Fraudulent Will Writer, Lasting Power of Attorney, Probate, Wills

Why should I use a Solicitor?

The ageing population means that there is a large and increasing market for legal services for elderly people.  Services in which elderly people are often interested are:-

  • Wills
  • Powers of Attorney
  • Concerns about costs of residential/nursing care
  • Equity Release
  • Advice regarding dementia/mental incapacity

Individuals are free to obtain legal advice from wherever they choose.   The advice could be from a Solicitor, or it could be from another organisation such as a financial adviser or a will writer.

Why use a solicitor rather than anyone else? 

  • Solicitors have undergone lengthy training,  probably six years between leaving school and qualifying.
  • Solicitors are regulated by the Solicitors Regulation Authority, which provides strict controls on the way Solicitors practice to ensure that the public are protected.
  • If a Will or other document is stored at a Solicitors’ practice then the document will be kept safe, and if the Solicitor goes out of business the documents will pass on to a successor practice.  The Law Society will be able to advise where the documents are held.
  • Solicitors are insured.  If anything goes wrong the Solicitor’s insurance will cover the costs of putting it right.
  • Solicitors have to keep client’s money separate from their own money.
  • Some unregulated Will writing companies are “here today gone tomorrow” organisations. Be wary of letting them store valuable documents for you.

Fees – Solicitors are required to be up front about the fees that they will charge.

You should be wary of organisations which:-

  1. Ask for significant amounts of money up front without specifying what it is to be used for.
  2. Offer an initial Will for a very low price coupled with a home visit.  Clearly the organisation will have to sell other  products or services to you to keep in business.
  3. Some organisations ask for significant money on account of “probate fees”.  A bit like a pre-paid funeral.  Be very cautious of such requests.

When obtaining advice of this nature, always obtain advice from a Solicitor, preferably one who has been recommended to you.

Otherwise, take a look at the website www.sfe.legal.com which represents Solicitors for the Elderly. This is a group of Solicitors all of whom specialise in providing legal advice for the elderly.  Members of the Elderly Client department at Morrish Solicitors are members of Solicitors for the Elderly, and Tom Morrish is Regional Co-ordinator for the Yorkshire region.

Telephone Tom Morrish on 033 3344 9609 for further assistance or visit our website.

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Inheritance tax, Lasting Power of Attorney, Uncategorized, Wills

Getting your house in order for the future – whatever that brings

When you die, you’re dead and you’ve got nothing to worry about (unless you believe in heaven and hell) – right? Either way, what about the people or organisations you want to benefit from your estate? Whether you believe in life after death or not, it is better to get organised now. This will be a weight off your mind because you know that after you die, the people who matter to you won’t miss out or find themselves in a complicated situation that you could have saved them from. It can also reassure your significant others if they know they will be doing what you would have wanted, and it can help avoid disagreements and claims against your estate after you’re gone.

And never mind dying, what if you become mentally incapable and can’t deal with your own affairs? Who will sort things out for you then?

So here are some top tips to get your affairs straight for starters:

  • Review and update your Will regularly to ensure changing family needs will be appropriately dealt with on your death.

 

  • Make a Lasting Power of Attorney for Property and Financial Affairs to ensure your assets can be managed without delay in the event of a loss of mental capacity (or if you are physically unable to manage) and encourage other family members to do the same.

 

  • Make a Lasting Power of Attorney for Health and Welfare so your attorneys can advise doctors on resuscitation and life sustaining treatment, and health and social care professionals on how you want to be cared for.

 

  • Make the most of available lifetime giving allowances to help your family and friends, and minimise inheritance tax on your death.

 

  • Check the title deeds of your home and other properties you own and deal with any irregularities in ownership.

 

  • Prepare a detailed list of personal belongings and put in writing who you want to receive them on your death to prevent arguments.

 

  • Keep a private note of any passwords and usernames required for managing your assets online with your Will and Lasting Power of Attorney for Property and Financial Affairs.

 

For more advice on any of these courses of action, the Morrish Elderly Client team are here to help.

