At this time of year, it seems that everywhere you turn there is an advert or information about free Wills. October is marketed as Free Wills Month, and allows over 55s to make an appointment with a Solicitor's firm to make a simple Will for free whilst supporting Charities. During November, you may hear of Will Aid. You simply provide your details and then you are provided with a list of local Solicitors who are participating in the scheme. You contact them and make an appointment. Most firms limit the amount of free Will appointments they offer, and they can fill up quickly – if you have a trusted or favoured firm it may be that they don’t have availability or just don’t take part. In the Will itself you are not under any obligation to remember a charity in your Will, but it is hoped that you do. Alternatively, you may be expected to make a direct contribution to the charity(ies) for the cost of the Will. Your Will is then drafted, at which point you make a further appointment to return to the Solicitor’s office and the Will is signed and witnessed. The Will can then be taken with you, or you can normally arrange for the Solicitor to hold the original Will in their document storage (some firms will charge for this – I don’t!). Everybody should have a Will in place, and so schemes like this encourage people to get their Will sorted, and of course being free can also remove an obstacle for people who can’t afford the normal charges. If you Google “Free Wills” you will also find individual charities offering free wills, usually via the same mechanism of making an appointment with a Solicitor’s firm. Some charities also provide packs of information concerning Wills, and also other related areas such as Powers of Attorney and Trusts. The principle itself is to be commended, it should mean more people have Wills, and charities should see an increased flow of donations. So what are the pitfalls, and why don’t I offer free Wills? Firstly, Solicitor’s tend to put free Wills work (which is by definition not profitable work) in the hands of more junior members of staff, such as newly qualified Solicitors. This may be absolutely fine in some cases, but as a specialist Wills and Probate Solicitor I am able to provide the right advice to my clients, regardless of the complexity of their situation. Indeed, many people need more than just a simple will (complexities can be things such as blended families, overseas assets, business assets, complicated wishes, the list is somewhat endless!). If the Will is not deemed as simple, then there will be additional costs. Solicitors will inform you of these costs, but of course it will be more that you expect from a free Will. This is of course only fair, Solicitors should be able to charge for the additional work they do. But I prefer my approach, which is to spend time with my clients to understand what they want to do in their Will, I can then advise the options and agree a fixed cost at that point, before any commitment is made. And I support my clients via virtual meetings (e.g. Zoom or Teams) which can be in the evenings or at the weekend, or by meeting with clients at their preferred location, whether their home or work, within my fees. I also don’t place age restrictions on my clients! My clients can of course leave bequests to charities if they wish. As you can see, my experience, and the customer focussed service I offer really doesn’t lend itself to the Free Wills model. If you would like to discuss making a Will with me, please email me at Samantha.Downs@nexa.law , or call or WhatsApp me on 01509 434649 .

In 1789 Benjamin Franklin wrote a letter containing the famous phrase: "In this world nothing can be said to be certain, except death and taxes". And there is one area where these two certainties combine - Inheritance Tax (IHT). IHT is a tax on your estate after you have passed away. It is charged at 40 per cent on an estate over and above certain tax-free allowances, known as nil rate bands. This means that a sizeable part of what you have to pass on after your death could be taxed, decreasing the amount that is available to your beneficiaries. Your estate is made up of things such as your property, investments, savings, and gifts made in the seven years before your death. According to researched published by NFU Mutual, in the tax year 2018 to 2019, the average inheritance bill was £210,000. The average bill on estates has also increased by 6 per cent from the previous year. The government has frozen the level at which inheritance tax is payable until 2026, and as a result both the amount of taxable estates, and the amount of tax that they need to pay, will increase. The current nil rate band has actually been frozen since April 2009, since then house prices have risen significantly and brought more estates into the taxable bracket. If you are dealing with an estate there are strict time limits to pay IHT. Failure to do so will lead to fines and interest payments. You can read my previous blog article on Deadlines and Timescales in Probate here . As a specialist Probate Solicitor I can help you deal with all aspects involved in probate and IHT, whether you just need to apply for a grant of probate or you would like me to administer the estate in full. You can read my blog article about Top Ten Reasons to use a Solicitor for Probate here . And of course it is important to make sure that you have a Will in place, and that this has been drafted by a Solicitor who can ensure you get the appropriate advice and that your Will is tax efficient and reflects your wishes. If you would like advice on any of the above, then do contact me for a free no-obligation consultation.

