Sometimes organising a probate trust can be the perfect way to keep your estate simple, to avoid any protracted probate delays, and even to enable everyone to stop worrying about inheritance tax implications. A trust is a great way to give grieving families a bit of time and space to get things organised without too many – if any – complications getting in the way. It is often much more manageable this way.
There are a number of different types of trust. One of these is known as the discretionary probate trust.
A discretionary probate trust is perhaps not as simple as other trusts, but it does still allow for an easier transition that some other options. It offers a degree of flexibility after the policyholder passes away because it is the trustees who are given the discretion (hence the name) to choose who to pay from a beneficiary list. No inheritance tax will be due on this kind of inheritance because it is classed as a chargeable lifetime transfer.
However, be careful. There are some actions which can still lead to a large tax bill. For example, any gifts made within seven years of your death will be taken into account. There are many other potential pitfalls as well, and so it is always a good idea to speak to a professional about how you can bypass as many issues as possible.
In April 2016 the world lost a musical icon. Prince died unexpectedly in his home in Minnesota. The problems regarding his estate began immediately since Prince (whose full name was Prince Rogers Nelson) had no will. This meant that his estate had to go through the intestacy rules, but Prince’s family is a spread out and complicated one, and so the entire process of portioning out the estate is still not complete.
The current problem stems from the fact that there are two lawyers who are attempting to represent Prince’s potential heirs, and the judge overseeing the case is refusing to appoint either one of them to the job. This is because there is disagreement between the remaining siblings as to who to use. The two lawyers – both very experienced in their field – effectively interviewed for the job of dealing with Prince’s estate recently, but the six siblings and half siblings of Prince are split over who to use. The judge has declared that if they cannot reach a consensus then he will work on a majority of four to two. But the issue is literally split down the middle.
Minnesota law means that Prince’s estate and assets should pass to his sister, Tyka Nelson, and his five half siblings equally because he had no children and his parents are dead. However, there have been a number of other claims from people who say that they are also half siblings of the singer, and until the claims are all looked at, the judge cannot – and will not – begin splitting the estate between the six who will definitely inherit something.
The UK’s population is aging and increasing. That means that more and more people will eventually need residential care, and that can cost many hundreds of thousands of pounds. That can be taken out of someone’s savings and assets, and in turn that means that their children’s inheritance can be severely reduced.
Since care homes are means tested, if you have over £27,000 capital per annum, you will have to pay. For many, their initial thought is that they should hide their assets, or give them away as gifts so that they don’t get swallowed up in the care system. But is this the right thing to do if you want to protect your children’s inheritance?
There is really only one big ‘don’t’ when it comes to trying to prevent any inheritance from being swallowed up by the government and that’s don’t give your house to your children. It may sound like the ultimate solution, but it’s actually very bad news. It even has a name – the deprivation of wealth. Your local authority has the right to check over your financial records, and they will discover anything along the gifting lines. If the authority believe that you deliberately gifted the property to avoid paying fees, they can reverse the gift, and you will potentially lose it all.
As for the ‘dos’, one good idea is to become joint tenants. For married couples, the ownership details of a property can be changed so that rather than being join owners, you will be tenants in common. This means that within each person’s will they can leave their half of the property in trust to their children – and not to one another. This means that if one half of the couple dies, the other person can stay in the house. However, if they did need to go into a care home, only half of the property would be valued to be taken into account.
Another definite ‘do’ is to appoint a lasting power of attorney. An LPA is someone who is given the power to make decisions for you should you become unable to do so yourself. If you still jointly own your property when you need to go into care, but are unable to make any decisions for yourself, the LPA will be able to help your partner and the inheritance too.
In UK law, you can leave whatever you want to whomever you want, assuming you own the asset in the first place. That means that if you want to leave money or property – or anything else – to your stepchildren, you are perfectly entitled to do so.
The problems start when there is no will. If there is no will then the estate will be distributed according to the laws of intestacy, and these laws are strict. There is a distinct list of people who will receive parts of the estate, and this list must be dealt with in order. The rules of intestacy do not, however, cover stepchildren, and this is important to bear in mind. Only a spouse, adopted child or blood relatives can inherit if there is no will.
And of course, even if you do have a will and you simply write that you want to leave everything to your children (or even siblings) this will not include stepchildren or stepbrothers and sisters. You will need to make a separate point for them.
Even if you have parental responsibility for a child, they still will not inherit unless they are your adopted or biological child. If they are stepchildren then the only way they will be able to inherit anything from your estate once you die is to write a will and ensure they are mentioned by name.
