Making a will & estate planning

It is only natural to wish to pass on your wealth to benefit your loved ones or create a lasting legacy by giving to charity. The truth is that you are never too young to think about what will happen to your family – especially your children – and your assets when you pass away. In fact, your will is arguably one of the most important documents you will ever sign.

Our team of will, estate and tax planning lawyers in the South East has been trusted to deliver peace of mind to generations of families. We pride ourselves on building long lasting relationships with our clients, developing a deep understanding of their individual needs, and tailoring our services accordingly.

What should you include in your will?

If you do not yet have a will in place, the key elements to consider include:

• Wishes for your funeral
• Appointing executors
• Appointing guardians to look after your minor children
• Making gifts of cash or personal possessions, as well as gifting to charity
• Providing for a spouse or partner – if you live with someone, but are not married or in a civil partnership, your partner will have no automatic rights to your property if you die. There is no such thing as a ‘common law’ husband or wife. Spouse and civil partners also benefit from spouse exemption for Inheritance Tax purposes but unmarried partners do not
• Providing for children, especially in terms of whether to pass assets to them outright or whether to hold assets in trust for them
• Determining all of your assets and liabilities, i.e. property, bank accounts, stocks and shares, pensions and life insurance, digital assets, mortgages and other debts
• International assets and how they will pass on your death, bearing in mind that taxation and succession rules in other countries can be very different from the rules in this country
• Business interests, shareholdings and agricultural assets, including the tax reliefs that can apply to these assets and how to maximise or safeguard those reliefs.

When should you update your will?

For those who already have a will in place, it is sensible to review it on a regular basis, and especially in light of any of the following:

• Marriage or civil partnership – getting married or entering into a civil partnership will revoke any will you have in place already, unless the will makes specific provision for the marriage
• Divorce
• Changes to executors
• Changes to beneficiaries – this is especially true if you make a will and subsequently have children
• Acquiring or selling property or assets – ideally advice should be sought before the sale or purchase goes ahead
• Inheriting assets.

What happens if you die without a will?

Many people do not realise that if they die without having made a will, strict intestacy rules apply, which may mean your assets do not pass on as you would like them to. These rules may also cause tax problems for those you leave behind.

What is the difference between making a will and wider estate planning?

An estate plan is a broader plan of action for your assets that may apply during your life as well as after your death.

For many people with relatively straightforward assets and circumstances, a simple will should suffice. However, if you have more complex circumstances such as international assets or business assets, or if you wish to take advice on tax planning or setting up trusts, then an estate plan is recommended.

What should be included in an estate plan?

Estate planning might include:

• The preparation of your will(s) including a review of your Inheritance Tax position, any associated trusts, rights of occupation, and letters of wishes
• Advice on joint property ownership or the right to reside in property
• Inheritance Tax mitigation advice, including allowances and exemptions and, where relevant, lifetime gift planning and the use of trusts or companies for asset protection and tax planning
• Business protection and succession planning, and Inheritance Tax advice on agricultural and business assets
• Advice on death-in-service benefits and life policies
• Advice on potential claims against your estate or your capacity to make a will
• Advice on domicile issues affecting the drafting of your will(s) and general advice on issues relating to foreign property
• Advice on charitable donations
• Advice on creating Lasting Powers of Attorney
• Advice on planning for potential care home fees.

How can I make sure my will isn’t challenged?

In England & Wales, we have something called “testamentary freedom”, which means it’s up to each individual how they decide to leave their assets when they die.  This is in contrast to some other countries or legal systems, which have forced heirship provisions that can apply to all or part of an estate.  But the press is full of stories about wills being challenged, or claims being made against estates.  That type of claim is definitely on the increase, and there are a number of grounds on which a will can be challenged.  So what can you do to make a challenge less likely?

The first thing is to be aware of the grounds on which a will can be challenged – some of those are practical, others more complicated.  A will can be challenged if it hasn’t been signed and witnessed properly.  That is why we send careful instructions on how to sign your will if you can’t come into the office.  It might be challenged if somebody feels that undue influence was exercised over the person making the will:  that could be by a family member, friend or a carer.  Another possible reason for challenge is the mental capacity of the person making the will:  they need to understand what they are doing, the extent and nature of their assets, the persons for whom they should consider making provision, and be able to make decisions and hold that information in their mind.  The ability to do so can be affected by illness, medication, recent bereavement or other factors.  If there is a risk of a challenge on those grounds, your solicitor might suggest an independent report on your capacity to make a will, to reduce the risk of a successful challenge.