Call Kiranjeet or Christina at our Pudsey office on 0333 3449606.

Call Monika or Tom at our Yeadon office on 0333 3449609.

 

Uncategorized

What is the Court of Protection?

The Court of Protection (CoP) appoints people to make decisions for those who lack capacity to make decisions for themselves and resolves disputes about decisions for such people.

If the person who lacks capacity has not made a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA) and they have lost capacity, it is likely that someone will need to apply to the CoP to be appointed as Deputy for that person.

The CoP is responsible for:

  • deciding whether someone has the mental capacity to make a particular decision for themselves
  • appointing deputies to make ongoing decisions for people who lack mental capacity
  • giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity
  • handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
  • making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration
  • considering applications to make statutory wills or gifts
  • making decisions about when someone can be deprived of their liberty under the Mental Capacity Act

Who can apply to be a Deputy?

You can apply to be a deputy if you’re 18 or over. Deputies are usually close relatives or friends of the person who needs help making decisions.

If you want to become a property and affairs deputy, you need to have the skills to make financial decisions for someone else.

The court can appoint 2 or more deputies for the same person.

The court will tell you how to make decisions if you’re not the only deputy. It will be either:

  • Jointly, which means all the deputies have to agree on the decision
  • Jointly and Severally, which means deputies can make decisions on their own or with other deputies

How to apply to become Deputy

You will need to complete an application form together with supplementary forms to apply to become deputy. As part of the process you must also tell family members/friends of the person who lacks capacity that you are applying to the CoP.

You will also have to tell the person you’re applying to be a deputy for.

Fees

You must pay a fee to apply to be a deputy.

You must also pay:

  • a supervision fee every year after you’ve been appointed
  • a ‘security bond’ – if you’re appointed as a property and affairs deputy

When you apply you must pay a £400 application fee. You need to pay the application fee twice if you’re applying to become both types of deputy.

When you have been appointed as deputy, you must pay an annual supervision fee depending on what level of supervision your deputyship needs.

The Office of the Public Guardian will tell you how and when to pay your assessment and supervision fees.

You can apply for an exemption or reduction of the fee if the person you’re a deputy for gets certain benefits or has an income below £12,000.

When you have applied

The Court of Protection will review your application and make a decision after you have told the other people involved that you have applied – provided your application was complete and no one objected.

You’ll be sent a ‘court order’ telling you what you can and can’t do as a deputy. You can start acting on behalf of the person:

  • as soon as you’re appointed – if you’re a personal welfare deputy
  • when you pay a security bond – if you’re a property and affairs deputy

What can we do to help?

Applying to the Court of Protection to become a deputy for somebody can be a very daunting process. The Private Client team at Morrish Solicitors can help by applying to the Court of Protection on your behalf.

If you require any further information in relation to the above, or if you need some assistance with the process, please do get in touch by calling 033 3344 9606 or email info@morrishsolicitors.com.

Uncategorized

Planning for your Digital Assets/Estate

What are digital assets?

Digital assets include e-mail accounts, online banking, online investments, social media accounts (Facebook, Twitter etc.), online purchasing/selling accounts (e-Bay, Amazon etc.), data stored on Pc’s, tablets, laptops, mobile phones  and blogs just to name a few.

Digital assets tend to have little value but some may have significant value or sentimental value.

What would happen to these assets when we die?

Much of the information stored on computers, hard drives and online accounts are user name and password protected. Unless prior arrangements are made, family members or your Executors/Administrators may not be able to access these which leave the information unobtainable.

Practical steps to put in place

Planning for your digital estate is similar to planning for other assets.

  • You need to make create a comprehensive inventory of your digital assets. Make a list of your user names, passwords and security questions for each digital asset.
  • Make a Will – your Executors are empowered by the Court to administer and realise all assets including your digital assets.
  • Safely store these details with your Will or in a safe place so that your Executors have access to this information on your death.
  • Maintain and update the information on a regular basis.
  • Provide instructions for what you want to happen to your digital assets i.e. if you want it to continue, someone to take it over or should it be closed down.

