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Wills, Probate, Trusts and Lasting Powers of Attorney

Wills

Many people delay making a Will, almost as if they think doing so will bring them bad luck. Yet it is a task which, when done, brings peace of mind. You know that should the worst happen, your affairs are in order and that your property and money will go where you want to it to go.

There are a number of misconceptions about Wills;

i) That only the elderly should make them - in fact it is equally important for young couples who may need (amongst other things) to appoint guardians for any minor children.

ii) I don't own any property or have a lot of money - even if this is the case in reality most of us are worth more than we think, especially if you have taken out an insurance policy, perhaps linked to a mortgage, or indeed you have an occupational pension (and you haven't written the benefits of each in trust), either of these may pay out into your Estate.

Also, although we recommend reviewing your Will every 3 years or so, or after any major event (such as the birth of children or grandchildren), your financial situation may change (such as an inheritance or a lottery win!) and therefore it is better that you have a Will in place that covers your wishes rather than relying on the rules of intestacy.

iii) We live together, and treat each other as spouses, although we have never actually married/entered into a civil partnership, and therefore all our assets will pass automatically to my surviving partner - sadly this is not true. If you die without having made a Will (referred to as dying intestate) then how your Estate is distributed will be governed by the rules of intestacy, and irrespective of how long you have lived together, your surviving partner could receive nothing at all.

iv) All our assets are held in our joint names so we don't need to bother with Wills - although it is usual for jointly held property to pass to the surviving owner on the first death, what happens on the death of the last of you?

The above are only a few examples of the misunderstandings we have encountered in practice, and do not even touch on some of more the complex situations we routinely deal with, such as second marriages, where provision needs to be made for your new spouse whilst also protecting your children's interests from your first marriage, what to do if you own assets overseas and ways to reduce Inheritance Tax being paid on your Estate.

At Burningham & Brown we have long and comprehensive experience in drafting Wills, together with advising on Inheritance Tax mitigation. Our Wills are drafted by our Partners, who have the necessary experience and ability to carry out your wishes, delivering top quality service efficiently and at a sensible rate.

Our aim is always to produce a Will that is clear and concise, and that you readily understand. If applicable, the Partners in the firm are willing to act as Executors of your Will if so requested. As with all dealings with us, you can be assured that your affairs will always be discussed in the strictest of confidence, and we offer a free safe custody service for your original Will.

Therefore if you want to decide:

i) Who benefits from your Estate;
ii) What they will receive;
iii) Who will actually carry out your instructions in your Will - your Executors; and
iv) Who will be the guardians of your children

Then the only way to do this is by making a Will.

Lasting Powers of Attorney and Court of Protection

A Lasting Power of Attorney can be used by you to appoint someone you trust as your ‘attorney' to make decisions on your behalf in relation to your financial affairs or personal welfare should the need arise. Sadly some people become mentally incapable of managing their affairs and a deputy has to be appointed. We offer advice and assistance in dealing with both Lasting Powers of Attorney and Court of Protection applications.

Probate

Following a death, we understand what an emotional and stressful time this can be. Unfortunately when someone dies, although unwelcome, there are inevitably legal formalities and paperwork that needs to be dealt with.

Burningham & Brown will therefore look to ease the administrative burden on you by offering a holistic, sensitive and efficient service. As an established family practice we have considerable experience in these matters (two of our Partners being members of STEP - The Society of Trustee and Estate Practitioners), and the aim of our Partner led service is to guarantee you direct access to high quality, helpful, sympathetic and professional advice at what is inevitably a very difficult time.

We can deal with all administrative tasks involved in obtaining a Grant of Probate (where there is a Will) or Grant of Letters of Administration (where there is no Will), and our experience in Estate administration allows us to offer a comprehensive and complete service starting with securing and valuing the assets, through to making sure any Inheritance Tax is paid, making sure the correct beneficiaries receive their entitlements as quickly and efficiently as possible.