Another basis for challenge is where somebody feels that the person making the will should have provided for them, but either hasn’t, or has made provision that the potential claimant feels is too low.  This could lead to a claim under the Inheritance (Provision for Family and Dependants) Act 1975.  Finally, once you have made a will you should review it regularly to ensure that it still represents your wishes accurately, and provides for the correct beneficiaries.

It isn’t possible to prevent a challenge to your will, but there are definitely steps you can take to reduce the risk of a successful challenge.  Our expert lawyers have experience in helping to prevent challenges, but also in managing a challenge  if it does arise.

Digital assets

The digital world is becoming increasingly dominant in modern life. It can cause distress as well as financial loss to families and loved ones if digital assets such as photos, music, videos, blogs, art, manuscripts, bank accounts and crypto currencies either cannot be accessed or are lost forever.

What is a digital asset?

Many people store photos, videos, music, e-books, blogs, movies, emails, conversations, social media, games, bank accounts, medical records, cryptocurrencies such as Bitcoin and even maintain their identity online. Collectively these are referred to as ‘digital assets’. These may be of a financial, sentimental, intellectual and social value to you, your family and friends.

Why are digital assets important?

It is important to plan for what happens to your digital assets when you die or if you lose mental capacity as they may have:-

• A financial value such as online bank accounts, online gaming accounts, crypto currencies, photograph sharing accounts, popular domain names and websites
• A sentimental value to your family and friends such as photos or emails that might be stored on a smart phone, on an online photo sharing website, in cloud storage or on social network account. You wouldn’t want your executors to have to deal with the sentimental assets after your death, but the good news is that you can take steps to deal with many of them during your lifetime
• An intellectual value such as domain names, website content, blogs, copyrights and trademarks, art and manuscripts. These are difficult to value. Specialist advice is needed
• A social value such as social media and gaming accounts.

How should I organise my digital legacy?

It would be advisable to make an inventory of all digital assets, where to find them with usernames. Make sure these are updated when they change and ensure that this list will pass to your personal representatives or attorney upon your death or incapacity. Take legal advice to ensure that what you decide is effective.  Make sure that you keep this list safe so it can’t be accessed or misused during your lifetime.  We have prepared a digital asset log that you can download and use as a guide to help with this process

Can I leave digital assets in my will?

If your will does not specifically refer to digital assets, they will pass in line with the residue of your estate.  “Residue” means everything you own when you die, after any legacies and bequests set out in your will have been made.  That can work where your estate passes to one person (such as a spouse), or where there are financial assets (such as a Bitcoin account) which can be encashed to split between your beneficiaries.  It doesn’t work so well looking at personal things such as photos stored online, or your Facebook account.

It is possible to leave gifts of particular digital assets in your will, or of your digital assets as a class of assets.  Your solicitor can discuss the options with you when preparing your will.

In addition, you should be aware that ownership of a device does not necessarily mean ownership of all the rights associated with the information stored on it. For example, a gift of an iPhone with an active iTunes account, does not include the iTunes account. The music on iTunes is only a personal licence to use the music according to Apple’s terms of business. This license is not transferrable and terminates on death.

We have one of the largest and most experienced teams of will, estate and tax planning lawyers in Kent and the South East, which has been trusted by generations of families. We work with you to protect your assets and pass on your wealth to the next generation in the way that best suits your circumstances.

Our estate and tax planning lawyers have extensive experience of supporting high and ultra-high net worth individuals and families with complex asset structures and international elements. We can help you to plan for the future and minimise your tax liabilities, for example through the use of trusts and other appropriate structures.

Working with us, you will benefit from the support and collective experience of the whole firm. We offer a strong network of lawyers to provide a comprehensive service, including probate, trust management, tax compliance, family law, The Court of Protection and buying or selling a home.