How Do You Trust Your Will Writer?

Some people choose to write their own will or use a cheap on-line service. The problem here is the document will only be as good as their knowledge! The wrong type of will could be chosen, or vital facts not considered. This could cause considerable distress to loved ones or a loss of money from the estate. There are a group of clients who would not be happy unless they saw a solicitor for their will or Power of Attorney.
Surprisingly, the Will writing industry is not currently regulated, but this does not mean there isn’t an increasing demand for Will writers to become regulated.
It’s apparent that the number of ‘cow-boys’ out there has increased and there are some stories where a Will, which the client thought to be professionally written, either did not correctly state the clients wishes or failed completely. In this circumstance, there is very little the client can do. Additionally, I have seen excellent wills written by will writers and appalling ones written by solicitors!
Understandably, these facts make clients very nervous about writing their Will; sometimes to the point where they put off writing their Will altogether. The biggest concern for clients is trusting the professional sat in front of them.
The House of Commons have recently been driven to delve into this issue a little deeper and have taken a look at the pros of cons of adding regulation for Will writing. The decision to exclude Wills from the original Legal Service Act was by no means unanimous – there were many arguments put together to try to force regulation. At the time, the Government responded to these arguments by suggesting that voluntary regulation would suffice.
Whether you are pro-regulation or not, what is clear is that these questions are rearing their head again and it is definitely advisable for Will writers to opt for voluntary regulation. We would expect that regulation will be considered again within the next 5-10 years.
Until then, the best procedure for a client is to check the will writer belongs to a professional body such as The Society of Will Writers or IPW. Members must continually train throughout the year and any complaints would be taken seriously.
Also check your will writer has P.I. (personal indemnity insurance). Look at their client testimonials, these will give a good oversight.

RESIDENTIAL NIL RATE BAND-INCREASED IHT THRESHOLD – DO YOU QUALIFY?

Remember George Osborne?  Yep, the one who was Chancellor for a while and who promised to raise the inheritance tax threshold for married couples to £1 million?  Well in typical political style, he sort of kept his promise when he announced in summer 2015 that he was introducing the grandly titled Residence Nil Rate Band (RNRB for short!)

The RNRB is arguably the most complicated introduction to our tax system in (at least) a generation. The new allowance will certainly see some people benefit from the long-awaited increase in the amount of their hard-earned cash they can pass to their loved ones free of inheritance tax (IHT).  Provided that their loved ones receiving the required interest in their home are “lineal descendants” and that the gift to them is absolute.  Oh and that they have a main residence or had one in the past.  There are other conditions but we will skirt round those for now…

This is marvellous news if you have lineal descendants and if it is appropriate to leave an interest in your residence to such descendants with no strings attached.

However, the limits on the availability of the new relief are a problem for people who have children/grandchildren (even step or foster children) who might not be capable of taking control of such a gift, perhaps where they are disabled or just not great with money.  Whereas trusts would usually be favoured to afford some on-going protection, using such arrangements eliminates the availability of the relief.

Which leads to the question – Are we introducing, through the back door, forced heirship rules here?  They have them in Scotland and our continental cousins are au fait with such provisions but in England and Wales, we have always had freedom of testamentary disposition.  Well, the RNRB takes a bit of that freedom away.  The cost of securing the additional relief is that you cannot freely decide who gets part of your estate and how.

Then we have the issue of discrimination.  A strong assertion but a fact.  Those who do not have qualifying lineal descendants do not get a look in on the RNRB.  Those who have lost children, who have never been able to have them or indeed have not wanted them, lose out.

Ultimately, the RNRB is not as generous as it first looks but most of all it is unfair, excludes some from benefiting, and leaves others with a lack of free choice on how they gift their estate.

All is not as the headlines would have you believe and even those that do qualify for the relief on the face of it need to make sure that they do not fall foul of other conditions that are not covered here.

 

Children under 18?

Currently in the UK, only 67% of adults have a valid Will, and whilst not all of them will have needed to appoint guardians for their children, it is certainly something that many of them will have considered. Deciding who you would like to bring up your children is likely to not be easy. However the thought of knowing that someone you trust will be looking after them after you’re gone should certainly bring some comfort to the matter. After all, the alternative is letting the courts decide on their guardians, something that surely any parent would wish to avoid.

The appointee will only become the child’s guardian if at the death of the testator:

  1. No parent with parental responsibility survived him; or
  2. There was a residence order in his/her sole favour relating to the child.

Without any guardians in place, under Section 5 of the Children Act 1989 the courts can appoint guardians for a child if there are no parents with parental responsibility, i.e. not named on the child’s birth certificate. Guardians may also appoint a successor, and this is not something that needs to be done in the testators Will.

