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Help, I'm not ready to die! But if I have to eventually, do I really need a solicitor?

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About David

By David Lunn

It is a sad fact that each of us whose name is recorded in the register of births will, one day, be entered into the registry of deaths and it is a fair bet that neither one of us is likely to be an exception to this rule, so why is the subject so rarely discussed? Moreover, unless this subject is particularly poignant for you at the moment (in which case I am sorry), why are you already feeling a little uncomfortable with where this piece might be going?

It stands to reason that if a significant event stands before us and if we are on a certain journey towards that event, it is as well to prepare for it. If the timing of the event is uncertain, it also stands to reason that we should prepare for it early. To that end, let us consider Wills, Lasting Powers of Attorney and Estate Administration (often referred to as ‘Probate’).

Why make a Will?

Making a Will is your way of considering (with expert guidance):

  • How best to provide for those you may leave behind

  • Who is best placed to deal with the paperwork and formalities when the time comes

  • Who would be best placed to look after any children who are not yet 18 years old when you die?

Perhaps I should also have added ‘seeing whether you are able to provide for those you have left behind’ because I have occasionally come across people with dependents and yet with very few liquid assets through which they might make proper provision. If you discover this at the last minute after an unfortunate diagnosis, there is not much to be done about it but if you discover this while you are young and in good health, you can always speak to a financial advisor about life assurance.

How you provide for your family by Will can be simple or it can be more complex – it depends on the family circumstances and the available capital. You might have a spouse, no children and a reasonable level of assets. If so, a simple Will providing for each other on the first death and for the wider family (or charities) on the second death might be all that is required.

You might, however, need something more creative if, perhaps, you have been married more than once and there are children from different relationships. Here, a life interest trust might be needed to provide accommodation and income for your spouse for the rest of his or her life while preserving the underlying capital for your children. Alternatively, a discretionary trust (a sort of ‘wait and see’ type arrangement whereby you appoint individuals to receive the assets and to look at who has need of them at the time) might be more appropriate. This means that someone who knows the circumstances prevailing at your death rather than at the point of making the Will can decide who receives what.

There are often more options available than you might have considered and the earlier these things are considered, the easier it often is to come up with a solution that is likely to work for everyone.

The alternative is leaving everything to chance, unplanned and hoping that the prevailing law when you die appoints the right people to sort everything out and gives everyone what you would have wanted them to receive. It does not really bear thinking about. However skilful the lawmakers, what chance did they truly have of coming up with a ‘one size fits all’ solution for all people of all backgrounds who die without a Will?

Wills are, however, technical legal documents and it is a false economy to try to write your own Will. It takes years of training and experience to learn how to do this well and the skill extends much further than knowing what to write on a blank sheet of paper. It is also about knowing which questions to ask and what advice to give to help you to uncover what really is the best outcome for your particular circumstances.

What is a Lasting Power of Attorney (LPA)?

An LPA is a document by which you can choose who should make decisions for you if you are ever unable to make them yourself. Such decisions may concern financial and property matters or health and welfare matters. Whereas this is not strictly relevant to death (if you die, it is your Will which is relevant), LPAs are very relevant if you should lose your ability to make decisions prior to your death. A lot of people view these as an insurance product against dementia but they are much more than that. Consider what happened to Michael Schumacher – he was skiing and he fell and hit his head (if you don’t ski, perhaps you ride a bicycle). He was wearing a helmet. Even so, Mr Schumacher has been left in a state where he is alive but for some years now it appears from the limited information in the public domain that perhaps he has not been able to manage his own finances, nor is it a given that he can make his own medical decisions. This is not simply a topic to be considered by the elderly or the infirm – all of us should ask ourselves, if we were to fall over and hit our head, who would manage things for us? Have we given that person the proper authority?

A question I have been asked more than once is whether it is really a good idea to ask a solicitor to draft an LPA rather than everyone drafting their own forms. The answer is that there is rather more to it than simply filling in boxes with people’s names and addresses. There are often nuanced decisions to make and optional additional wording that is a very good idea for some people and a bad idea for others. Using a solicitor is not just about filling in the forms, it is about the advice which comes from speaking to many people over many years about their circumstances and their needs and what works for them.

What is involved in managing someone’s estate when they die?

The answer to that question can vary considerably as it rather depends on who has died, what assets (and debts) they had, whether they made a Will and who is due to inherit. Taking a reasonably typical example of someone who did make a Will and did appoint executors to sort things out, what are they likely to be expected to do?

Well, they are likely to need to do a lot of things. For example:

  • Register the death

  • Arrange the funeral

  • Ascertain whether the Will that they are holding really is the current Will

  • Ascertain the values of all of the known assets and all of the debts

  • Identify the people due to inherit

  • Take reasonable precautions against the possibility of there being any unknown assets or debts which were not known to the immediate family

  • Check whether any Inheritance Tax (IHT) is payable

    • This duty goes much further than simply comparing the value of the estate with the IHT allowance and paying 40% of any excess. It will include asking precise questions of certain individuals about whether they have received any gifts from the person who has died (do you know which questions to ask and who to ask?), it will include establishing whether all the beneficiaries are taxable and, if some money is left to charity, whether enough money has been left to charity to affect the overall tax rate applied to the rest of the estate

  • Checking whether any beneficiary is bankrupt before paying any inheritance over to them (an executor who pays an inheritance to a bankrupt beneficiary might end up being sued by the trustee in bankruptcy but do you know how to check?)

  • Making sure that any property in the estate remains properly insured

  • Selling or transferring shares or property

  • Finalising the income tax position to the date of death and for the post death administration period

  • Making sure that the Capital Gains Tax (CGT) position is considered and, if appropriate, protected

    • If you are selling the house for more than it was worth at the date of death, that could give rise to a liability to CGT – there are perfectly legitimate steps that an executor can take to reduce or even eliminate this CGT liability and the executors would be expected to know this and to take those steps

  • Distribute the estate as per the terms of the Will (but not too quickly or, if someone later challenges the Will successfully, the executor might not still have the funds from which to settle the claim) – do you know when you should distribute?

Of course, an executor named in the Will does not have to do all these things personally. It is perfectly permissible to ask a solicitor to do these things on behalf of the executor and to pay all of the legal fees out of the estate. It often surprises me how many people decide to administer the estate themselves and I wonder whether those people really know what they are doing. If they make one mistake with the tax, it could cost them (personally in many cases) rather more than the legal fees would have amounted to in order to have a trained professional taking care of that and everything else.

All in all, if you want to prepare properly for the inevitable and if you want to do so in a timely way with the benefit of good professional advice and if you want to be sure that you are administering the estate of a loved one correctly, I would advise that you do use a solicitor. TWM Solicitors LLP has offices in Epsom, Leatherhead, Wimbledon, Reigate, Cranleigh, Guildford and London and each of our offices has staff specifically trained in Wills, LPAs and Estate Administration.

For further information, please contact david.lunn@twmsolicitors.com

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