Category: Elizabeth Middleton Solicitors

Being married has many benefits, including legal ones. But some people don’t want to go down that route. When it comes to your Will, it’s essential to know what that means for the parties involved. Wills for cohabiting couples are a crucial component of financial planning and future provisions. 

Cohabitation is a new norm. The number of cohabiting couples doubled to 3.3 million in 2017, up from just 1.5 million in 1996. Many people may assume that there would be new legal protections for couples with these numbers in case one dies. 

Sadly, when it comes to inheritance, property, children and dependents, there are no legal protections for couples in this position. Therefore, ensuring Wills are correctly in place is essential to ensuring your partner is protected. 

The Law of Intestacy 

The law of intestacy explains what happens when someone dies without a Will. This law applies differently to married couples, civil partnerships and cohabitees.

The law doesn’t give cohabiting couples any rights. If someone in a cohabiting relationship dies, the other does not automatically receive anything. Here are some instances of what happens in these situations. 

• Lance and Samantha have been cohabiting for a decade but are not married. Lance has £50,000 in savings and a company pension. Lance suddenly dies. Samantha doesn’t get any of his assets. The assets go to his closest living relative (his sister, Amelia). If Lance wants Samantha to benefit from his savings or his company pension, his Will is the only way he can do this. If Samantha has been living with Lance for two years immediately before his death, in the same house, then she will have a legal claim against his estate.  She has to instruct solicitors to bring a claim against Lance’s estate. The procedure is complicated.
• Jenna and Jasmine are married. Jenna dies, leaving behind £100,000 in savings and £100,000 in investments. Jasmine is entitled to everything. She inherits the first £250,000 of everything that Jenna owns and would be allowed 50 percent of what she owned above that figure if they had children
• Tristan and Jessica are not married but have one child – Mackenzie. Jessica suddenly dies, leaving behind £400,000 in savings. This money will bypass Tristan and go directly to Mackenzie. Mackenzie is 14, and so the £400,000 will be held in trust for her until she is 18. Tristan will have a claim against Jessica’s estate if they were living together in the same house, as a couple, for two years before her death.

Cohabiting couples don’t realise there is no legal protection because there’s no legal recognition of their relationship. “Common-law spouse” is often used to describe couples who are not married and aren’t in a civil partnership. But no law recognises this term or any benefits to it. So, Wills are essential to ensuring that a person’s wishes are met in the event of their death. 

Handling Assets

• Money in the bank: If a partner in a cohabiting couple dies, the money in the bank under their sole name goes directly to their estate. The other partner will have no access to it. If there’s a joint account, then the surviving partner will have access to the account. But, part of it could be part of the deceased’s estate. 
• Debts: Any debts accumulated by both partners may be left to the surviving partner solely. They may be left with debt, with no additional inheritance to help pay for them. 
• Property: This part depends on how the property is held by both cohabitees. . If the two are tenants in a common, and one person dies without a Will, their part of the property will pass on to their estate, not their partner. If the property is held by the couple as beneficial joint tenants, then the part belonging to the partner that has died passes to the surviving partner.. 

Couples and Children

When it comes to children, Wills are highly important for cohabiting couples. Partners who are parents have legal rights regarding their children and can make decisions about significant parts of their lives. 

A mother that gave birth to a child automatically has parental responsibility. Still, the father doesn’t unless specific circumstances exist–if he was married to the mother at the time of birth, got married afterward, or his name is on the birth certificate. Issues can arise if one partner dies with responsibility and the other doesn’t have parental responsibility. 

Without parental responsibility or a Will, the surviving partner could be left without any rights to ensure the child remains with them. 

Claims Made Against the Estate

A surviving unmarried partner can claim against the deceased partner’s estate under the Inheritance (Provision for Family and Dependants) Act of 1975 if there’s no Will. A claim like that gives reasonable financial provision necessary for the maintenance of the surviving partner. 

This takes into account facts like their own financial circumstances and the estate’s value. But, there are no guarantees that the surviving partner will obtain the estate. The process can also be time consuming and expensive. Having a Will in place is much simpler, more straightforward, and far less stressful. 

The Benefits of Wills

• Ensure the surviving partner is entitled to cash or assets the deceased would like them to have. A Will can lay out the details, whether part or all of their assets get left to their partner. 
• Provides security when it comes to property ownership. For instance, if the property is held as tenants in common and the deceased’s share gets left to a different beneficiary, the survivor has no security in the property. . Without a Will, a proportion of the property can become legally owned by someone else-likely the deceased’s closest living relative. This situation can cause significant issues, especially if that person wants to sell the property. 
• Issues with children are secured. A Will will lay out the inheritance and how children will be cared for in the event of one’s death. 
• Avoids the need for a surviving partner to have to make a legal claim on the deceased’s estate. Making a legal claim can be messy and complicated. Avoiding the need to do this is almost always in the best interest of all parties involved. 
• Minimises the possibility for more heartache or issues with relatives who have inherited what the deceased partner would have wished the survivor to have because of intestacy laws. 
• Proper estate planning to minimise the impact of inheritance tax where it’s applicable. 

How to Tie Up Your Loose Ends

Wills for cohabiting couples give security and peace of mind for the future. Although it’s never possible to predict when something will happen, a Will in place will help cohabiting couples have some protection against any legal problems when it comes to being unmarried in the event of a partner’s death. Wills can lay out all the details of someone’s wishes so that everything will be evident in the event of one’s death. 