When appointing guardians in your Will, you should always seek consent of those you wish to appoint, prior to naming them in your Will. The loss of a friend or family member can be shocking enough without unexpectedly having to take on the responsibility of children.

Having appointed guardians for you children, you should also think about writing a letter of wishes to lay out how you want your children to be raised specifically. You can express how you wish for your children to continue with certain activities such as music lessons, or afterschool clubs. Other examples may include guidelines as to religion, or their education. It should however be remembered that a letter of wishes is just that. It is not legally binding and cannot be enforced and as such it is advisable that when appointing guardians, you choose somebody who will follow the wishes you have set out.

ARE YOU DIVORCED OR SEPARATED? WHETHER YOU HAVE A WILL OR NOT, READ ON…..

When a marriage or relationship breaks up, you have plenty on your mind. What would happen if you died is probably something you don’t want to think about, but a few minutes’ attention now could save more heartache later on. “I’m not divorced, but I’ve left my husband.” “My wife walked out on me.”

These are very difficult situations. You are still legally married, however bad your relationship. A separation has no effect on a Will – so your husband or wife could still inherit under your Will, no matter how long you have been apart.

If you started another relationship after parting from your spouse, you may want to think about making a Will providing for your new responsibilities. A partner to whom you are not married cannot inherit from you unless you make a Will providing for him or her, and they may have to go to court to get provision from your estate.

EFFECT OF DIVORCE If you have made a Will before your divorce your Will is still valid, but this creates a number of problems. Many married couples appoint each other as executor and leave their estates to each other, either alone or to share with the children. Divorce cancels the former spouse’s appointment as executor and all gifts to him or her in the Will, although other gifts remain valid. If the spouse was given the larger part of the estate, this means that, after divorce, there is no one to inherit this property and the Intestacy Rules will apply. So a divorced person with children would find that his or her estate would go to their children. However, should that person and his or her children die together – say in a car crash – the estate would go to the children’s next of kin – probably the former spouse. This may or may not be what you would wish.

OWN A HOUSE TOGETHER? _Many clients I see are  unaware of the following:

IF A HOUSE (OR SAVINGS/BANK ACCOUNTS) ARE OWNED JOINTLY, IF ONE PERSON DIES THE OTHER AUTOMATICALLY INHERITS! THIS IS DESPITE WHAT A WILL MAY SAY OR EVEN IF ONE EXISTS AT ALL.

There is a way around this but this is where professional advice is needed as each case is unique.

Bottom line is, if you, your relative or friend is separated/divorced seek professional advice with regard to your estate passing safely to the people you wish.

Why Have a Health and Welfare Power of Attorney?

Capacity to manage your affairs can be lost for many reasons, such as a sudden accident or medical condition. With over 850,000 people in the UK currently living with dementia (and rising) ensuring your loved ones have the ability to make decisions for you is essential.

Many people understand the advantages of making a Continuing Power of Attorney for financial affairs, often viewing this type of POA as being the most important to have in place and putting off a Welfare POA until a later date.

But is that really the right thing to do?

Ask yourself this – What would concern you most if you were unable to make decisions for yourself?

Would it be – Where you lived? What you ate? What care and medical treatment you were given?

Or would it be – Is my money being spent wisely?

I know what my answer would be!

The following is a true account of what happened recently to a lady when no Lasting power of Attorney for health was in place……

Mum was admitted to hospital and following a lengthy stay Social Services along with the Local Authorities compiled a health report along with an assessment for care. Naturally, her children wanted to be involved in this process and requested that they be consulted with the view to wanting to ensure that the care package would be what Mum would have wanted. Not only were they not invited to any of these meetings to decide Mum’s fate, the authorities also refused to reveal the contents of the health report to her own children. All decisions were made without any of her immediate family being present!

Sadly, this is not an isolated case, How happy would you be to allow Social Services to make all the decisions about where you should live or other professionals deciding what medical treatment you received and your family having no say in the matter?

Having a Welfare POA in place provides the reassurance of knowing that, if the worst should happen, you have chosen someone you trust and knows your wishes, to make these decisions for you. Its importance should not be overlooked.

When should you make yours? 

The short answer is – now!! If you haven’t made a Welfare PoA then do it now – while you still have mental capacity. Mental capacity can be lost at any time, and not just by a mental illness such as dementia. Simple things – a bump to the head or even a car accident take people by surprise. Not having one is a more time consuming and expensive process. Ensure your wishes are carried out by those you love by appointing them as your Attorney today.