It is possible for a stepchild to challenge the rules of intestacy – or even a will. If they were financially dependent on the person who died, or if they had been treated like the person’s own child, they may have a claim to some of the estate. But this is a long-winded process and is expensive and distressing for everyone. It is easier by far to write a will that says what you want it to say.
Although the advantages of writing a will are obvious, many people just don’t do it. Among the many and varied reasons for this is one that stands out as something that should be easy to fix. Writing a will is seen as complicated and confusing, and therefore is not something that many people relish. It is because people simply have no idea where to start when it comes to writing their will that they don’t do it at all. This can, of course, have many consequences after they have died.
Here are some tips on how to get your will right.
Firstly, you can have help to write your will, but it is not a wise idea to ask any of the beneficiaries to assist you. This is because the will is then open to being challenged by other beneficiaries who might claim that undue influence was used to write the will in a certain way. So be careful when asking for help.
Next, you must ensure that your will is signed and witnessed by two people, and these people must not be beneficiaries either. Without the correct witness signatures, your will may end up being invalid.
Tax. It’s a big issue for everyone and it can get complicated. The best thing to do if you’re not sure about inheritance tax is to speak to an expert. There might be things that can be done that mitigates the inheritance tax liability, and that could help your loved ones after you pass away.
You should also appoint at least two executors. These are the people who will administer your estate, and they should be sensible and trustworthy. They do not, however, need to be professionals.
If you have children under the age of 18 then you should consider appointing guardians, especially if you are the sole parent. Guardians are people you would trust to look after your children in the event of your death. These are different to trustees; trustees (whom you may also wish to appoint at this stage) are the people responsible for managing any money left to your children that is in trust.
Assuming your family situation is uncomplicated, the rest of the will is about you choosing who you want to inherit what, which no one can really decide but you. However, if your family is a little more complicated (it could include step children, for example), or if your estate is more diverse (property in a foreign country is one aspect that will need to be considered), then speaking to a solicitor or will writing firm will ensure that you are doing the right thing.
Additionally, use full, real names when talking about your beneficiaries. Don’t use nicknames, don’t be ambiguous. Executors need to be able to make sense of what you have requested. The name you note down in your will should be the same as that on their birth certificate.
Finally, review your will on a regular basis. Things change, and your will may need to be changed to reflect your new circumstances. Keep your will in a safe place and let those who need to know where it is.
Signing the wrong will. It sounds like a mistake that could never happen, but in reality it does. It is essential that the testator pays rigorous attention to what they are doing and specifically what they are signing. Witnesses also need to look at the documents. Their presence isn’t enough; they need to know exactly what they are witnessing, especially if there is some detail that they missed which becomes part of a contestation of the will!
If you think that this doesn’t happen, that it isn’t possible, then the case of Marley v Rawlings might change your mind.
Mr and Mrs Rawlings prepared their wills at the same time. They each left their estate to their surviving spouse, with other beneficiaries inheriting part of the estate if their spouse had already died. One of these beneficiaries was a Mr Marley who, although not related to the couple, was regarded as a member of the family.
Unfortunately, what no one, including the solicitor and the witnesses, noticed at the time, and for some time afterwards, was that Mr Rawlings had signed Mrs Rawlings’ will, and vice versa.
When Mrs Rawlings died, her part of the estate went straight to Mr Rawlings without any problems. The mistake regarding the signature was not picked up at that point. It wasn’t, in fact, until Mr Rawlings also died that the error was found.
What did it mean?
In short, it meant that Mr Rawlings’ will was made invalid, which in turn meant that his estate became subject to intestacy rules. Mr Marley, therefore, was no longer able to inherit his share, since he was not a blood relation of Mr Rawlings.
It was touch and go as to whether the will would be able to be rectified when Mr Marley contested it. This was not purely a clerical error, such as a typo, which would have been easy to fix. This was a will that was, in reality, unsigned, at least by the person to whom it related. In the end, the judge found that, since Mr Rawlings’ intentions were clear, the will could be changed to reflect that, and therefore Mr Marley could inherit his share.
The court case took time, money, and energy to resolve, all of which could have been avoided if the solicitor, the witnesses, and the testators themselves had taken the time to read what was being signed.
Probate doesn’t have to take a long time. It doesn’t have to be complicated. And in most cases it can be dealt with fairly swiftly. However, there are some issues that can cause probate to take much longer than usual – one of these is if a will goes missing. Losing a will can add years on to the time probate might normally take, and it can cost many thousands of pounds to get to a mutually agreeable result.