Let Elizabeth Middleton Solicitors Help

For assistance in preparing your Will and ensuring that all witnessing and signatures are conducted lawfully, reach out to Elizabeth Middleton Solicitors. We are pleased to offer virtual, COVID-safe options to ensure that your estate is properly planned and your wishes made known. 
Contact us today to learn how our services can help you and your family prepare for the future and protect your estate.

As you are looking through your loved one’s belongings, you wonder what you will do with it all. Who gets the family china? What did they want to be done with their residence? Which of the relatives will receive a portion of the money left in the deceased’s bank accounts?

Unfortunately, people often have to decide each of these things when there isn’t a will to be found. By not having a will, families are left in the dark about what to do with the deceased’s belongings and how to proceed legally.

Figuring out Who is in Charge of the Estate.

When a person dies without a will, this is known as “dying intestate”. This means the law decides who inherits the estate by criteria called “intestacy rules”.

A relative or friend can choose to sort out the estate, but they also have to take care of the estate promptly. For someone to take over the administration of the estate, the person wanting to be responsible will need to apply for a “grant of letters of administration”. 

The grant will allow the administrator to value the estate, pay any debts and distribute the estate according to the intestacy rules. It will take quite a bit of time to sort out an estate if the person who died wasn’t prepared, so it is best to apply for probate as soon as possible. The sooner you have administrator status means the sooner the heirs to the estate can receive their inheritance.

Who Will Inherit?

The intestacy rules are laid out so only close relatives will receive anything from the estate before distant relatives. It is laid out in this order:

#1. Spouse or Civil Partner

A spouse or civil partner will receive the entire estate if there are no children. 

If there are children and a surviving spouse or civil partner, the surviving spouse or partner will receive: 

• The first £270,000 of the estate
• Half of anything left over
• The deceased’s personal possessions

The children will receive what is left. This doesn’t include step-children who aren’t legally adopted. Step-children have no stake in the inheritance unless they have been adopted before the deceased’s death. If step-children are treated as children of the family and you want them to inherit any of your estate you need a will to state your wishes.

#2. Offspring

If the deceased was not married , but had children who survived him, they  will inherit everything. It will be divided equally among his  children.  

If there is no legally binding marriage at the time of death but the dearly departed had a partner who was living with him, the partner’s position is precarious.  The complexity of the partner’s situation depends on whether they lived with the dearly departed in the same house for two years before the death. If it’s less than two years, they are not entitled to any of the loved one’s estate, unless they owned assets jointly. If they owned property jointly, they will have to pay part of the inheritance tax liability due from the deceased’s estate, if the estate is taxable.

If the partner lived with the deceased for two years immediately before the death, as long as it occured in England or Wales, the partner will be entitled to a claim for maintenance. Unfortunately they have to engage solicitors to start court proceedings to make sure that they get what they are entitled to, under their loved one’s estate. Engaging solicitors for this type of claim is expensive especially if it goes to court. Costs of over £25,000 are not uncommon. 

Depending on the relationship with any children that the dearly departed may have, the partner may not even be allowed to take part in the funeral preparations. This can be very stressful and painful for any surviving partner, especially if they lived with the departed for a long time.

The myth of the common-law wife or husband does not exist.

#3. Grandchildren

There is a possibility the deceased may not have any living children left. It is the grandchildren who inherit if that is the case. 

#4. Parents

The deceased’s parents are the next to receive the inheritance if the dearly departed died without offspring or adopted children. This doesn’t include step-parents. Step-parents have no legal standing to receive anything from the estate. If a child has been brought up by a step-parent and sees that step-parent as their parent, the child needs to have a will giving the step-parent whatever they wish them to have.

#5. Siblings

Siblings will only receive the inheritance if there are no offspring, grandchildren, or parents. This does include half-siblings. It does not include step-siblings. 

#6. Nieces and Nephews

Say the deceased is the last of the family’s brood left. When they die, the nieces and nephews will inherit the estate. 

#7. Grandparents

Grandparents are the next to be granted the inheritance if there is no one else. This does not include step-grandparents.

#8. Aunts or Uncles

The next in line are aunts and uncles. This doesn’t include the step-aunt or step-uncles. It does include any half-aunt or half-uncles the deceased may have. 

#9. First Cousins

First cousins will inherit the estate if there are no aunts or uncles left. This does not include any step-children the aunt or uncles may have unless they have been legally adopted. 

#10. The Crown

If there are no living blood relatives left to inherit the state, the entire inheritance will go to the Crown. This is a process known as “bona vacantia”.

Bona Vacantia means any vacant goods. The ownerless property is given the name “bona vacantia”, and by law, then passes to the Crown. 

The Treasury Solicitor acts on the Crown’s behalf to administer the estate of people who pass intestate without blood relatives. Assets and other ownerless goods are collected by the Treasury Solicitor and become properties of the Crown. 

What Happens to Jointly Owned Property?

There are many cases where a home is owned jointly by someone who is not a blood relative. They are called “joint tenants” or “tenants in common”. 

If the deceased passes away and the house is owned by both parties as joint tenants, it is not considered part of the estate. This means if one person dies, the other will inherit their share, even without a will. 