When a loved one passes away, and you are the person dealing with their Estate (often called the executor or personal representative), there are unfortunately a number of deadlines you need to think about. Here are the main ones you need to consider: Registration of the death must normally be done within 5 days, and this includes weekends and bank holidays. Registration can be delayed for another 9 days if the Registrar is told that a medical certificate has been issued. If a coroner is involved, then these time limits do not apply. Remember, it is a criminal offence to not register a death. Inheritance Tax must be paid by 6 months from the end of the month in which the death occurred. Failure to do so results in HM Revenue and Customs charging interest on the tax that should have been paid for every day thereafter. Inheritance Tax bills are around £200,000 on average, and so the interest can rapidly accrue. Not all Estates are taxable - if you are unsure then do seek professional advice. Inheritance Tax Returns have to be submitted 12 months from the end of the month in which the death occurred, although these are often submitted at the same time as when tax is paid. Late submissions are subject to financial penalties. In some circumstances Inheritance Tax Returns are required, even if the Estate is not taxable, for example where a Grant of Representation is required. It has been confirmed that Covid-19 related issues do amount to a reasonable excuse for delay in submitting an Inheritance Tax Return outside of the 12 month time limit. But note, that this does not apply to payment of tax which must be paid within the time limit described above. The Inheritance Tax Return form for taxable Estates (IHT400) is 16 pages long, with over 20 supplementary forms and schedules. The supporting guidance is a 92 page long document. In addition, you may need to finalise the income tax position of the deceased, for both the tax year when the death occurred and also for the previous year. There may be income tax on the interest or income any assets make after death, or Capital Gains Tax on assets, such as property or investments. Failure to do so in the correct time frames can lead to financial penalties. Should the penalties or interest above become applicable, the person dealing with the Estate will, potentially, be personally liable for these. A Grant of Representation (also known as a Grant of Probate or Letters of Administration) is not actually subject to an application deadline. But if you need one to administer an Estate then you should seek to apply as soon as possible. As with many government organisations, due to Covid-19, the Probate Registry is seeing significant backlogs in processing times, and this has resulted in delays to issuing grants. It is therefore more important than ever to ensure that applications are made in full and are correct. If you don't know if you need a Grant or need help with your application, please contact me. If you would like advice on any of the above, then do contact me for a free no- obligation consultation.

Giving to Charities You may have noticed TV adverts for charities, asking for gifts to be left to them in your Will. Charities get a significant part of their income from Wills, and are keen to remind people that leaving them a gift is a way to support their work and activities. Gifting to charities in your Will, aside from the benefit of being able to support the good causes that are important to you, has certain practical benefits as well. As long as you gift to a UK registered charity, then your gift will always be certain from a legal perspective. Even if the charity closes, merges with another, or renames, the Charity Commission has processes in place to make sure the gift succeeds. You could also leave a provision for charities by allowing your executors (the person or people you want to manage your estate after you have gone) to select specific charities on your behalf. So you could, for example, ask your executors to ensure that, for example, local animal charities, receive a gift from your Estate. Giving to friends and family Most Wills are made to include how the assets and money of an estate are distributed, often to friends and family. The good news is that you are basically free, from a legal point of view, to give to any individuals or groups as you see fit. And you can normally make a gift as a fixed value (known as a pecuniary legacy), or as a share of your estate, and your Solicitor will then advise how things will work and what would happen if any beneficiaries were to, for example, pass away before you. If any of your intended beneficiaries are children, then you should seek advice from a Solicitor as to the options as there are some complications with minors. This is also the case if you wish to provide for people who have special circumstances, for example if they are disabled and have ongoing care requirements. Some items and possessions may not have great financial value, but do have personal or sentimental value. These too can be included in your Will, so you can make sure that your nephew gets your lucky hammer or your sister gets your family photos. Sometimes we might advise that you put these specific bequests into a Letter of Wishes, separate from the actual Will, as a mechanism to ensure the Will doesn't need to be updated more often than is necessary. Gifting before you die There is nothing to stop you giving away assets, money or items before you death, but there are certain things you need to think about. For example, the value of assets or monetary gifts can be considered as part of your estate if you were to die within 7 years of making that gift. This is important if your estate is taxable (meaning that it is liable to inheritance tax), as this could increase the amount of tax payable after you have died. This is just a brief summary of some of the things you may wish to consider when making your Will. As a specialist Wills, Trusts and Probate solicitor, I can help you make sure your Will is legally valid and ensures you estate is dealt with as you intend. Your Will is probably the most important legal document you will ever make, so I would advise you to carefully consider your wishes, and use a qualified, regulated Solicitor to give you peace of mind and the reassurance you need. You may also find my previous blog, about protecting your children in you will, of interest. It can be found here . If you would like advice on any of the above, then do contact me for a free no-obligation consultation.

