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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Accounts System

Accounts System

By | Admin | No Comments
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What Cannot be Gifted by a Will

What Cannot be Gifted by a Will

By | Gifting, Wills | No Comments

A person’s will can deal with most property that they own at the time of their death. However, there are a number of assets that would not pass into a person’s estate at their death. Life policy proceeds Life policy proceeds may form part of a deceased’s estate and can be gifted by their will. However it is relatively common for these to be placed into trust so that they do not form part of the deceased’s estate. The intentions behind this are: As the proceeds are outside of the estate, they do not need to pass through probate and therefore the beneficiaries can receive the proceeds sooner. By placing the proceeds in trust, those proceeds will not be taken into account when inheritance tax is calculated (unless it is in trust to pay off a mortgage). If life policy proceeds are in trust, clients should contact their policy providers…

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Administration Notes

Administration Notes

By | Admin | No Comments

It has now been a couple of months since GDPR was introduced and the dust has settled slightly. New administrative procedures have been implemented and it is business as usual. WillPack has had a few requests for clarification on the reasons behind the choices we took regarding GDPR so this article will hopefully explain those. Background For WillPack the biggest change has been in how we receive instructions and send out drafts. One of things to come out of GDPR was that you can’t send personal data via email. GDPR defines personal data as: “…any information relating to an identified or identifiable natural person (“data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity…

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Who can apply under the 1975 Act?

Who can apply under the 1975 Act?

By | Inheritance Tax | No Comments

Whilst any person has testamentary freedom to leave their estate however they see fit, they should be aware that their freedom is slightly restricted by the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act). The 1975 Act gives the court powers to order financial provision from a deceased’s estate to benefit certain applicants. S1 of the Act covers who can apply to the court based on a lack of reasonable provision. Spouse/civil partner The surviving spouse/civil partner of the deceased (including a judicially separated spouse). Former spouse A former spouse/civil partner who has not yet remarried or formed a new Civil Partnership (noting that their divorce/dissolution may restrict the ability to apply under the 1975 Act). Cohabitant A person who lived with the deceased for period of at least two years ending immediately before the date when the deceased died and they lived as if they were…

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Inheritance Tax Planning for Unmarried Couples

Inheritance Tax Planning for Unmarried Couples

By | Inheritance | No Comments

The legal position of cohabiting couples varies to that of a married couple and they do not receive some of the benefits that married couples receive. Inheritance tax planning that is common place and simple for married couples may not therefore be the best option when it comes to unmarried couples. A married couple can easily leave everything to each other IHT free and on the death of the second benefit from two Nil Rate Bands (NRB) (and potentially two Residential NRBs). Unmarried couples however do not benefit from either the spousal exemption for IHT or the transferable NRB. The estates of an unmarried couple leaving everything to each other would therefore be considered for IHT on both first death and second death and without the benefit of two NRBs on second death. This could lead to an unnecessarily high IHT charge on second death. Example John and Jane are…

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IPDI vs FLIT

By | Trusts | No Comments

Complex families often come with complex requirements to meet their long-term goals, and matters can be made more difficult when each testator has separate goals or concerns in mind. These goals usually revolve around the inheritance the children are to ultimately receive and when they receive it, and it certain cases, if they inherit at all. Using a Life Interest of the Residuary Estate can cater for most family needs for a number of reasons; On first death, the surviving spouse will be the Life Tenant. They will be entitled to all income generated by the trust and the trust can allow them access to the use of capital at the Trustees’ discretion if desired; All Life Interest Trusts allow the use of the Transferrable Nil-Rate Band (TNRB) between spouses; Each testator can appoint separate beneficiaries from each other; If the Trustees are given the power to advance capital, it…

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Replacement Attorneys on a Lasting Power of Attorney

Replacement Attorneys on a Lasting Power of Attorney

By | LPA | No Comments

Under an LPA, the donor can name specific replacement attorneys that will step in to act in certain situations. When the replacement attorneys step in will depend on how the original attorneys are appointed. Replacing a sole attorney Replacements attorneys will start acting as soon as the original attorney is no longer able to act (i.e. death, mental incapacity or disclaims). Unless the LPA says otherwise, the replacement attorneys will act jointly. Replacing attorneys acting jointly Replacement attorneys will step in to act as soon as one original attorney is no longer able to act. The remaining original attorneys will no longer be able to act. If multiple replacement attorneys are appointed, they will also act jointly, unless the LPA states otherwise. Replacing attorneys acting jointly and severally Replacement attorneys will step in as soon as one original attorney is no longer able to act. The replacement attorneys will act…

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Advance Decisions and Health and Welfare LPAs

Advance Decisions and Health and Welfare LPAs

By | LPA | No Comments

An advance decision is a decision made by a person refusing consent to the giving or continuing of certain medical treatments. This statement is made whilst they have mental capacity, in anticipation of a time in the future when they no longer have capacity. Advance decisions are also commonly referred to as an advance decision to refuse treatment, a living will or an advance directive. As they deal with medical treatment after a person has lost capacity, there is overlap between them and a health and welfare LPA. The exact relationship between the two documents depends on which document was created first. If an advance decision is created after a health and welfare LPA, attorneys cannot consent to any treatment refused in the advance directive. Being the later document, the advance decision will overrule authority granted to the attorneys over those specific decisions. If a health and welfare LPA is…

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Survivorship Clauses and Commorientes

By | Inheritance Tax | No Comments

Survivorship clauses between spouses will often include provisions so that the survivorship period will not apply if they both die in circumstances where it is uncertain who survived the other, for example in a plane crash. The reasons for this inclusion is a very specific inheritance tax advantage where spouses die together, and it cannot be determined which of them died first. In succession law, it is impossible for two people to die at the same time. Instead, S184 Law of Property Act 1925 provides that where the order of deaths are uncertain, a younger person is presumed to have survived an elder person. This is known as the Commorientes rule. This presumption applies to gifts by Will and assets passing by survivorship under a Joint Tenancy. It does not apply to assets passing by intestacy. For the purposes of calculating inheritance tax however, it is possible for people to…

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