Guardianship and Parental Responsibility

Guardianship and Parental Responsibility

By | Guardianship, Parental Responsibility | No Comments

An appointment of testamentary guardians is rarely considered by a parent, but it is highly desirable that they should consider who should look after their children if both were to lose their lives while their children are under eighteen. The appointment of a testamentary guardian can only be made by a person with parental responsibility. What is parental responsibility? The legal definition of parental responsibility is the rights, duties, powers, responsibilities and authority which by law a parent has in relation to their child and their property. This includes but is not limited to: Providing them with a home maintaining them; Choices about their medical treatment; How and where they are educated; Deciding their name. It does not include a duty to maintain the child financially, all parents have this duty regardless of whether they have parental responsibility. More than one person can have parental responsibility for the same child…

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Transferable Nil Rate Band

By | NRB | No Comments

Every person has their own nil rate band (NRB). This is the amount that can be distributed on their death without inheritance tax being payable. Since 9th October 2007, an unused NRB from a deceased spouse can also be claimed when the surviving spouse dies. There are a number of misconceptions about the transferable NRB that we wish to make clear. How much is available to be transferred? The amount available to be transferred is calculated on the basis of what percentage was used. That percentage is then applied to the value of the NRB at the date of second death. For example, Bob died in August 2006 when the NRB was £263,000. He left £65,750 worth of assets to his daughter and everything else to his wife Ann. 25% of his NRB would be used on his death to cover the assets passing to his daughter, leaving 75% available…

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WillPack Professional Indemnity Insurance & Liability

By | Insurance | No Comments
Sorry, this section of the WillPack website is for Members Only. If you would like to join WillPack you can register by downloading and completing our application forms.

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Reminder: Office of the Public Guardian Refund Scheme

By | LPA | No Comments

It has been over six months since the Office of the Public Guardian (OPG) announced their power of attorney refund scheme. Recent evidence however shows that only around 15% of those entitled to a refund have applied to the OPG. Due to this, we would like to put out a reminder about the scheme and how clients can apply for a refund. Please note that WillPack is not able to assist with applying for refund. Only the donor, attorney or personal representatives (if the donor is deceased) can apply. Overview Between the period of 1 April 2013 and 31 March 2017, the operating costs of the OPG were reduced as their process became more efficient. The OPG’s application fee remained the same and as a result the OPG generated a surplus. The exact amount refundable depends when the power of attorney was registered at the OPG. Registered April to September…

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Co-ownership and Severance

By | Property | No Comments

Where more than one person owns property, there are two ways in which the owners may own the equity of the property. Joint Tenants A joint tenancy is the most common and standard method for property to be held. Under a joint tenancy, each owner does not have their own ‘share’ in the property. Instead, all owners equally own the whole property together. If any of the owners die, the deceased’s interest in the property passes automatically to the surviving owners without the need for a Grant of Probate. This is known as the right of survivorship. Due to this, a person’s interest in a property held as joint tenants is not giftable under a Will, as their interest would not form part of their estate on their death. However, once one owner remains they will own the property solely and can deal with it as they wish. Please note…

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Considerations when appointing Executors or Trustees

By | Executor, Trustees | No Comments

Most testators will usually appoint their surviving spouse or partner, children, close family or friends to act as their executors and trustees. Whilst there is nothing wrong with appointing family members and friends, there are a number of points that a testator may need to be advised of. Personalities Where multiple people are being appointed, they should consider the personalities of those people and relationships between them. It would be highly inadvisable for example to appoint children to act together if it is well known that they do not get along, particularly for appointments as trustees for trusts that may last for a long amount of time, such as a discretionary trust. Location Executors do need to be physically present to deal with the testator’s affairs. Appointing executors who live at the other side of the country or even abroad may not be the best decision if there are other…

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Paying Fees to an Attorney

By | LPA | No Comments

Reasonable Expenses All attorneys are able to claim reasonable expenses they incur whilst acting for the donor. This includes expenses such as postage, travel costs and the cost of an accountant preparing annual accounts. This does not have to specifically mentioned in the Lasting Power of Attorney (LPA) itself but could be included should the donor wish. Professional Attorneys There is debate on whether a professional attorney, such as a solicitor or an accountant, could be paid a fee for their services if there is no express power included in the LPA. The Office of the Public Guardian (OPG) suggest in their PN01 practice note that a professional cannot charge if there is no express power included in the LPA. We would therefore advise that if a professional attorney wishes to charge fees for their services, then a charging clause should be included as an instruction in the LPA. It…

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Intestacy

By | Intestacy | No Comments

Intestacy will occur when a person has not left a valid will, or if their will does not dispose of all of their estate (for example if all of the residuary beneficiaries had predeceased). Any assets that would not pass into the estate will not pass via intestacy. See our previous newsletter for more information on this. The exact distribution under the intestacy rules is set out in S46 Administration of Estates Act 1925. The distribution will vary depending on the value of the estate and what members of family survive. Beneficiaries will inherit the estate after any debts, funeral expenses, taxes and other liabilities have been paid. Spouse is alive – Intestate leaves no issue If the intestate’s spouse survives by 28 days, and there are no surviving issue of the intestate, the surviving spouse will receive the entire estate. Spouse is alive – Intestate leaves issue If the…

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Transferring and Tapering the Residential Nil Rate Band

Transferring and Tapering the Residential Nil Rate Band

By | RNRB | No Comments

Transferable RNRB Any unused Residential Nil Rate Band (RNRB) is available to be transferred to a surviving spouse as long as second death occurs on or after 6th April 2017. On second death, the surviving spouse’s Personal Representatives (PRs) are able to claim both the deceased’s RNRB and the unused RNRB of their late spouse, similar to the procedure used for claiming the transferable Nil Rate Band. This applies even if first death occurred before 6th April 2017. The first to die would not have used any of their RNRB, so 100% of their RNRB will be available to be transferred (unless their estate exceeded the Taper Threshold and some RNRB is tapered away). Whether the first to die owned a qualifying residential interest on their death is irrelevent for the purposes of transferring the RNRB. All that matters is whether the deceased spouse used it or not. Please note…

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Revoking a Will

Revoking a Will

By | Drafting, Wills | No Comments

There are four ways that a will may be revoked. Marriage/Civil Partnership As a general rule, a marriage or formation of a civil partnership revokes any will that a testator made before the marriage or civil partnership under S18 and S18B Wills Act 1837 respectively. There are however some exceptions to this rule. If it appears from the will that at the time the will was made the testator was expecting to be married to, or from a civil partnership, with a particular person and the testator intended that the will should not be revoked by that marriage or civil partnership, the will would not be revoked. It is currently unclear whether a will can be written to be in anticipation of either a marriage or civil partnership to a particular person, for example for a same sex couple who wish to formalise their relationship but currently have not decided…

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