However, if the property has the owners listed as tenants in common and one dies, the shared half of the property isn’t automatically given to the other owner. The intestacy rules  are followed if there is no will and whoever is next in line for the estate now owns the other half of the home. 

Who Can’t Inherit if there is no Will?

When there isn’t a will, it makes a challenging situation for everyone in the deceased’s life. Without a will, anyone who is not in a legally-recognised relationship with the person cannot inherit any of the estate. This includes:

#1. Unmarried partners

Common law partners do not exist.  Therefore any partner who lives with the dearly departed needs a will to give them authority to administer their loved one’s will. As heartbreaking as it sounds, there isn’t a legally-recognized relationship, and it goes to a blood relative instead.

#2. Relations by marriage

Even though the step-children may have been raised by the deceased for their entire lives, they have no claim on the estate. Unless there is a formal adoption or they are maintained by the dearly departed the step-children will receive nothing. 

This also includes parents-in-law, brothers-in-law, and sisters-in-law. While the spouses are legally bound to each other, their respective families are not. 

#3. Close Friends

While a close friend may have helped the deceased in their last days more than their own family, they cannot inherit the estate unless the dearly departed leaves a will giving them a gift

Having a Will is Important

Passing on without a will outlining who you want to inherit leaves a very complicated process for the loved ones  to follow. The best thing you can do for your loved ones to give them peace of mind after you are gone is to outline your final wishes in writing formally while you are still of sound mind and body, and long before you ever need to.
Elizabeth Middleton Solicitors are at the ready with an expert legal staff to assist you with your will needs.  Contact us for more information about assistance with your will, as well as your other legal needs for end of life.

As you age, the feeling of worry creeps in about what will happen to your home and belongings when you die. It is a fact of life human beings pass away, but the possessions accumulated throughout one’s life stay behind for our loved ones to cherish or pass on to others who might appreciate them more. 

The smart thing to do to prepare your relatives for the end of your life is to have a will or trust in place and be sure your wishes will be met. In the event of your passing, a document laying out precisely what you want and what happens to your belongings will make your loved ones’ life less stressful and allow them to focus less on logistics. A will can make life less complicated, and your relatives can grieve without worrying about what to do with your assets left behind. 

However, not everyone may be happy with what you outline in your will or want the will discovered if they are left out of the inheritance for any reason. This makes it challenging when preparing your final wishes, and you need to decide what to do with your will to protect your last decisions.

Your Rights to Privacy and Your Will

Your will is your private, personal wish for what happens to you and your possessions after you pass away. However, people do have these two questions when it comes to keeping their final wishes private.

Question #1. Do I have to tell my family members what is in my will?

The age-old tale of the children being unhappy with the will their parents created occurs more often than you might think. A demand to change the will can come up, and a fight will more than likely ensue. 

This situation can make everyone in the family unhappy and cause rifts that might never heal. The best thing to do in this dynamic is to inform your relatives you have a will and not disclose the contents of the document.

You have no legal obligation to show your will to anyone. The family members may bluster and try to bully you into showing themyou your will’s contents but it is important to stand your ground. You do not have to disclose the contents of the will to anyone.

Question #2. Is my will a public document?

When you create your will, it is not a public document. The legal form is your private wish on paper in the case of your passing. Its contents aren’t known outside of those who you choose to share it with, the solicitor who helped you create it, and yourself. 

The document only becomes public after probate is granted. After your passing, the estate’s executor is the only one allowed to see the will’s contents. Once probate is granted, your will then becomes a public document.  

Places to Keep Your Will

Once you have the legal document in hand, it is often difficult to figure out where you want to keep it. There are a few places you can keep your will, and it is up to you to decide which one is best in your situation.

#1. Your own home

If you have a personal safe at home, it is an excellent option to store your will in your own home. There are no fees, and the document is at your fingertips to look over whenever you feel the need. You can easily modify and adjust your will as needed when your circumstances change.

However, there are some risks involved. If you store it in your home you run the risk of someone reading it without your knowledge, damage to the document, or the will being destroyed if you have a flood or fire in your home. You will also need to ensure that someone you trust will have access to your will after you pass away.

#2. With The Solicitor

After writing your will, you can choose to store it with your solicitor. Solicitors are regulated, giving you recourse if the will is lost or damaged. Storing with a solicitor also ensures that your will can be made available when it’s needed.

Be aware that an additional fee may be needed if you have to store it with the solicitor who didn’t write the document. 

It’s No Secret That You Need a Will

To ensure your estate is taken care of promptly, a will or trust is the best course of action. Your loved ones will be able to handle your last wishes with ease when they are outlined clearly. 
Elizabeth Middleton Solicitors are at the ready with an excellent staff to assist you with your will needs.  Contact us for more information about assistance with your will, as well as your other legal needs for probate, lasting powers of attorney, equity release, and settlement agreements.

It can be difficult to even think about planning for a circumstance in which you lose the mental capacity to make your own decisions. However, with dementia and other neurodegenerative condition rates on the rise in the UK, it helps to be prepared and knowledgeable about what your options are in the event that one day you need to be. 

Appointing  attorneys under Lasting Powers of Attorney give you an option to choose people you trust to manage your affairs if you lose capacity. That opportunity is lost to you if you lose mental capacity. The only alternative is for your loved ones to apply for  Deputyship application at the Court of Protection so the latter process is very expensive, time consuming and has yearly responsibilities to the Court of Protection. 