If you are a business owner, you need to be aware that the value of that business will be considered as part of your estate if you were to pass away. All owners of a business, no matter how big or small, need to have a Will in place that includes the business, to ensure that the correct amount of tax is paid, and all relevant exemptions are considered. In terms of what happens to the business on your death, much will depend on the structure and what your business is. Your business will often have a value, made up of goodwill, equipment, machinery, land, work in progress and intellectual property, amongst other things. Depending upon the business, the value of the same that will be attributed to your Estate on your death, but may be entitled to Business Property Relief (BPR), which reduces the amount of tax you may be required to pay. If your business is entitled to BPR, it is important that the relief is protected. Often business owners want to gift their business to their family, usually their spouse. For Inheritance Tax purposes, spouses take from their spouses free of tax, this is known as Spouse Exemption. As such, if the business is given to the spouse, the BPR is lost for the first spouse to die. You are then relying on BPR being available on the death of the surviving spouse. A possible solution is to gift the business into a Discretionary Trust with your spouse and any children as the beneficiaries. This enables BPR to be used against the value of the business, and in the event that HM Revenue and Customs deem that BPR cannot be used against the value of the business, it can be transferred out of the trust to the spouse to benefit from the Spouse Exemption. Of course, every situation is different and you should seek advice specific for your individual circumstances. The above is only a tiny part of a complex legal area, and getting expert advice will give peace of mind to you and ensures your Will minimises issues for those who you leave behind. Without a WIll, known as dying intestate, the assets in the estate, including businesses, are dealt with in a prescribed manner, which seldomly aligns to the wishes of the deceased, and can cause significant difficulties for families and people involved with the business. Business owners should also consider who would run the business if they weren’t able to; my blog on this topic can be found here . If you would like advice on any of the above, then do contact me for a free no-obligation consultation.

This is a question that not many business owners think about, either when setting up or during their time running the business. But it is important for every business owner to think about it and then take positive steps to put plans into place to ensure the continuity of the business. There are many reasons why you may have an unplanned absence from the business. You may be delayed abroad due to events beyond your control, for example, terrorism or natural disaster. You may have had an accident meaning you can’t travel back home, or not be able to make decisions. Finally, you may be diagnosed with dementia or a similar illness affecting your capacity to make decisions. Much will depend upon the structure of your business as to the best advice for you and your business. Where you are a director of a limited liability business, often the articles of association will provide that your appointment as director is terminated. So the articles of association should be checked in this regard. Where you are a partner, the partnership agreement should be checked as it will sometimes contain provisions for when a partner becomes incapacitated. If there are no such provisions, or if you are a sole trader, you should consider putting a business Lasting Power of Attorney (LPA) in place. A business LPA enables you to appoint someone of your choosing who you trust and who understands your business to take over the day to day management and decision making of the business, when you are not able to do so. That person can then ensure that your business continues to operate. In the event you do not have a business LPA and you lose mental capacity, a court process is required to appoint someone to make decisions regarding your assets and financial affairs. This is a costly and lengthy process, sometimes taking between 6-12 months. During this time your bank accounts may be frozen meaning that suppliers, tax and employee wages won’t be paid, payments into the business won’t be collected, and no one will be able to make decisions for the business. The risk is that by the time the court process is completed, your business will have failed. If you would like advice on any of the above, then do contact me for a free no-obligation consultation.