Of course we understand that cost is very much a determining factor when it comes to making any decision nowadays, and therefore we are happy to agree either that our fees be charged on our competitive hourly rate, giving you the security of knowing that the fees charged represent exactly the time spent on the Administration. However if you prefer we can agree a fixed fee at the outset, thereby ensuring that the Executors and beneficiaries are clear exactly what the Estate Administration will cost.

If someone has died and you are appointed as Executor, or no Will can be found, we suggest that you contact us as soon as possible. We will be happy to arrange a free no obligation initial interview in order to discuss the Estate, and you can then make an informed decision as to whether you require our assistance or not, and at the same time, if requested, we can provide you with our specified quote as to what we would estimate our charges would be.

Trusts

A trust is a legal arrangement whereby property (such as land, money or other assets) are held by one or more people ("trustees") for the benefit of other people ("beneficiaries").

It is the responsibility of the trustees to manage the trust, and carry out the wishes of the person who created the trust (the "settlor").

Generally trusts are created by a legal deed within which the settlor will state what it is they want the trust to accomplish together with who the trustees and beneficiaries are.

There are a number of reasons why trusts are set up:-

  • To control and protect family assets - perhaps to avoid losing assets if a beneficiary may have matrimonial or financial problems, or perhaps the beneficiary is unable (due to mental capacity issues or indeed reckless ways) to have direct access to the money/assets.
  • To retain a degree of control over the assets in question - it may be the settlor is happy to allow a beneficiary to use and enjoy the asset, but does not wish to relinquish full ownership to them (e.g. the family home).
  • Either to pass on money/property while the settlor is still alive, thereby potentially eliminating tax liabilities now or in the future, or to pass on money/assets when the settlor dies under the terms of their Will (known as a "will trust").

There are many types of trusts, which are used for many different reasons, some of the most common are:-

i) The life interest/interest in possession trust - this type of trust is where one or more beneficiaries are entitled to the trust income as it arises, or in some cases the right to use the assets in the trust (such as a property) for a period defined in the trust deed, but the capital in the trust is held for someone else.

ii) The discretionary trust - in this type of trust no one beneficiary has the right to receive the income or capital in the trust and which beneficiary or beneficiaries benefit, and to what extent, is decided by the trustees exercising their discretion.

iii) A bare trust - also known as "simple trusts", and in this type of trust the beneficiary has an immediate and absolute right to both the income and capital in the trust, and can call for it at any time.

Once the trust has been established, and registered with the Inland Revenue (if applicable) there are a number of ongoing obligations for the trustees:-

  • To the beneficiaries of the trust by protecting the trust property, keeping a careful eye on investments and making payment of the income/capital to the beneficiaries in accordance with the trust deed.
  • To deal with the various taxation issues of the trust, not only on the establishment of the trust, but also during the life of the trust (e.g. trust tax returns), and also when payments are made to beneficiaries.
  • To comply with the trustees obligations as laid down in legislation and act within the scope of powers granted to the trustees within the trust deed.

As the above shows although trusts are extremely useful and flexible arrangements which can be set up for a number of reasons, careful thought and advice needs to be taken when considering whether a trust is suitable for your needs. At Burningham and Brown we advise on all types of trusts from the initial drafting of the trust deed, the tax implications of the trust for you and the beneficiaries, and can if required administer the trust on your behalf.

Latest News

The RUH Will Month 2017

06-07-2017 - Admin

Here at Burningham & Brown Solicitors, we are pleased to announce that we will be once again be supporting  the annual RUH Will Month initiative, which helps to raise funds for the RUH's charity, the Forever Friends Appeal....

Local Solicitors raise £31,500 for the RUH Make a Will Month September

23-02-2017 - Admin

The Forever Friends Appeal has gained a welcome boost to its funds with the news that the RUH Will Month fundraising initiative ran throughout the month of September raised an incredible £31,350.00 to help towards the care of patients at the Royal United Hospital (RUH) and the Royal National Hospital for Rheumatic diseases (RNHRD)....

23-02-2017 - Admin

Justine Alford of Burningham & Brown Solicitors reflects upon the importance of having a Will, the need to update it as your circumstances change and the benefits of setting up a Lasting Power of Attorney...

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