 The two processes are different but the option you have depends on whether you have capacity or not. 

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint someone to assist you in making decisions, or make decisions for you (as your “attorney”), in case you lose the mental capacity to do so. The appointed person is known as the attorney, and you can choose an individual or multiple people to act as your attorneys. 

There are two types of LPAs. One for  Health and Welfare, the other for Property and Financial Affairs.  It is always best to have both.. A Health and Welfare LPA will give the attorney the power to make decisions about  your health, for example choosing a care home, consenting to having an operation if you are unable to do so, implementing your Do Not Resuscitate instructions or your Living Will.   A Property and Financial affairs LPA will give the attorney the power to make financial decisions, for example paying bills, managing bank accounts, selling a home, and other financial issues. 

To create an LPA, you need to choose your attorney or attorneys, fill out the correct forms, and register your LPA with the Office of the Public Guardian. 

What is a Deputyship Order?

A Deputyship Order is a legal document appointing a person to act as a “Deputy” for someone who has already lost the mental capacity to make their own decisions. In this case, it is not possible to appoint an LPA. Instead, a Court of Protection will appoint a Deputy to act on behalf of the incapacitated person.

To create a Deputyship, a person must apply to the Court of Protection and have their application reviewed by a judge. Like an LPA, a deputyship can be for health and welfare or for property and financial affairs.

What are the differences? 

Mental Capacity

Mental capacity is the ability to make your own decisions. To set up an LPA, a person must have mental capacity at the time they create the document. In the case of a Deputyship, the Deputy is appointed after the person has lost their mental capacity. 

Cost and Timing

Creating an LPA generally takes between eight and 12 weeks and costs £82 to register each document with the Office of the Public Guardian if your income is over £12,000pa. In the case that you lose your mental capacity, your attorney can start acting on your behalf immediately. 

If you lose mental capacity without an LPA in place, a Deputyship application can take between six and twelve months to set up. In addition, it costs at minimum £365 per application, and the fees often go up from there. Because it takes so long to set up a deputyship, this can impact your ability to quickly pay bills or set up care. 

Choice and Control 

When you set up an LPA, you have the ability to stipulate who will be in charge of your affairs and what powers they have. You can choose anyone over the age of 18 to be your attorney, and you can decide whether your attorney or attorneys can act independently or together. This helps ensure you retain input into how your affairs are handled.

In the case of a Deputyship, the family normally apply to the court to be your Deputy but if there is no one who can apply then the Court will appoint a professional Deputy.  

Supervision

A Court-appointed Deputy is under more supervision than an attorney in order to help protect the incapacitated person from financial abuse. The Deputy must make an annual report to the Office of the Public Guardian that details all expenditures made on behalf of the incapacitated person. In addition, the Deputy must take out an annual security bond, which acts as insurance for the incapictated person in the case the Deputy mismanages their funds. 

An attorney and an LPA is under much less strict supervision. Unlike a Deputy, they are not obligated to report to the Office of the Public Guardian. While the Court can step-in if there is evidence an attorney is acting improperly, they are not monitored to the same degree as a deputy. 

Be Prepared

We know that thinking about the future can be stressful but the situation is worse if there are no attorneys appointed and it’s more expensive both in terms of time and money. We believe that everyone should be treated with respect, kindness and receive a personal service that meets their needs in a relaxed, un-rushed environment. 

Elizabeth Middleton Solicitors is here to help you prepare for the future and ensure your wishes are followed, which is why our expert legal team specialises in Lasting Power of Attorney, Wills, Probate and Equity Release. 

Don’t wait for life to happen – Get in touch today to learn more about our LPA services and gain the peace of mind that your future is taken care of.

The death toll is rising across the country, and with it, thousands of people are inheriting their loved one’s estate. While trying to grieve, the estate’s executors have to deal with the legal side of their relative’s untimely passing. 

It is difficult for those responsible for carrying out their family member’s last wishes. The stress the family goes through is impacted depends on whether their loved one left a Will or not. Building societies, law firms, and banks are all needed to assess the value of properties and complete documents to distribute the deceased’s estate accordingly. 

COVID-19 is affecting everyone in various ways, from health issues to legal ones. You need to have all the information possible when executing the estate of your loved one, so let’s address some of the ways in which the lockdown has affected probate law in the UK.

What is Probate?

The word “probate” is thrown around liberally when the subject of inheritance comes about after someone dies. Probate is the process of administering a loved one’s estate. If a person has left a Will it will be sent to the Probate Registry before their assets can be given to their loved ones.  The process is easier if there is a Will because we know what the person wanted. 

If the person didn’t leave a Will when they passed,  the intestacy laws will apply.  Intestacy is the law that determines who inherits and who is entitled to the estate. Intestacy laws  will also determine who will administer the estate if there isn’t a will. The administrator is chosen from the list prescribed by law.  

By obtaining the letters of administration, the first step is complete, and the administrator can start the legal process of administering of finding out what assets and liabilities the dearly departed had before distributing the estate to the surviving loved ones. 

How Has the Pandemic Affected Probate Law in England and Wales??

Managing the estate of your loved one is hard.  COVID-19 has made it more difficult. . The restrictions  to help keep everyone safe have made it even more challenging. Registering the death, valuing their assets, applying for the grant of probate or letters of administration is taking much longer. Before the pandemic it used to take ten days; it now takes between 6 months and a year.