Don’t Delay

It may take some time for you to get the relevant information together. If you don’t do this, your family will not know where to start and could miss something valuable. The more you do now to put things in order, the easier it will be for your family on your death.

Inheritance tax, Uncategorized

Residence Nil Rate Bands

It seems that Residence Nil Rate Bands are here to stay.  Complicated as they are, they provide for an increase in the Nil Rate Band against Inheritance Tax (IHT) for people who have had a property in which they have resided and who leave it to their “direct descendants”.

Putting it simply, the Nil Rate Band is a tax free amount that is available to all individuals before IHT is calculated.  The current Nil Rate Band is £325,000, and after that IHT is charged at 40% of the estate above that figure (subject to various reliefs and exemptions).  The main exemption is when an estate is left to a spouse and the spouse’s inheritance is free of IHT.

The Nil Rate Band is increased by the “Residence Nil Rate Band” (RNRB) in cases where the person dies leaving a property in which they have lived and the property passes to “direct descendants”.

It is not necessary that the deceased was living in the property at the date of death.  There are transitional provisions for properties sold by the deceased after July 2015 and before death.

The definition of “direct descendants” is quite wide, and specifically includes step children.  However, the RNRB is not available to individuals who leave their estate to nephews and nieces, for example.

The RNRB is currently £100,000 for deaths on or after 6th April 2017.  This is going to rise to £175,000 for deaths on or after 6th April 2020.

What does this mean for a “typical” couple who have a house and are leaving their estate to the children of either or both of them? 

The Nil Rate Band is £325,000 per person.

The additional RNRB is now an extra £100,000 increasing to £175,000.

Hence effectively each individual could then achieve a £500,000 threshold before IHT is payable.

Due to the availability of transferable Nil Rate Bands (which have been around since 2007) then it is quite possible that between a couple who are married or in a civil partnership (or for the survivor of such a union) the IHT threshold will be £1,000,000.

In a complicated way (and biased towards individuals with “children” – in the widest possible definition of the word) the IHT threshold has increased quite significantly.  The legislation is, however, quite complex and is worth looking at closely when dealing with the estate of someone whose estate may or may not be liable for IHT.

Specialist advice can be obtained from Tom Morrish at Morrish Solicitors, telephone 033 3344 9609, email tom.morrish@morrishsolicitors.com.

Lasting Power of Attorney, Power of Attorney, Uncategorized

Lasting Powers of Attorney – helpful or not?

Denzil Lush, former Senior Judge of the Court of Protection, warned the public recently that he believed Lasting Powers of Attorney (LPAs) may leave elderly people open to abuse.

An LPA is a powerful legal document that allows a person to appoint trusted individuals to make important decisions about care and finances on their behalf, in the event of a loss of mental capacity through an accident or illness such as dementia.

In the foreword to a new book on the subject, Mr Lush raised concerns about the “lack of transparency” in how appointed attorneys manage older people’s finances.

However, we in the Morrish Solicitors elderly client team, think LPAs are effective safeguards when created responsibly and national organisation Solicitors for the Elderly (SFE) agrees:

“Senior Judge Lush’s comments have given rise to fears that LPAs are a direct avenue for financial abuse. However, his comments must be put into context, as his 20-year career at the Court of Protection will have presented him with the very worst cases of financial abuse.

“An LPA can be a positive and effective legal tool, which ensures your wishes are respected should you ever lose capacity. Senior Judge Lush’s comments should highlight the clear need for professional advice when considering powerful legal documents of this nature.”

Top tips on drafting a lasting power of attorney

SFE is an independent, national organisation of over 1,500 lawyers, such as solicitors, barristers and chartered legal executives, who provide specialist legal advice for older and vulnerable people, their families and carers. SFE has been campaigning to ensure essential checks and controls are conducted when making an LPA. Here are their top tips to ensure your LPA is effective, legally robust and safe:

Plan early – While you have capacity, it’s vital that you get your affairs in order and choose the best people to manage your affairs, in case of an accident or illness. You can’t appoint an attorney once you lose capacity.

