A Short Guide to Wills and Estate Planning

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While no one likes to think about death or ill-health, a few simple decisions now can help you keep control of your assets and reduce stress for you and your loved ones later in life.

A strong estate plan has three main components – Wills, Trusts and Lasting Powers of Attorney (LPAs). While these structures can be complex, they are actually very simple to set up, and well worth having in place.

In this guide, we explain how they work and why it’s a good idea to have them.

Wills

The first step in putting your estate plan in order is to write your Will.

This notifies your representatives (or Executors) how your assets should be distributed on death. It is a legally binding document which can help your family to avoid any uncertainty or disputes when dealing with your estate.

A basic Will might direct your assets to be passed to your spouse, or to your children on second death.

However there are multiple options available. You can use your Will to create Trusts, leave charitable legacies and to make gifts to any number of individuals you choose.

The more complex your situation, the more important it is that you seek legal advice to ensure that your wishes can be carried out.

Intestacy

Intestacy, or dying intestate, means passing away without a Will. In this situation, your estate would be distributed to your family members according to a strict priority order rather than as directed by your wishes. If you have no family, your estate would pass to the Crown.

The rules of intestacy do not provide for:

•          Unmarried partners, as common-law marriage is not recognised under the law.
•          Step-children
•          Close friends, carers or anyone else who is not a relative (even if there is no family)

As well as excluding certain important people from inheriting, the laws of intestacy could result in your assets passing to someone you have very little contact with. For example, the laws of intestacy would prioritise an estranged parent or sibling over a long-term partner.

The intestacy rules can be especially challenging in the case of second marriages or blended families.

The specific order of priority applied to your estate will depend on where you are in the UK as well as your family situation.

The good news is that writing a Will is fairly simple and inexpensive. It can be done by a solicitor or other qualified professional. The rules of intestacy are simply the default and if they don’t suit your situation, a Will can ensure that your assets pass to the important people in your life with minimal upheaval.

Trusts

A Trust is a legal relationship created by a Settlor with their Trustees, this can set up to hold money or other assets. Any assets owned by a Trust will be separate from your own personal finances, but still allowing you a degree of control.

You might use a Trust to:

•          Move wealth outside your estate, reducing your Inheritance Tax (IHT) bill.

•          Set aside a legacy for a person or category of beneficiaries, while still being able to take some of the decisions.

•          Protect your assets from events outside your control, for example beneficiaries divorcing, becoming bankrupt, losing capacity, or undertaking poor financial management.

•          Allow one person (such as your spouse) to have the use of an asset during their lifetime (for example an income, or the right to live in a property) while retaining the capital for someone else.

•          Have any life policy benefits paid outside your estate, minimising delays and administration, as well as saving IHT.

•          Create a charitable legacy.

Trusts can come into force during your lifetime or after your death. This will depend on the type of Trust and what you want to achieve.

As the person creating the Trust, you will be referred to as the Settlor. You will also need to appoint:

•          One or more additional Trustees, who manage and distribute the Trust’s assets.

•          Beneficiaries, who may receive capital or income from the Trust in varying proportions.

The main types of Trust are:

•         Bare/Absolute – this type of Trust is treated in the same way as an outright gift, although the Beneficiaries are not given complete control. They will normally become absolutely entitled to the Trust’s assets when they reach the age of majority.

•           Discretionary – this allows the Trustees discretion over how and when to distribute the Trust’s funds.

There are various kinds of Trusts within these two categories, ranging from a simple life company Trust that you may set up alongside your life insurance, to a more substantial structure which can include multiple assets, requiring a Trustee bank account, as well as tax, legal and investment advice.

In general, the more effective a Trust is for IHT planning, the less flexible it is.

Trusts are complex and there can be tax consequences. For example, higher rates of tax apply to assets owned by a Discretionary Trust than most personal assets. Depending on the value of the Trust, a tax charge can apply at outset, every ten years, and whenever money is paid out to the beneficiaries.

Lasting Powers of Attorney (LPAs)

An LPA allows you to nominate a trusted relative or friend to make important decisions for you when you can no longer make these choices for yourself.

If you lose capacity and do not have a Power of Attorney in place, your family or carers will need to make an application to the Court of Protection. The Court will appoint a ‘deputy’ to act in your interests.

This means that important decisions over your care, medical treatment and financial management can be taken out of your hands. This can result in delays, conflict and stress for everyone involved.

The two types of LPA are:

•          Property and Financial (paying bills, managing investments, and maintaining property)

•          Health and Welfare (care, medical treatment, and end of life decisions)

Once created, your LPA needs to be registered with the Office of the Public Guardian.

An LPA must be created while you are still fully capable of making choices for yourself and understanding the process involved. While many people put off these decisions until later in life, the irony is that by the time you start to need an LPA, it will be too late to create one. It makes sense to create your LPA at the same time as your Will.

Please do not hesitate to contact a member of the team to find out more about your estate planning options.