Probate and Will, Trust & Estate Disputes

Publish date

27 April 2023

Five steps to spring clean your life and legal affairs

Sarah Nettleship, Senior Associate in our Wills, Estate & Tax Planning team recently sat down with Muddy Stilettos to give her top five tips for getting your affairs in order.

1. Make or update your will and letter of wishes

Your will is one of the most important documents that you will ever make. If you die without a will, a set of rules called the intestacy rules will determine who receives your estate. If you are married with children, your spouse will receive your chattels and the first £270,000 of your estate (excluding any assets you own with them as joint tenants which will pass to them by survivorship) and the remainder will be divided between your spouse and your children. If you have a partner but are not married, they will not be entitled to anything. The intestacy rules rarely produce the result that a person would have chosen had they given it some thought. A lawyer can talk you through the options available to suit your own particular needs. For example, if you and your spouse or partner have children from different relationships, you may want to ensure that your spouse or partner can benefit from your estate during their lifetime but that your estate ultimately passes to your children. A properly drafted will can include a trust to ensure this happens. You may also want to include a letter of wishes to guide your executors and trustees.

2. Put in place a property and financial affairs lasting power of attorney

When considering your will, it is also a really good time to consider making lasting powers of attorney for property and financial affairs. I commonly hear the phrase ‘oh I’m not old enough for that yet’ but you are never too young to do so (unless you are under 18). Although people commonly assume that lasting powers of attorney are only for the elderly, they cover any scenario in which a person loses the capacity to make decisions such as following a road traffic accident or a stroke. You should consider carefully who you would want to manage your property and finances in that scenario. You will be giving your attorneys a lot of power, such as the power to sell your home and access your bank accounts, albeit that they are under a duty to act in your best interests. If you lose capacity without having such documents in place, the Court of Protection would need to appoint a deputy to act on your behalf which can be a long and expensive process. Making a lasting power of attorney means your attorneys will be able to step in to assist you straight away so that you can avoid such a period of ‘legal limbo’.

3. Put in place a health and welfare lasting power of attorney

Alongside a property and financial affairs lasting power of attorney, it is also worth considering a lasting power of attorney for health and welfare. This covers decisions about your care – should you be cared for at home or in a nursing home, for example. It also covers decisions about end of life care and life sustaining treatment. Medical professional may override your loved ones choices in this scenario if you have not given them authority in an lasting power of attorney so an having one in place can avoid stress and confusion in an already very difficult time.

4. Seek inheritance tax advice

Despite the introduction of the Residence Nil Rate Band, which increases the amount that can be passed to loved ones tax free by a married couple to £1 million (subject to certain thresholds and criteria), more and more estates are being dragged into the inheritance tax net each year, particularly in the South East where property is likely to be more expensive than the rest of the country. However, with proper estate planning advice, a lawyer can assist you with ways to reduce your estate for Inheritance Tax (IHT) purposes. Such planning can be woven into your wills and other lifetime measures can also be taken. A lawyer can also assist where you have inherited a substantial sum which will cause your own estate to become taxable on your death through a Deed of Variation – it is even possible to retain access to the funds while removing them your estate for IHT purposes with careful planning. You may already have a financial advisor or accountant in place that deals with your estate planning but don’t be afraid to ask a lawyer if they have any other ideas too – it is best for professionals to work with, rather than against, each other and we have ‘different tools in our tool boxes’!

5. Check your nominations

It is important that you also consider the assets that you have that will not pass via your will. This includes death-in-service benefits that your employer may provide on your death or funds in your pension scheme. You are able to nominate who should receive these on your death and you should make sure such nominations have been completed. It may be appropriate to set up a trust to receive these funds instead of giving them to individuals outright (for example if the individual should not hold funds in their own name for whatever reason or for tax planning purposes) and a lawyer can assist you with this. If you have life assurance in place, this should ideally be written in trust to avoid the funds forming part of your estate for inheritance tax purposes. You may have done this with the life assurance company when you took out the policy and a lawyer can review whether this has been done properly. Finally, any assets that you join as joint tenants with somebody else will not pass via your will (such as property owned as joint tenants and joint bank accounts) and will go straight to the surviving person on your death. Think about whether this is what you want! If it is not, the form of ownership can be changed. In particular, if you have a blended family and have chosen to use a trust in your will to ensure that your assets eventually pass to your own children, you should ensure that property and bank accounts are not held as joint tenants so that these pass into the will trust you have created on your death instead.

If you have any questions about the points raised above, or any aspect of estate and tax planning, please get in touch

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