Choose carefully – Think carefully who you want to appoint as your attorney and have an open conversation with them so they understand your wishes and what their responsibilities will include. Consider appointing more than one person as your attorney so they can share the responsibility.

Consider appointing a professional – A family member might not always be the best person to act as your attorney. Instead, you can appoint a professional such as a solicitor. They can act as a neutral third party and make unbiased decisions that are in your best interests. Bear in mind this usually involves a cost.

Think about different circumstances – Consider how you would like your attorney to manage your property and financial affairs in different situations. For example, are you happy for your property to be sold to pay for your care costs?

Address the difficult questions – Your attorney might have to make difficult decisions about your health and welfare. If you have specific wishes around your care plans, medical treatment, or end of life wishes, make sure you discuss this with them and make your choices clear in your document.

Seek professional advice – Shop-bought and online LPA kits may be suitable for those with very straightforward financial situations or with considerable legal experience, but for most people, seeking professional legal advice is the best way of ensuring that an LPA is what they want.

Keep your plans current – Make sure you keep your LPA updated if your circumstances change. Your choices around the people you want to be responsible for your finances and wellbeing may change, such as following a marriage or divorce, when children reach adulthood, or if parents pass away.

Tom Morrish and Monika Volsing of the elderly client team here at Morrish are both fully accredited members of Solicitors for the Elderly. They and their colleagues would be happy to discuss LPAs with you – contact us on 0333 3449609.

Probate

BREAKING NEWS – Increase in Probate Court Fees

When applying for a Grant of Representation  (this is the document required to enable the Personal Representatives of the estate to deal with the deceased’s estate)  the Personal Representatives  are aware that there will be a court fee payable.

It is currently a manageable amount of £155 via a solicitor, £215 without the assistance of a solicitor and £0 if the value estate is under £5,000. These  can be paid by an individual without too much financial hardship and it can later be reclaimed by the estate.

Following a recent Government consultation options were discussed to increase the fees charged to obtain the Grant of Representation. The new fee structure is significantly different to the current structure and is now based on the value of the deceased’s estate –

Value of estate (before Inheritance Tax) Proportion of Estates in England and Wales Proposed Fee
Up to £50,000 (or not requiring a Grant) 58% £0
Over £50,000 but under £300,000 23% £300
Over £300,000 and up to £500,000 11% £1,000
Over £500,000 and up to £1Million 6% £4,000
Over £1Million and up to £1.6Million 1% £8,000
Over £1.6Million and up to £2Million 0.3% £12,000
Over £2Million 0.5% £20,000

Under the new fee structure the majority of estates would not be required to pay any fees for obtaining a Grant of Representation, however –please be reminded that very few estates under £50,000 actually require a Grant of Representation so this would not have a great impact on many estates under the changes.

The greatest changes will be felt for the 23% of estates over £50,000 but under £300,000 and the 11% of estates over £300,000 but under £500,000 whereby the Probate Court Fee is significantly more than the current £155.

This would pose financial hardship on Personal Representatives should the estate not have sufficient cash assets to cover the fees (as the banks will release payment from the deceased’s bank account for the Probate Court Fee). For example, if the main asset is a property. In this instance the Personal Representatives may have to seek assistance in the form of a loan to cover the fees from the deceased’s bank or in deed their own.

There are no specific details as to whether the Probate Court will permit a payment plan arrangement with the Personal Representatives with full settlement of the balance of the fee payable once the estate is in funds eg after the sale of the property. It  is hoped that given these significant changes the Probate Court will be open to such an arrangement.

It appears that the fees will be chargeable on all estates where the values are in excess of £50,000 regardless of whether the estate is to be left to a surviving spouse or a charity, which would qualify for an exemption for Inheritance tax purposes.

The legal profession on a whole have been very disappointed with the changes as the fees are highly disproportionate to the work undertaken by the Probate Court. The work involved in issuing a Grant of Representation in a higher value estate does not justify the proposed cost in comparison with the work involved in an estate which does not exceed £50,000 and therefore no fee is payable.

The new fees are due to be implemented in May 2017 but there is no fixed date at present.