Following my last guardianship post, I received a number of questions in regards to split families so I thought it would be a good idea to put together this post. As a parent myself I know just how important it is to make sure that children are happy, safe and loved, both now and in an uncertain future. The starting point is who has parental responsibility for your children. But let’s go back slightly and talk about what parental responsibility is. Parental responsibility is all of the rights, duties and responsibilities a parent has for their child – anyone who has children will confirm that there are many! It includes decisions of where your child lives, who they have contact with, where they go to school, medical decisions, and for the purposes of this post, appointing a guardian on your death. If you were married at the time of having your children or if you are named on your children’s birth certificate then you will have parental responsibility. There are other ways of acquiring parental responsibility but there are far better blog posts that explain this and so I will not go further into it here. There tends to be broadly three different circumstances that split families tend to fall into and the below presumes that both parents have parental responsibility for the children: My ex and I get on well and we are both involved in our children’s lives The best advice is for you and your ex to discuss who you feel would be best placed to act as guardian(s) to your children and for you both to make Wills appointing that person(s). Of course, this tends to be the better way forward as everyone is in agreement and, in theory, there will be no argument. On the death of you, your children will be looked after by your ex and on their death, the guardian(s) decided upon by you both will be appointed. My ex and I can’t come to agreement as to who looks after our children on our deaths but we are both involved in our children’s lives You and your ex may choose to each independently appoint different guardians in your Wills. On the death of you, your children will be looked after by your ex as they have parental responsibility and on the death of both of you, your ex’s appointment would work for the purposes of transferring parental responsibility to his appointed guardians. It would be for your appointed guardians to take advice and begin an application to Court for a Child Arrangements Order should your guardians feel they are better placed to care for the child. The child's welfare will be the Court's paramount consideration. Alongside your Will, you should consider including a letter of wishes explaining why you have appointed those guardians including why they would be best placed to look after your children. My ex has nothing to do with my children and I do not wish for my children to be placed with them on my death This is always a difficult and worrying situation to be in from a parent’s point of view. The children may not have seen their other parent for many years, sometimes, their entire life if the other parent has had nothing to do with the children since birth. The thought of the other parent suddenly being able to take the children away from everyone and everything they know is a frightening one. Often the best advice is for you to appoint guardians of your children in your Will and to write a letter of wishes explaining why you do not feel that the other parent would be best placed to look after your children and why you feel your guardians would be. This does not trump the parent with parental responsibility, but it allows you to provide an indication of your thoughts and what you believe to be in the best interests of your children which can be helpful to your guardians who will need to take urgent advice on the event of your death. It is likely that an application to the Family Court for a Child Arrangements Order or Special Guardianship Order placing the child in their care will be required. These orders will give the guardians Parental Responsibility which they will need to be able to make decisions about your child's upbringing. In the event that the other parent wishes to re-enter the child's life, the court will consider what is best for that child, based on their individual circumstances. You must remember that no matter what the circumstances, a Court will consider what is in the best interests of the children at the time of making their decision and will take into account all of the facts at that time. As such, whilst your children may be currently estranged from their other parent, if on your death, they are no longer estranged, it may be considered that your appointment of guardians and letter of wishes is no longer relevant. You should ensure you keep any appointment of guardians under regular review. If you would like advice on any of the above, then do contact me for a free no-obligation consultation. If i'm online you can chat with me now, or you can book online now using the below button, or alternatively visit my contact page.

