Plan for the future and protect your Family
Many clients ask for advice relating to Wills, Powers of Attorney and Gifts of Property and this guide is intended as a general introduction to offer help and guidance to those seeking advice.
This guide is intended as a general introduction to the subject of long term planning, which is mainly suitable for people of sixty years of age and above, although this does have some general applications for other people as well.
Solicitors are often confronted with circumstances in life which are sometimes unforeseen and broadly relate to the following three areas:
- Financial matters and planning.
- Disputes, matrimonial matters and family disagreements.
It is therefore important to consider carefully the individual circumstances of each case and there is no single piece of advice that is applicable to all but there are general issues which can be taken into consideration as follows:
There are many different types of Will for different circumstances but broadly speaking Wills can be categorised into three main types which are:
- The simple form of family Will. This is hallmarked by the desire of the husband and wife to leave everything to each other and then on the second death to pass their assets to their children or family.
- The structured form of Will. This broadly looks at the assets of the Estate, such as the house, the contents of the house, money or business interests and the Will is designed to deal with the individual parts of the Estate and to place into effect some sort of protection against circumstances in the future. This type of Will is typically used by people in second marriages with children by different unions or where there is a strong desire to ensure that certain assets remain within the family, such as a matrimonial home or a share thereof
- The discretionary form of Will. The discretionary form of Will is very useful for people who are looking for more complicated structures where their broad desire is to protect capital but provide for the needs of the family from time to time. This type of Will is useful, for example, where there are issues relating to ill health of a family member, financial problems, such as bankruptcy or a person on benefits or where there are serious concerns about a person’s ability to be able to manage their affairs, such as mental disorders and the like.
People looking to create the most flexible solution which will protect their family wealth will normally adopt the discretionary form of Will or a variation of it.
There is a serious concern in age about people’s ability to cope and manage their affairs in the future and therefore it is strongly recommended to consider setting up a Power of Attorney.
A General Power of Attorney will only operate whilst the Donor of that Power of Attorney (the person creating the Power of Attorney) has the mental capacity to be able to manage their own affairs. Once a person becomes mentally incapable of managing their affairs then such a Power of Attorney is revoked by that incapacity. Because of this the Government has introduced the Lasting Power of Attorney. This lasts beyond the person’s incapacity and enables the appointed Attorney/Attorneys to manage the Donor’s affairs.
The forms are long and the process of registration can take as long as twelve weeks, however they are considered to be highly desirable for older people because they remove the uncertainty by allowing the Donor the ability to appoint whoever they wish to manage their affairs in the circumstances. One looks at a Power of Attorney as a contingency plan.
However it is important that a person does have the mental capacity to understand the nature and effect of a Power of Attorney before the document is executed and there are a number of safeguards in place to protect vulnerable people against abuse.
SGC Solicitors offers a wide range of advice about Powers of Attorney and their use.
It is common for husbands and wives to own a house jointly and what is not well understood is that on death the property normally passes automatically by survivorship because the joint owners are usually known as joint tenants.
This implies that they are equal owners and the property passes by survivorship. However in some cases this is not desirable. For example, if the husband is unwell and the wife passes away then the property passes automatically to the husband and the property will then be looked at for long term care funding. Because of this and the uncertainty that this creates many people desire to change the ownership of the property to become tenants in common.
Effectively this means that the parties remain joint owners however the property does not pass by survivorship and the individual shares of the property will pass to the Will of the deceased and the Will will then determine who that share of the property is to pass to, for example the children or grandchildren or even into a Trust.
Therefore severing the joint ownership and creating a discretionary Will is an ideal solution for those wishing to protect a share of the family home.
Some clients ask whether it would be a good idea to give assets away to their families during their lifetime and great care and caution has to be exercised before taking this step.
There is an excellent booklet produced by the Law Society on this subject and whilst this is a guideline for solicitors it sets out in some detail the factors which need to be considered and it is the solicitor’s role to explain these to the client.
There are four main choices that you have when faced with a decision about giving assets away and they are:
- To do nothing.
- To transfer all of the assets to family members.
- To own assets jointly with family members.
- To transfer assets into a flexible family Trust, such as a Pilot Trust or a Flexible Family Trust.
The danger with transferring assets to family members is that they, amongst other things, could die before you, go bankrupt or divorce and this can compromise the individual making the gift. Therefore great caution needs to be exercised when making these decisions.
Having said this there are many clients who will want to transfer their assets into arrangements which are considered to be flexible and for this reason professional advice is advisable.
Please be aware that circumstances in life do change, sometimes dramatically and very quickly and as a consequence one need to be very careful about this decision.
SGC Solicitors offers a wide range of services relating to private client business such as those stated above and our solicitors will be happy to offer help and guidance to those seeking advice.
Head of Department for Wills and Probate is Richard Cliff who qualified as a Legal Executive in August 1990 and who then qualified as a Solicitor in December 1992. Richard is assisted by Rebecca Hewitt who has over 10 years of experience in Wills and Probate, and who will qualify as a Legal Executive in 2022 and Christina Peck who qualified as a Solicitor in 2021. In addition to Wills and Probate matters SGC also deal with Powers of Attorney and Trust matters. Whilst some elements of our work does include some taxation work we are not regulated to offer comprehensive Tax advice.
For Probate applications we charge a fixed fee execution service for £400.00 plus VAT. Probate fees start at £155.00 and £1.50 for each extra copy you require. No VAT is chargeable on the Probate fees. There may be situations whereby the Probate application becomes more complicated depending on the nature of the deceased Estate, in which case we would agree a fee in advance based on the circumstances of the matter. Richard Cliff’s hourly rate is currently £200.00 plus VAT. Once an application is made to the Probate Registry it can typically take 9 days for the Probate to be processed.
Lasting Power of Attorney currently take 12 weeks for the registration process to be completed. A full range of our fees can be found by using the link below.