The problems start right at the beginning. A grant of probate is usually only issued when the original will is submitted. A copy might be accepted, but it is very rare for this to happen, and can only happen if the copy will can be absolutely guaranteed to be what the testator truly wanted. If anyone submits a copy of a will, they will have to give good reasons as to why they are not submitting the original. This is because the testator may well have decided to revoke their will – they may have destroyed their original will and failed to make a new one (or made one but not told anyone where it was kept). Probate will only be granted when it is definite that the will says what the testator wanted it to say.
If the executor is providing a copy will in order to apply for the grant of probate, anyone who might inherit under the intestacy rules will need to agree to this happening. It may, however, be a tricky task to persuade these beneficiaries to consent. If the person would inherit under intestacy laws because there is no will, but would not inherit as per the copy of the will, then it is not in their best interests to agree to allowing the copy to be used. If they don’t agree and the original will cannot be found, it could be the beginning of a long court case.
Sometimes, however, a copy will is all there is, and that is what must be used. If this is the case for you, then we can help you. Simply contact us, and our many years of experience in dealing with cases such as this will ensure the smoothest possible path for you.
A seven year jail sentence has been handed down to a man who carried out a scam that revolved around a supposed inheritance, and duped two people out of almost $2.4 million.
Don Brendan Robert was given the long prison term so that it could act as not just a punishment, but also as a deterrent, as more and more of these kinds of scams are being carried out. Robert pleaded guilty to just 25 charges of fraud, although he was charged with a total of 450.
Robert used the money that he scammed out of two separate men to fund a lavish lifestyle, and pay off previous debts. The scan revolved around the lie that he had been left a large amount of money by a relative, but that probate was taking a long time. Due to this, the managed to persuade two gentlemen to lend him large amounts of money after promising them that he would not only pay them back, but give them a percentage of his ‘inheritance’ once it came through.
Robert continued these lies for three years, spinning more and more elaborate tales as to why the inheritance had not yet come through. The main problem was that these imaginary funds had been seized by the Singapore government, and had been frozen by the Commercial Affairs Department.
Robert’s scam is thought to be the largest ever carried out in Singapore.
Discovering more about your family tree, finding out more about where you come from, can be a rewarding and fascinating hobby, but if you have made just one small mistake somewhere down the line and end up spending hours – days, even weeks – researching the wrong people… it can be frustrating to say the least. So how can you ensure that the people you are looking into really are the right ones?
There are a few tips that will help you.
Firstly, don’t be tempted to miss anyone out or skip generations. Although not everyone in your family is going to be the most interesting of people, if you skip past them, you might take a wrong turn and if you do that, it can be hard to get back on track. The same is true if you think you already know everything about one particular person. This usually happens when it comes to parents or grandparents. But if you fail to do the research that you would do for other generations just because you think you know the people you are looking into, you might miss out on a major part of their lives, which could lead to additional family that you didn’t realise existed.
Next, don’t assume that a family title means the same then as it does now. Calling someone a cousin, aunt, uncle, or even using the names ‘junior’ and ‘senior’ might not actually mean that really are a cousin, aunt, uncle, or related in any way. These terms were used much more loosely centuries ago. For example, if there were two men of the same name in a village, they might have been designated junior and senior, even if they weren’t actually related. Don’t assume that people were married either, just because they have the same name. If a woman was living in a house with a man, she may have been his sister-in-law, or even a family friend. Dig deeper to be sure.
Thirdly, don’t forget to note down where you found your information. Write down the website, book details, even microfilm and newspaper dates. Make sure you know where the information came from. This is especially important if you come across seemingly conflicting information.
Next, make sure that what you’re writing down really makes sense. If not, you may have made an error somewhere along the line, and it’s best to find that out sooner rather than later. Common mistakes that might go unnoticed at first could be that someone’s wedding takes place just a few years after they were born, or that a woman’s child was born after their mother had died! Check the dates to ensure that nothing odd has happened.
The more organised you are in your research, the easier it will be – and the fewer mistakes you are likely to make. Create or find a filing system that allows you to save your work in the best way for you, depending on how you do your research. Make sure that you have somewhere to store hard copies of your research too, and not just digital copies on your computer.
Just because something has been published, that doesn’t make it true. You should always double check any ‘facts’ that you find, and verify any research that has been done previously. This is also important for when someone else has already started your family tree, and you are completing it. Check their work before starting your own.
Finally, DNA can be a really useful tool. Although your DNA won’t be able to give you a direct link back to everyone in your family tree, it will be able to offer you some insight into where you can from, and show you were you should be looking – literally – for your ancestors.