Leo Abse & Cohen
Solicitors

The importance of every adult having an appropriate and up to date Will in place cannot be overstated, yet as many as two out of three adults have not addressed this. Many people incorrectly assume that everything will automatically pass to their next of kin in any event. This is not necessarily the case. The intestacy rules which apply in the absence of a Will do not, for example, guarantee everything for a surviving spouse (in a typical family scenario of spouse and children currently, only the first £125k of assets in the sole name of the deceased would pass outright to the surviving spouse). Co-habiting partners have no automatic entitlement to a share in the deceased partner's Estate regardless of the length or strength of their relationship.

For such an important document it is well worth taking expert advice to ensure your Will is going to be effective and reflect your wishes and this needn't cost a lot.

It is very important that once you have made a Will, it is reviewed regularly to ensure that it is still relevant to your personal and financial circumstances and to take account of changes in the law. In particular, if you leave or begin a serious relationship, have a child or further children or acquire or dispose of a house or other assets, your Will is likely to require alteration and should be reviewed.

Should you marry or remarry, please note that this can invalidate any Will that you have already made.

For no obligation initial advice on your position and a fixed fee quote for preparation of an appropriate Will please contact one of the team.

For married couples who have made Wills containing Nil Rate Band discretionary trust arrangements we recommend these are reviewed and advice taken on whether simple mirror Wills or modified Will Trusts would best meet your specific needs and circumstances going forward. This is in view of the recent changes to the law enabling unused nil rate band to be carried forward to the estate of a surviving spouse.

Preparation of Wills including trust arrangements in respect of business or agriculture property can allow the business property to be distributed to best give effect to your underlying wishes depending on all circumstances when the Will takes effect and with a view to optimising any Inheritance Tax relief available at that time. Alternatively, business property can be held under the flexible wills trusts ongoing ring-fenced for the benefit of future generations.

It is import to review and seek advice on business documents relating to the business (e.g. Articles of Association) in case these have a bearing on how your business interests can be dealt with in the event of your death and which might otherwise interfere with the provisions you wish to make in your Will.

Preparation of Wills incorporating trust arrangements can help to achieve dual objectives of security for surviving spouse whilst ring-fencing capital for the ultimate benefit of the children from the first relationship and with a view to avoiding disputes and difficulties between the first and second families.

We can advise on protecting the first spouse's share of assets from means testing should the survivor need it, via appropriate Will Trust planning. We can advise on the pitfalls of lifetime gifting in connections with the family home in the context of protecting the value from means testing for long term care and on the use of appropriate lifetime trust arrangements where a gift of the family home is contemplated.

Many people are unaware of the importance of putting in place a separate Will effective under local law, specifically to deal with succession in relation to the overseas property and to ensure that local rules do not override client's wishes and intentions. We can advise in conjunction with an appropriate lawyer in the foreign country on the interaction between UK and local law to ensure a joined up approach to overall will planning. We have a link up with two UK firms who have in-house French law expertise and we can therefore co-ordinate effective implementation of UK and French wills as once exercise.

Since October 1^st 2007 the appropriate form of authority is called a Lasting Power of Attorney. It is important to plan for this to ensure that your financial affairs are not frozen in the event of mental incapacity.

A comprehensively drawn Declaration of Trust can specify shares in which proceeds of sale will be held based on initial and ongoing contributions to mortgage and improvements etc; the trust document can also provide pre-emption rights and other terms applicable in case of breakdown of a relationship between the parties or any dispute as to the proportions in which the beneficial interest is held.

If you make an onward gift from your inheritance, the value gifted can remain part of your own estate for Inheritance tax purposes for up to 7 years. We can advise on tax efficient onward gifting via a Deed of Variation, again within two years of the death. A Deed of Variation means that the amount of your onward gift can leave your estate immediately for Inheritance Tax purposes. It can even mean you can set aside an amount from your inheritance which you can call on if you need it, but which can otherwise sit outside your own estate for Inheritance Tax purposes. A deed of Variation can also save significant Inheritance Tax where two deaths have occurred in quick succession and to prevent the first estate swelling the second for inheritance tax purposes.

If a person is beginning to lose or is suspected of losing their capacity then an assessment may need to be carried out by a mental health expert to decide whether that person is able to make a Lasting Power of Attorney. A Certificate of Mental Capacity is always necessary for a Lasting Power of Attorney to go ahead. If the proposed donor of the Lasting Power of Attorney does not in fact have the required level of capacity when he or she signs a Lasting Power of Attorney the Lasting Power of Attorney would not be valid. In that case it would be appropriate to make an application to the Court of Protection for a family member or professional as “Deputy” which then enables the deputy to manage the property and affairs of the person who has lost capacity. We can deal with the application process on your behalf or can act as a professional deputy if required.

We can assist and advise on all aspects of estate administration including obtaining the Grant of Representation (which is the executor's authority to deal with the assets and liabilities in the estate). We can do this for a fixed fee. We can go on to deal with the estate administration and distribution if required.

We can advise on the strengths or weaknesses of a particular challenge in relation to the Will or estate and represent an individual beneficiary in pursuing or defending the same.

Where a person dies without making a Will, the rules of intestacy determine how the estate will be divided between the nearest relative. The rules are complicated and it is important to take advice on how they apply the particular circumstances.

We are always happy to have an initial conversation with you to discuss your particular circumstances and establish how we may be able to help you with the legal issues involved. Often we can then provide a no obligation fixed fee quote for any work to be undertaken so that you can decide how you wish to proceed.