Will & Probate - HarrisdaSilva
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willprobate

  • Making or amending a Will at any time
  • Handling the estate (the property and assets) of another person after death
  • Explaining Powers of Attorney & Enduring Powers

To many people, the thought of making a Will at a young age is just being pessimistic, as the concept of death, and the responsibilities it entails are not urgent issues, but this is a very important matter which should be addressed as soon as possible.

 

Making a Will is about providing for your loved ones in the event of your death, by arranging for executors, (people whom you trust to ensure that the terms of your will are carried out after the date of your death) to identify and value all of your assets and debts, make an application, if required, for a grant of the probate, to settle your income tax affairs and pay any debts, pay any inheritance tax due on your death, and to carry out your instructions as set out in your will.

Trusts

What is a Trust?

In some cases, because of their age or mental incapacity, beneficiaries may not be able properly to look after assets themselves. A trust would therefore be created under such circumstances in order to protect their interests.

Trusts can also be created for tax-planning reasons. The most usual types of trusts which can be created are:

Bare Trust

This type of trust is not, strictly speaking, a trust at all.

An asset is held in the names of trustees, but the trustees only nominally own the assets within the trust. The real owners are the beneficiaries. Such trusts arise commonly when children are entitled to assets but they are not old enough to have legal authority to deal with those assets.

Discretionary Trusts

The trustees of a discretionary trust have discretion as to how they treat the assets within the trust, and this applies to both to capital and income in the trust.

The trustees will not normally have absolute discretion, as creator of the trust will stipulate the people or charities in respect of which discretion can be exercised. If a settlor is concerned about the way in which trustees can exercise their discretion then, in the case of a lifetime settlement the settlor can be a trustee himself. In all settlements the settlor can also sign a letter of wishes, which gives non-binding instructions to trustees as to how the settlor would wish their discretion to be exercised in the future.

Interest in Possession Trust

This is a trust whereby a person (normally known as a tenant for life) is entitled to income from the trust but is not entitled to the capital.

As an example, such a trust would be established when, say, one spouse dies and wishes to leave sufficient funds to the surviving spouse for the rest of his or her life, but at the same time wishes to ensure that he or she cannot dispose of the capital assets.

Accumulation and Maintenance Trust

This type of trust is a special type of discretionary trust. The beneficiaries must all be grandchildren of a common grandparent (not necessarily all children of the same parent), and a beneficiary must receive part or all of the income on or before his or her twenty-fifth birthday. Until then, the income must either be used for his or her maintenance, education, or benefit, or be accumulated.

What are the responsibilities of a Trustee?

The provisions of the Trustee Act 2000 are now in force and can affect any trusts, eventhose established well before the Act was made.

There is a duty on trustees to invest funds in their care, with a view to gaining a financial return for the trust. In performing this duty they must exercise proper care, which requires more than just good faith and honesty. Trustees have to be sufficiently proficient so as to observe some standard investment criteria, including:-

  • Suitability to the trust of the kind of investments which may be made
  • Trustees have to exercise their duties honestly and fairly, and the circumstances of each trust must be taken into account on an individual basis.

Probate

Executors appointed under a will, would usually have to obtain a grant of probate before they have authority to deal with the assets in an estate. The procedure for obtaining a grant of probate will vary depending upon the nature of the assets and their value.

If an estate is “excepted” (i.e. the value of the assets and relevant lifetime gifts is under a certain figure) then executors should only have to sign an oath before forwarding the will and the oath to the Probate Registry. A fee will be payable to the Probate Registry (currently £50) and a grant of probate should follow within three to four weeks. Once a grant of probate is received then the executors have authority to deal with assets within the estate and can proceed with the administration.

If the estate is not “excepted”, then in addition to the above, executors will need to complete a detailed Inland Revenue account and pay any tax that may be payable on the death. There are stringent penalties imposed upon executors by the Inland Revenue if the executors fail to include in the Inland Revenue account full details of all assets.

Intestacy

If you die without having made a will then you are said to have died “intestate”. If this happens then the laws of intestacy govern who is to inherit your estate and this can lead to unexpected and undesired results. For example, if you do not leave a will then:-

  • If you are married your spouse will not automatically inherit all of your estate.
  • If you are not married your partner will not inherit your estate.
  • You will not have made any provision for who should be appointed as guardians for your young children.
  • You have not appointed anyone to act as your executor.
  • The administration of your estate is likely to take significantly longer to complete than if you had left a will.

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