#1. Registering a Death

When a loved one passes, it is vital to register the death within five days of the deceased passing. In England and Wales, most Registry Offices are offering telephone meetings to register a death. 

You can locate your local office by using the Government’s Website to find out where you can call to set up an appointment. While the appointment is free, you will have to pay a fee for each death certificate. The document will then be sent to you in the post.

#2. Banking Institutions

The deceased bank or other financial institution may not be open or operating at full capacity at this current time. Therefore it will take longer for them to provide us with the finances at the date of death. You will need to contact their financial institution to see if you can come in to manage your loved one’s account or if they will be able to do it over the phone.  

#3. Valuation of Property

Physical valuations are challenging to obtain with real estate agents either being closed or overwhelmed with the requests due to the staggering amount of deaths from COVID-19. Instead, an estimation can be used until a physical one can be completed. Physical valuations are vital if an estate is liable to pay an inheritance tax or near the threshold.

#4. Obtaining the Grant of Probate

When you obtain the death certificate you will know whether you need to engage a probate solicitor to ensure the probate is done correctly. You will require one if the estate has property or if the assets are in the deceased’s sole name. Most law offices have modified hours or do video or in-person  meetings to go over the information collected with you. 

If done by video, the probate solicitor will gather the information, prepare the application, and send the paperwork through the post for you to approve.  Once you are happy with the application, you can submit it to the probate registry. The grant of probate will be sent back to you through the post once it has been approved. 

Choose the Right Solicitor for Your Probate Needs

Elizabeth Middleton Solicitors personalises its probate services according to every particular circumstance, and our lawyers are experts in managing and walking you through every step of the process.

Because we know this is a challenging time and a difficult process, we’ll work at a pace comfortable for you. Because we have spent more than a decade specialising in just such affairs, we work tirelessly to make this process as easy as possible on you while being efficient and effective in closing the estate. And because we know that circumstances can change rapidly, we provide the flexibility you need to handle all legal proceedings surrounding the passing of a loved one.

Let us help you manage your responsibility as executor and get you and your loved ones the closure they need. To learn more or to schedule a consultation, contact us and let us help you move forward and ensure that your loved one’s estate is wound up properly.

Video witnessing to be made legal — How to Make Your Will Virtually

During these uncertain times, it’s more important than ever to make sure your family will be protected under any circumstances. Writing a will is crucial to your overall estate planning and post-mortem procedures. However, the law of England and Wales has required two in-person witnesses for will creation. Now, in light of COVID-19, video witnessing is permissible. Here’s what you need to know.

The new provision is retroactive

The change in law has been backdated to 31 January 2020, and the new allowance will continue until 31 January 2022, if not later. So, if you have already used videoconferencing for your witnesses during this period, you can rest assured that your will is considered legally binding and valid. However, the government does request that wills be witnessed in person whenever possible.

Electronic signatures are still not allowed

Although the witnessing itself can be virtual, the witnesses’ signatures must be physical. Those creating their will may need to use couriers or mail services to ensure that all witnesses legally sign the document. Note that the will’s creator needs to see the witnesses make their signatures, so in some cases, up to three separate video conferencing sessions will need to happen. Also, the will document ideally is completed by all parties within 24 hours, which may present challenges if the witnesses are far apart.

The videoconference must be high-quality

If poor connectivity or other issues prevent any party from hearing or seeing the will’s creation, the virtual witnessing may not be permitted. All parties must be able to clearly hear, see, and comprehend each other’s statements and actions during the session.

The video feed must show the entirety of the act

Each witness must be in full view of the will’s creator, so that their face, their signing hand, and the will itself are all visible. Ideally, the entire space around them is also shown so there is no suggestion of undue influence or secret attendees during this private event.

The videoconferencing must be live

While the signing itself cannot be pre-recorded (i.e., a witness records themselves signing the will, then sends it to the will-maker), the live virtual witnessing can and should be recorded. The easiest way to do this is to use a tool such as Skype or Zoom, then begin recording the videoconference once it starts. Should the will be challenged, it will be crucial to have the recording.

The new law applies to codicils as well

Should you need to modify an existing will, you can use video witnessing to make the required adjustments and supervise witnesses’ signatures. As with will creation, all signatures and statements should be clearly covered by the video feed and preserved in a recording.

Witnesses should still sign together when possible

While both witnesses and the will-maker can all legally sign separately via videoconferencing, the government still recommends that the witnesses sign in each other’s physical presence. If this is not possible, a three-way video conference must be created in which all parties can clearly see and hear each other make their signatures.

The will should state that the witnessing will occur virtually

If a will is to be witnessed via video conference, the document must state as such. Ensure that the will contains a bespoke attestation clause describing how the witnessing shall occur.

Socially distanced witnessing is also allowed

If videoconferencing is not viable or if there are concerns about the timing of getting all signatures, parties can also witness with social distancing as long as line-of-sight is maintained. For example, the will-maker and their witnesses may supervise each other’s signatures through a window, corridor, or from a safe distance, as long as they can clearly see that the will is being signed.