During the current pandemic, I am receiving lots of enquiries about dealing with Probate without the use of a solicitor. Ultimately, it is possible to administer a deceased person’s estate without legal assistance, but I don’t recommend it. Probate is a bit like a maze, and a Solicitor can be your navigator. Here are my top ten reasons why you should use a Solicitor: 1. To understand the legal burdens and responsibilities involved – The person with responsibility of administering the estate (known as the personal representative) has a number of burdens placed upon their shoulders. It’s good to know what those burdens are and to receive advice about them. A number of these burdens and responsibilities, if not dealt with properly, can lead to the personal representative being held personally liable. For example, if the relevant notices of the deceased’s death are not placed, and then the assets are distributed, a creditor could then make themselves known and seek payment of their debt personally from the personal representative. Taking advice from a solicitor ensures these burdens and responsibilities, and the steps to take, are known and carried out correctly. 2. To receive practical advice on what you need to do – Dealing with legal aspects of the death of a loved one is something you might never need to do, so how can you make sure you are doing it right? A probate solicitor will have dealt with many situations and complexities which only come with experience. To take just a couple of simple things; has the insurer of the deceased’s property been informed that it is now unoccupied? If now just one person is living in the property, has the local council been informed about the death so that the 25% single person’s allowance can be obtained? You can read my previous blog article on practical considerations here . 3. To correctly interpret the Will – Can you be sure about what the Will says, so you administer the deceased’s assets properly? The majority of Wills are written with some legal jargon or latin words, which are necessary to make sure that the deceased’s wishes are carried out. But, due to the strict legal interpretation of some words and phrases, there is a significant risk of making a mistake. And if you administer the assets incorrectly, you could be liable for any mistakes you make. 4. To clarify any doubts about the validity of the Will, or any issues in drafting or signing of the Will – Advice should be obtained for this and much will depend upon the circumstances of each individual matter. Often the Probate Registrar will require affidavits from witnesses to confirm the circumstances of the signing of the Will to confirm its validity. For example, if parts of a Will have been crossed out or changed, this could potentially affect the validity and legal advice should be sought. 5. To deal with tax – If the total value of the deceased’s estate is large, Inheritance Tax may be payable. There are various reliefs that may be applicable which will reduce the amount of Inheritance Tax payable. Likewise, the income tax position of the deceased (both during their lifetime and also in the period after their death) needs to be considered and dealt with to ensure that HM Revenue and Customs are not chasing for money at a later date. Capital Gains Tax may also be an issue where a capital asset is sold for more than it was worth at the date of death. There are often strict time limits of payment of tax, and failure to meet these time limits can lead to penalties and the payment of interest. Advice should be obtained on how to minimise the amount of tax payable, and to ensure it is paid without costly delay. 6. To reduce disputes and family disagreements – Dealing with a death is difficult and stressful enough without arguments or disagreements, or even formal legal action. For example, if you know that there is a disappointed beneficiary, get advice straight away. A personal representative must remain neutral where there are any claims or potential claims on an estate. Assets should not be distributed until any claims have been dealt with, as again there is the issue of personal liability. Using a Solicitor can also avoid potential arguments as we are bound by our code of conduct to maintain trust and act fairly. If you want to find out more the code of conduct is here . 7. To deal correctly with insolvent estates – Where the deceased died leaving more debt than assets, legal advice should be obtained. There is a strict statutory, “pecking-order” of payment of debts. Should you fail to follow the pecking order you can be held personally liable for any loss to creditors. 8. To save you time – To administer a deceased’s estate takes time, involves a great deal of paperwork and form filling, and dealing with financial institutions and government bodies. Sometimes people find they have to take time off from work or spend time in the evenings and weekends dealing with probate. Again a specialist solicitor who knows the processes and procedures can complete the work accurately and efficiently. Personally, I recognise that many of my clients find it difficult to get time during normal working hours, and so I offer appointments at the weekend or in the evening, when traditional solicitors’ firms are closed. My clients can contact me directly, rather than battle with a switchboard or legal secretary. 9. To let you grieve – Often the personal representative is the next of kin of the deceased or a close family member. Losing your loved one is so very difficult and often you don’t want to be worrying about dealing with the probate process and all it entails when you are grieving the loss of your loved one. I can help by taking some or all of the probate activities from you, leaving you with the time to mourn and deal with your loss. 10. And the final reason is, that you can actually save money - The best compliment I recently received from a probate client was being told that I’d already saved them money in the first couple of days of being instructed. This was in connection with dealing with a property, after the client had received some well meaning, but incorrect, information. Banks, estate agents and other organisations often provide guidance, but they are not specialists in probate, and may not fully understand the subtleties of the law or have the experience and qualification, or understanding of the legal implications. Indeed this is why probate is a regulated activity, which means that there are restrictions on which professionals can provide probate services. Of course, this list isn’t exhaustive, there are a number of other reasons that mean you would be best to obtain professional advice. How about taking me up on my free no-obligation half hour so I can let you know if you need legal advice.

