Avoid the payment of care home fees in your Will.

If you read our blogs on a regular basis you will be well aware that 70% of the population die without making a Will.If you don’t then you may find this a shocking fact.

The question is does it register sufficiently for you to make the effort  to  do something about it if you haven’t got a Will.

We have listed all the reasons why people should make a Will several times so we won’t do this again here but make sure you look at our website which will tell you all you want to know.

If people think of Wills and estates the biggest threat they see to preserving what they have when they die for the next generation is inheritance tax.

For married couples with estates worth more than £650000 this does present a problem but they can work out what their potential liability will be and take action by giving value from their estate to their children whilst they are still alive.

However  most estates that go through probate are under £300000 which means thereis no inheritance tax.

So what is all the fuss about?

It’s about the dreaded payment of nursing home fees by people who have sufficient money and other assets to cover the cost of their care and the realisation that although they may have cheated [in the nicest sense of the word ] there has appeared  the  unexpected spectre of huge bills from the local authority just to make your last years comfortable or as least as comfortable as the person in the room next to you who are having their fees paid for by the local council.

However help is at hand.By making a Will in a particular way we are able to preserve your or your spouse or your partner’s interest in your home from the threat of care home fees and instead have your fees paid by the council.

All that is necessary is to leave your house  or your half share of the house in trust for your partner/spouse and the local council won’t be able to bring this into the assessment of your assets to see whether you should make a contribution to your care fees paid by the council.

To completely take the whole of the value of the house out of assessment  the prudent thing to do would be to transfer the whole of  your property into a lifetime trust .

For advice on the above and all matters related to post retirement planning please email us at info@consumer-care.co.uk or ring on 0800 088 4660.

If you would like to know more about our Wills and services, click here

Who can claim from an estate where they have been left nothing in the Will?

A person is up to a point free to dispose of their assets  to who they like if they leave a Will.

The only restriction to this comes from the Inheritance [Provision for Family and  Dependents ]1975 [the Act].

This allows certain categories of people to apply to the Court suggesting that they have not received reasonable financial provision via the Will or intestacy. The question the Court must consider is not whether the deceased has been unreasonable but whether reasonable financial provision has been made and if not what provision would be reasonable in all the circumstances.

Possible applicants under the Act include a spouse, civil partner and children.

Unless  barred by terms of the divorce a former spouse or civil partner[who has not remarried or formed another civil partnership]also has the right to apply under the Act as do dependents and anyone who was being maintained by the deceased.

For deaths after 1 January 1996   cohabitees  who  lived in the same household as the deceased ‘as husband or wife of the deceased ‘during a period of 2 years ending with the death can claim as well.

In assessing a claim under the Act looks at various factors including the financial needs and resources of the applicant and other beneficiaries, the size and nature of the estate any obligations and responsibilities the deceased had towards the applicant or any beneficiary and any other matters that it considers relevant. This wide discretion makes the predicting of applications under the Act  somewhat difficult in practice.

The Act defines reasonable financial provision in relation to a claim by a spouse or civil partner as such provision as would be reasonable in all the circumstances. For all other applicants the test is such provision as it would be reasonable in all the circumstances for the applicant to receive for his maintenance. A spouse is therefore generally in a more favourable position than any other claimant.

Successful claims under the act by adult children capable of earning their own living are not that common but claims by minor children in need of educational costs for example have a much better chance of success.

Maintenance is not limited to the necessities of life but is not so wide as to cover anything that may be viewed as desirable for an applicant’s benefit or welfare. It is regarded generally as payments which directly or indirectly enable the applicant in the future to discharge the cost of his daily living at whatever standard ogf living is appropriate to him.

Paternity tests are quite common as a claimant first has to establish whether they are one of the possible applicants entitled to claim under the Act. At least 20000 paternity tests are carried out each year in Britain, some being sold by companies criticised for cashing in on family crises.

If you do need advice on a potential claim against the estate or you need to defend such a claim then please contact Consumer Care by email: info@consumer-care.co.uk or by telephone on 0800 088 4660 and we will be happy to advise you.

Gifts to children in Wills

A Will takes effect on death and can therefore be revoked at any time while the person making the Will is still alive.