Conclusion

The new legislation is intended as a temporary measure to facilitate will creation during the COVID era. Physical witnessing is still recommended, and physical signatures are absolutely required. However, virtual witnessing is a viable alternative and can be immensely useful for high-risk individuals who need to create or update their will. They and their witnesses should aim to replicate an in-person will-signing event whenever possible, maintaining full visibility and documentation of all signatures.

For assistance in preparing your will and ensuring that all witnessing and signatures are conducted lawfully, reach out to Elizabeth Middleton Solicitors. We are pleased to offer virtual, COVID-safe options to ensure that your estate is properly planned and your wishes made known. Contact us today to learn how our services can help you and your family prepare for the future and protect your estate.

Equity release is a way of accessing part of the money tied up in the value of your home without you having to move house. You can receive the money you release as a lump sum, in several smaller amounts, or as a combination of both.

There are two primary types of equity release: Lifetime mortgages and home reversion plans. To be eligible for either of these options, you will need to meet certain qualifications including:

• Age: For a lifetime mortgage, you must be at least 55 years old. For a home reversion, you need to be at least 60 years old.
• Your home: You must own your home and it must be your main residence. There are other criteria that tend to vary between equity release providers, but in general, the property must be a certain value and must be in reasonable condition.
• Your family: If you live with any dependants they may need to sign a waiver confirming they understand they don’t have a right to continue living in the property if you die or move into permanent residential care.

Let’s examine how lifetime mortgages and home reversions work and how you can benefit from each.

Lifetime Mortgages

Lifetime mortgages are the most common type of equity release. It’s a type of loan secured against your home that allows you to release funds from the property, tax-free. With a lifetime mortgage, you continue to live in and own your home and are responsible for its maintenance and insurance.

The maximum amount of the loan depends on your age, the value of your home, and in some cases, your health. You can normally borrow up to 60% of the value of your property. The percentage typically increases based on your age when you take out the lifetime mortgage

Usually, the mortgage does not need to be repaid until the last borrower dies or moves into permanent residential care. Interest is added to the loan but is usually rolled up until the loan is repaid. Interest rates must be fixed or, if they are variable, there must be an upper limit that is fixed for the life of the loan.

Advantages of Lifetime Mortgages

Here are some of the biggest benefits of choosing to go with a lifetime mortgage:

• You can get a tax-free lump sum and/or smaller, regular payments to supplement your income in retirement.
• You are still able to live in your home until you die or move into permanent residential care.
• You can continue to benefit from any rise in the value of your property.
• You are still able to change homes and the product can be transferred to a new home. Be aware that you can only do this if the new property acts as acceptable security to the mortgage provider.
• For most lifetime mortgages, there is no need for regular payments.
• The product has a “no negative equity guarantee” – meaning that when your property is sold, even if the amount left is not enough to repay the outstanding loan to your provider, neither you nor your estate will be liable to pay any more.

Advice on Equity Release

Elizabeth Middleton Solicitors offers the legal expertise you need to plan for the future and protect your assets. We understand that everyone’s circumstances are different and our friendly and approachable legal team works to develop wills, lasting powers of attorney, and tax and estate planning suited to your unique needs.

Contact us today to learn how our services can help you and your family prepare for the future and protect your estate.

Can I Still Get Equity Release During the Lockdown?

The simple answer to this is yes. You are still able to do equity release during the lockdown, but some things have changed and there are important factors you will need to consider. 

Normally, equity release customers must receive legal services, but that is not possible given the current situation. To overcome this, the Equity Release Council has published a temporary modification to the rules after a detailed consultation with its members and the industry. 

It is important to maintain product safeguards while also protecting customers’ health. As such, a new process has been designed with input from expert legal advisers with experience in equity release across the UK. The Council’s standards board, along with independent consumers and regulatory experts also supported this process.

Once you decide that an Equity Release mortgage is the right kind of mortgage for you, your Financial Advisor will ask you to nominate a solicitor to act on your behalf.

There are a number of solicitors on the Equity Release Council, including Elizabeth Middleton Solicitors. Your Financial Advisor will ask you to give your chosen solicitor a call to instruct them.  You will be asked to give your solicitor’s name to your Equity Release Mortgage Provider (for example, Legal and General, Nationwide or More2life)

The Process

After the Equity Release Mortgage Provider receives your solicitor’s information and is selected as your independent Legal Advisor, they will have their own team send over the documents which your solicitor will use to advise you.  They include:

1. The Mortgage Deed:  Your solicitor will advise you about your obligations under the Mortgage Deed before you sign. Your solicitor will serve as the witness.

2. Solicitor’s Certificate:  Equity Release Mortgage Provider requires your solicitor to certify that they have seen you either in person or remotely.  Your solicitor is able to give you legal advice in person, by telephone, video conferencing or post.  It is important that you let your solicitor know which method you prefer as soon as possible so that they can make the necessary arrangements.

3. Acceptance of Offer: The Equity Release Mortgage Provider will require you to sign an offer acceptance form to confirm that you agree to the offer that they made.

4. Identification & Verification form:  Your solicitor will be required to verify your identification.  Please bring your passport or driving licence together with a utility bill that is less than three months old.  They will certify them as proof that they have seen you either in person or by video conference for an ID check.

5. Certificate of Comprehensive Building Insurance: Each Equity Release Mortgage Provider’s requirements are different.  Nationwide requires their interest to be noted on your insurance policy before your solicitor sends all the above documentation back to the Mortgage Provider.  Legal and General, on the other hand, requires you to sign a form confirming that you have adequate building insurance.

