Second Death Gifts

By | Gifting, Inheritance, Wills | No Comments

Many couples making Wills wish to leave bequests of particular items, sums of money, or a share of their estate, but only when both testators have passed away. So how can we ensure this happens? The way to ensure that a gift is only made on second death is to place the gift(s) in both Wills, and ensure there is a condition that states the gift should only be made should the partner/spouse has predeceased the testator. For example, ‘If my wife Susan Smith has predeceased me, I give…’. When making a second death gift, the testator is giving this gift to their partner/spouse on their death as part of the Residue of their estate, therefore on the death of the survivor, the gift is made payable from the survivor’s estate. If the clients have requested a second death gift in their Will, but it has only been placed in…

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Hotchpot

By | Inheritance, Property, Wills | No Comments

For parents who have more than one child, it may be necessary during their lifetime to make monetary advances to help a particular child or children but not all at that time. For example; the purchase of a house or to help clear a debt problem. The advancement can be either be made as a gift or a loan. Upon the death of the parents, in most cases they would wish for all of the children to have benefitted the same so that there is no unfairness felt between the children. The above can be achieved simply by the inclusion of a ‘Hotchpot’ clause within the Will. Whether the advancement was made either as a gift or a loan is irrelevant because the clause will work in the same way. The Hotchpot clause relies on the testator keeping a record outside of the Will of any gifts made and in…

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Potentially Exempt Transfers (PETs)

By | Inheritance, Wills | No Comments

Section 3A of the Inheritance Tax Act 1984 provides provisions specifically for Potentially Exempt Transfers (PETs). A PET is a transfer of value which is made during the lifetime of an individual; in other words, it is a gift of an asset and provided certain conditions are met, the PET can be exempt from IHT. The conditions which must be met are: The individual must have made the transfer on or after 18th March 1986. It must be a gift to another individual or to a specified trust. No benefit from the transfer must be retained. Individual must survive 7 years for the full value of the asset to fall completely out of the Estate for tax purposes. Where the death occurs after 3 years following when the transfer was made, taper relief applies and has the effect of reducing the tax liability on the transfer rather than the full…

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Disabled/Vulnerable Person’s Discretionary Trusts

By | Guardianship, Inheritance, Legal, Trustees, Trusts, Wills | 2 Comments

The Disabled/Vulnerable Person’s Discretionary Trusts These are useful trusts to use when your client has a child or another relative with a disability and who needs constant support. If this person inherits from a Will directly, this may affect what disability benefits they may receive. We can put the assets into a Discretionary Trust with the disabled beneficiary as the Principal Beneficiary. As with any other Discretionary Trust, there must be more than 1 appointed beneficiary. The main reason for this is because whenever a person in receipt of disability benefits receives an inheritance, the Local Authority will want to assess them. This means if they hold over a certain threshold (this can vary) the Local Authority can cut the benefits that person receives. If the estate of the testator is due to pay any IHT. This will need paying before the assets are passed into the Trust, at 40%…

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Introduction to Guardianship

By | Guardianship, Inheritance, Intestacy, Legal, Uncategorized, Wills | No Comments

Appointment of Testamentary Guardians The appointment of testamentary guardians is rarely considered by 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: 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 at the…

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Flexible Life Interest Trust

By | Inheritance, Legal, Property, Trustees, Wills | One Comment

Flexible Life Interest Trust  Due to more complex estates and greater wealth, greater flexibility is essential to cope with any future changes to the family structure (such as new family members) and changes in the tax regime. The best way to gain the maximum flexibility is by the use of a Flexible Life Interest Trust (FLIT). How a FLIT works The residue of the estate is held on trust for the surviving spouse or civil partner for their lifetime, after which or when the life interest is ended, a discretionary trust will arise in favour of nominated beneficiaries, usually children and issue. Trustees are given a number of powers. They can grant the income of the trust fund to the surviving spouse/civil partner and have the power to grant the capital of the trust fund to them as either absolutely or as a loan, which would be repaid when the…

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Roles of executors and trustees

By | Executor, Inheritance, Legal, Trustees, Wills | 2 Comments

Who are trustees? A trustee is someone who is given legal responsibility to hold property in the best interest of or for the benefit of someone else (the beneficiaries). As the name implies, the trustee acts under a “trust” to do what is best and to act in the interests of the beneficiaries and not themselves. Number of trustees No more than 4 trustees can be appointed to act at once, however reserve trustees can be appointed. If the property of the trust includes land a minimum of 2 trustees must be appointed. Where a Trust is inserted within a Will in favour of a spouse (as a beneficiary) upon first death, it is almost always advisable that a MINIMUM of two other trustees be appointed to act jointly with the spouse. This is in order to prevent any conflict of interest due to the spouse acting as the sole…

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Intestacy

By | Inheritance, Intestacy, Legal, Wills | No Comments

Intestacy can be a complicated issue. Difficult to wrap your head around the ins and outs, if you haven’t worked much with it before. Below we’ve outlined the the rules in a simple flowchart to give you an idea on who will benefit from your estate if you a) have no Will or b) have no further levels of residue outlined in your Will.

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Understanding the decision in Ilott v Mitson: Does your will now mean nothing?

By | Executor, Inheritance, Legal, Wills | No Comments

The recent case of Ilott v Mitson caused a bit of a stir in the media over its possible impacts on testamentary freedom in England and Wales. ‘Your will means NOTHING’ was the headline in the Express, with similar headlines in the Mail and the Telegraph and much of the media named it as a landmark or ground-breaking case. Much of the reporting of the case was done without a full account of how the decision was made and is likely to be an overreaction. The Law The Inheritance (Provision for Family and Dependants) Act 1975 allows a child to apply for an order (for a lump sum or periodical payments) where the deceased has not made reasonable financial provision for their maintenance. In such a case the court can make an order for a lump sum or periodical payments that will, directly or indirectly, pay for the costs of…

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