The answer to this question depends upon how you wish for your assets to be distributed on your death. Let’s first take a look at the law. If you die without a Will, the Intestacy Provisions apply. These are broad brush directions for distributing your assets on the basis of how the average man and woman would want their assets distributed. This means that your assets will pass to your family as follows : If you are married or in a civil partnership, your assets will pass to your spouse or civil partner. If you have children and your assets are worth more than £270,000 (for deaths from 6th February 2020), then your spouse or partner only receives the first £270,000 and any personal belongings. The rest of your assets would be split as to 50% to your spouse/partner and as to 50% to be split equally between your children. If you aren’t married or in a civil partnership, your assets pass to your children first. If your children die before you, leaving children of their own (your grandchildren), then they inherit their parent’s share in your estate. Where you die leaving no spouse or civil partner, children or grandchildren, then there is a fixed list of possible classes of people who can inherit, starting with your parents and ending with your half aunts or half uncles (or where they have predeceased, their children). In the event of there being no surviving family, then your assets will ultimately pass to the Crown. So, if you are happy with your assets to be distributed in this way, then it isn’t such a disaster to not have a Will. But you should give thought to the below when making a decision about whether to rely solely on the Intestacy Provisions. A Modern Family The Intestacy Provisions do not take into account the myriad of relationships in a family. A partner with whom you have not married or entered into a civil partnership is not included in the Intestacy Provisions, so they will receive none of your assets. Likewise, step families are not catered for under the Intestacy Provisions. Take this example – John and Anne are married, both have children from previous relationships. John dies with no Will. All of his assets pass under the Intestacy Provisions to Anne. Anne dies some years later having not made a Will. The Intestacy Provisions apply, and state that Anne’s estate pass to her children, and so, John’s children receive nothing. It’s likely this was never actually intended by either John or Anne during their lifetimes, but without a Will, the Intestacy Provisions apply. John and Anne could have avoided this by making Wills. Carers, close friends and relations by marriage, are also not included within the Intestacy Provisions. Children The Intestacy Provisions do not deal with the appointment of guardians for your children. If you want to ensure that you children are looked after by a certain person, then you should make a Will including that appointment. Until your children are aged 18, they will not directly receive your assets. Instead your assets will be held on behalf of your children by your Trustees. These Trustees will usually be your spouse or your children’s other parent, but under the Intestacy Provisions you will not be able to pick who does this job. If you wish to appoint who should look after your children’s inheritance, then you should make a Will including that appointment. You can also include who should look after your dog or cat in your Will! Asset Ownership Pot Luck There are times where the Intestacy Provisions leave your family in an “asset ownership pot luck” situation. For example, where you are living with a partner but aren’t married or in a civil partnership, you might hold your home as tenants in common. This is a way of co-owning your property. It means that on death, your share in the property is distributed in accordance with your Will or the Intestacy Provisions. Where it’s distributed via the Intestacy Provisions, your partner could end up co-owning their property with all of your brothers and sisters, which could provide a number of practical problems for all involved. Charities It might be that you decide you don’t want any of your assets to pass to your family members or any individuals. But you might have a favourite charity that means a lot to you, perhaps they helped you or a loved one during a difficult time in your life. If so, you will need to make a Will to ensure that charity receives your assets. If you would like advice as to whether the Intestacy Provisions would be a concern given your circumstances, or if a loved one has passed away with no Will and you would like advice as to how their assets should be distributed and who is entitled to deal with their assets, then do contact me for a free no-obligation consultation. You can book online now using the below button, or alternatively visit my contact page.