6. Tenancy in Common: Let your solicitor know if you own your property as tenants in common.  If you do not know, the Office copy entries that your solicitor obtains from the Land Registry will provide them with that information.

7. Who will act for the Equity Release Mortgage Provider?

The Equity Release Mortgage Provider will choose their own Legal Advisor who will not be able to act for you as well.  The reason they cannot act for you is that a conflict of interest would arise.  Therefore, you as the borrower need your own Legal Advisor and they, as the Lender, require their own.

8. Bank details: Your solicitor will need your bank details which they will take from you when I see you. For your security, never send your bank details by email.

9. How long will the process take? It depends on how you own your property and your circumstances.  If you are a sole owner and there are no restrictions on your title then the process is straight forward.  It can take from about one week to two months to complete.  The same will apply if you are married and have not divorced.  It may take longer if you have had a separation because the Solicitors acting for the Equity Release Mortgage Provider may require a certificate to show that all the parties to the divorce received independent legal advice at the time.  That may take a long time to resolve especially if both parties have moved on with their lives.
   
   It will also take longer for the matter to complete if the property is Leasehold or if the Lease needs to be extended. 
   
10. Fees: Rates may vary, depending on the solicitor you choose.  Some Equity Release Mortgage Providers such as Nationwide will contribute towards your legal fees. If they do not offer this facility, you are responsible for legal fees to your solicitor. At Elizabeth Middleton Solicitors, our current fees are £800 plus VAT for uncomplicated transactions.  Transactions which are complicated, for example, those which include trusts, divorced clients, Leases, or Deed of Variation to extend the Leases, our fees are £1000 to £1200 plus VAT. This price is subject to change in the future.

Takeaways

When considering a home equity release, it is important that you balance your short-term and long-term financial needs. Home equity release lasts a lifetime, so you do not want to rush into a long-term decision just to service a temporary need. Expert legal advice will allow you to avoid potential issues, as a quality conveyancing solicitor can help you determine if equity release is right for you here and now.

This is where Elizabeth Middleton Solicitors can help. Our friendly team prides itself on answering all the questions you might have about equity release and helping you make the right decision for your future. We believe that everyone should be treated with respect, kindness, and receive personal service that meets their needs. 

Contact us today.

Making gifts to your family and friends while you’re alive is a great way to reduce the value of your estate and lower the impact of inheritance tax. Estate and tax planning is a complex subject. It’s important to understand the options available to you and the best way to do this is through sound professional advice.

In this post, we’ll go through what gifts are subject to inheritance tax and how you can make lifetime gifts that are tax-free.

Giving to Your Children and Other Family Members

To ensure that what you give your children or other family members is tax-free, it’s essential that you plan when to make the gift.

As long as you live more than seven years from when you make the gift, your children or family won’t have to pay inheritance tax on your gift when you pass on. Be aware that any income made from this gift would still be subject to capital gains tax. However, if you don’t live more than seven years after making the gift, your family members may have to pay inheritance tax.

The gift is considered a potentially exempt transfer when it is first made. If you die within seven years, it becomes a chargeable transfer and is subject to inheritance tax. We’ll discuss potentially exempt transfers in more detail later in this post.

Note that married couples and civil partners are allowed to pass their estate to their spouse tax-free when they die, meaning the surviving spouse can inherit the entire estate without having to pay Inheritance Tax.

Gifting to Charity

Any cash or physical asset you leave to a qualifying charitable organization either in your will or during your lifetime is exempt from inheritance tax. This is a great option if you’re looking to give back while still maximizing the value of your estate.

Gifting to charity can also reduce your inheritance tax rate from 40% down to 36%. This lower rate only applies if the gift to charity accounts for 10% of the net estate at the time of death.

Annual Gift Allowance

While you’re alive, you have a £3,000 ‘gift allowance’ each year known as an annual exemption. This means you can give away assets or cash up to a total value of £3,000 each tax year without it being added to the value of your estate for inheritance tax purposes.

You can carry over any unused portion of the exemption to the following tax year but it can’t be carried over to a second year.

Tax-Free Gifts

There are a variety of gifts you can make that will not be subject to inheritance tax. This includes:

Wedding Gifts

Wedding gifts are free from inheritance tax provided they meet the following requirements:

• Gifts to children are worth £5,000 or less
• Gifts to grandchildren or great-grandchildren are worth £2,500 or less
• Gifts given to another relative or friend are worth  £1,000 or less

Gifts That are Worth Less Than £250

You can give as many tax-free gifts up to £250 to as many people as you want. However, you cannot give tax-free gifts to anyone who has already received a gift of your whole £3,000 annual exemption.

Gifts to Help With Living Costs

Gifts used to help pay the living costs of an ex-spouse, an elderly dependent, a child under 18, or a child in full-time education might be exempt from inheritance tax.

Gifts From Your Surplus Income

If you earn a high enough income to easily maintain your standard of living, you can make gifts from your surplus disposable income. For example, you can pay into your child’s savings account or pay a life insurance premium for your spouse. These gifts must be made regularly, so you need to be able to commit to keeping up with the installments. It’s important to keep detailed records of these gifts if you plan to use this exemption as the rules are complex.

