our Dispute Resolution group to help you achieve a favourable outcome to your dispute.
How we can help
Our highly regarded wills, trusts and estate planning solicitors are experts in all areas of trusts, wills and estate planning. We will listen to you and take time to understand your individual requirements in order to provide innovative and tailored solutions for all your planning needs.
We can help with:
- inheritance tax
- business succession planning
- foreign property
- nursing home costs
- lasting powers of attorney
- probate and estate management (including disputed estates)
Personal and professional legal service
Our wills, trusts and estate planning team has years of experience in helping clients and is highly ranked by independent legal guides. Clients benefit from:
Experienced solicitors with specialist knowledge in all areas of trusts and estate planning
Our ability to provide innovative solutions on the most complex and sensitive cases
Many of our wills, trust and estate planning solicitors are members of the highly respected
Society of Trusts and Estate Practitioners
A truly personal service which is highly valued by our clients