As a result of this the general rule is that if a beneficiary dies before a testator any gift under the Will lapses [fails]. Where the gift is a simple legacy and the person to receive it has died before the testator any gift to him/her lapses.

Where the gift is a simple legacy and the legatee has died before the testator the subject matter of the legacy will fall into residue and increase the value of the residuary estate.

There are important exceptions to this so called ‘doctrine of lapse’ the most important of which is section 33[1] of the Wills Act 1837[the Wills Act] which provides a saving for the issue of the testator.

The statutory saving in the Wills Act has wide reaching implications .Section 33[1] provides that :

A Where a Will contains a gift to a child or remoter descendant of the descendant of the testator and

B the intended beneficiary dies  before the testator leaving  issue and

C issue of the intended beneficiary are living at the testator’s death;

Then unless a contrary intention appears in the Will the gift shall take  effect  as a gift to the issue[which means children or grandchildren and their descendants down through the generations] living at the testator’s death.

For example Tom the testator leaves his estate to his 2 sons in equal shares.

His eldest son Peter dies before Tom leaving 2 children.

Section 33[1] Wills Act operates to ensure that  the 2 grandchildren of Tom take Peter’s  half in equal shares.

Although it’s not possible to exclude the doctrine of lapse under a Will the testator may of course provide for an alternative in the Will so that another beneficiary takes the gift instead. This could be done either by an accrue to the other shares or a gift to another  person.

The effect of an accruer is that the failed gift accrues or is added to another gift that already exists under the Will. An accruer in the widest sense may be implicit in the wording of the gift. Where ,for example, a testator makes a gift to two or more people  and it is clear that the failed share of any who predecease the testator will  increase the share[s] of those who survive there will be an implicit accruer.  

One in five faulty Wills could lead to big inheritance tax bills

One in five Wills contain basic errors according to a recent report from the Legal Services Board which called for Will writing to be regulated to improve standards.

Writing a Will is the first steps to make sure you choose who benefits from your lifetime’s work and to keep inheritance tax [IHT]  to a minimum so it is vital to get it right. By the time you realise there has been a mistake it may be too late to do anything about it.

Although lawyers welcome disputed Wills with open arms because of the fees for sorting things out disputed and faulty Wills are bad news for the families concerned as the lawyer’s time is usually a massive drain on the value of the estate.

Lack of clarity about the testator’s intentions  due to the lack of knowledge of the person taking the instructions can prove difficult to sort out posthumously but the Legal Services Board claims many Will writers are simply ‘not listening’ to their clients.

It’s report states:

‘We found consistent patterns of sloppiness simple errors and poor communication. This often resulted in an unacceptable service for cus consumers were subjected to unfair sales practices’.

Worse still the LSB said it was aware of some ‘examples of fraud and deception’. Its survey of 100 people who wanted a Will found that 20% came back with ‘basic errors’ in their Wills. A handful of the Wills were so bad they ‘could not be executed’.

Currently anyone can help to write a Will. However, under the plans Will writing will become a ‘reserved activity’ for the first time. This will mean that anyone writing a Will have to be registered with one of eight professional bodies.

The Citizens Advice Bureau has warned that increasing numbers of people have been conned by bogus Will writers, some advertising Wills for around £25 in local papers or offering Will writing services door to door. Low cost Wills could prove an expensive mistake given the sums of money  involved in many bequests and most litigation.

But the fundamental problem remains that only a minority of people ever make a Will and most people die intestate. Extending regulation to cover Will writing will do nothing about that-unless of course the authorities decide to make Will writing compulsory like registering a property title at the land registry.

This article just goes to show  the importance in having your Will prepared by a company who cares about its customers and with the ability to match the wishes of a testator with the terms of a Will while at the same time ensuring the Will is tax efficient and free from future challenge.

Consumer Care has a legal team managed by a specialist in the area of Wills estate administration and tax planning the former partner in charge of the Wills Trusts Tax and estates department  of a top ten national solicitors firm where on average on a yearly basis the department produced 35000 Wills .Added to the fact he has just completed 40 years  in the legal profession in this area of the law We can honestly say there is no company better placed to prepare your Will and give you all related advice than Consumer Care .