Potentially Exempt Transfers

A potentially exempt transfer (PET) enables you to make gifts of unlimited value that will become exempt from inheritance tax if you survive seven years from the time of the gift.

If you don’t live for seven years after the gift, the PET becomes a chargeable consideration and is added to the value of your estate for Inheritance Tax purposes. If the value of the estate (including the gift) is over the Inheritance Tax threshold of £325,000, then tax may be due.

To be “Potentially Exempt”, lifetime gifts must meet certain conditions and are subject to certain exceptions. The gift must be made from an individual to another individual or to a specified trust. This means that the gift cannot be made to or from a company.

Gifts that you maintain an interest in don’t qualify as a PET no matter when they are given. For example, if you continue to live for free in the house you gave your child more than 10 years ago, the house would still be considered as part of your estate for inheritance tax purposes.

The 7 Year Rule

The 7 Year Rule helps determine the rate at which inheritance tax is charged. Gifts given within three years of your death are taxed at 40%.

Gifts made between three to seven years before your death are taxed on a sliding scale known as taper relief. Below are the different tax rates, based on the years between the gift and death:

Years between gift and death	Tax paid
Less than 3	40%
3 to 4	32%
4 to 5	24%
5 to 6	16%
6 to 7	8%
7 or more	0%

Be aware that taper relief doesn’t reduce the value of the gift, it only reduces the tax payable.

Professional Tax and Estate Planning

Wills and trusts are an important part of planning your estate and minimizing inheritance tax. This area of law is complex and it’s always best to seek professional advice to make sure you are on the right track.

Elizabeth Middleton Solicitors has the experience to ensure that your estate is as tax-efficient as possible. Contact us today to learn how we can help you and your family plan for the future with expert estate planning, will writing, lasting power of attorney, and conveyancing services.

With care costs increasing dramatically, people continue to lose more of their savings, investments, and property to the cost of care than ever before. There are ways you can use your will to protect your estate from care home fees, but this is never something you should attempt to do without expert legal services from a professional solicitor.

In this post, you’ll learn how care home fees can affect you and your family and what you can do today to protect your assets for the future.

Rising Care Home Fees

Research from Prestige Nursing and Care has shown that the average annual cost to stay in a residential care home has increased by £1,536 (5.6%) to £30,926 in the past year.

The average rise is more than 10 times the £156 average increase in pensioners’ income over the same duration. On average, pensioners earn  £14,456 a year which would cover less than half of a year’s worth of care.

This is causing concern for many people about the possible costs involved with paying for any necessary care fees in the future and the impact this could have on reducing the value of inheritance received by children after both parents have died.

Consider the following example:

Mr. and Mrs. Jones were in their 60s and had two adult children. Their joint estate was worth roughly £250,000, primarily made up of their home worth £240,000 and  £10,000 of savings. They wanted to plan for the future while keeping everything simple and straightforward, so they put in place standard mirror wills. These wills leave everything to the other when the first dies and then to their children in equal shares after the surviving spouse dies.

A few years later, Mr. Jones passed away and his estate passed to Mrs. Jones in accordance with his will. Mrs. Jones continued to live independently over the next few years. Unfortunately, Mrs. Jones suffered a stroke which meant she required residential care. She was financially assessed by the Local Authority who determined that the value of her assets was  £250,000. Because this exceeded the maximum threshold, she would have to pay the cost of her care in full.

The residential home fees added up to £30,000 a year and her matrimonial home was sold to pay the costs. She continued to live in the home for five years until she passed away. During this time, she had incurred £150,000 in care costs (5 years x £30,000) which reduced the value of her estate to £100,000 when it passed to her children.

This is a common scenario as couples who aren’t properly prepared don’t realize the impact care costs can have before it’s too late

Protecting Your Assets

If you need to move into a care home in the future and you have more than £23,250 in savings or assets, including the value of your home, you will usually have to pay for the full cost of your care.

If your savings or assets are valued between £14,250 and £23,250, you will usually have to pay a contribution to your care, with the Local Authority paying the remainder. When your assets are below £14,250, the Local Authority will take over paying the fees for your care.

As the cost of care continues to increase, people are seeing their hard-earned assets dry up at an alarming rate. With the average house worth £213,927, if just one spouse needs care, you could lose nearly all your assets to care costs in roughly six years. This would mean you have nothing to leave to your children or grandchildren.

Care Fee Trust Will

Fortunately, there are steps you can take to prevent this from happening. Instead of leaving all your assets to your partner in a mirror will, you can make a Care Fee Trust Will which allows you to leave your assets to your partner for the duration of their life, and then to your children or whoever you choose.

A Care Fee Trust Will requires that the family home is held as tenants in common rather than as joint tenants. This means that each spouse owns 50% of the property rather than owning the home together in a single indivisible share.

With a Care Fee Trust Will, your partner can use the share of the home during their lifetime. Should your partner ever need care, the Local Authority cannot take your share to pay for care fees since your partner does not technically own it. This can help preserve the value of your estate before it is passed to your children.

Wrapping Up

Elizabeth Middleton Solicitors offers the legal expertise you need to plan for the future and protect your assets. We understand that everyone’s circumstances are different and our friendly and approachable legal team works to develop wills, lasting powers of attorney, and tax and estate planning suited to your unique needs.

Contact us today to learn how our services can help you and your family prepare for the future and protect your estate.