Wills, Trusts and Executries
Wills, Powers of Attorney and Guardianships, Executries, Trusts,
Inheritance Tax and Capital Gains Tax mitigation
Everyone has an estate. We all own something be it a bank account, house, car, jewellery, painting and even pets. Many put off dealing with their estate as they feel they are too young, are not wealthy enough or are just too busy to find the time. In fact, most believe that estate planning is only needed by the wealthy. This is not, however, the case. No matter if your estate is large or small, by taking time now to properly plan what is to ultimately happen with it, many problems can be avoided in the future.
No one likes to contemplate their own demise, nor address the fact that, they too, will grow old. We at Next Law recognise that this is not a popular subject, but cannot emphasis enough the importance of proper planning. Life can be complicated and take unexpected turns. It is never too early to put plans in place that will ensure your assets are protected for those who matter to you most. Our experienced team is here to assist you with that planning, whatever stage you may be at.
At Next Law we can advise you on all aspect of estate planning including:
- Powers of Attorney and Guardianships
- Inheritance Tax and Capital Gains Tax mitigation
Once you take that first step we know that you will be glad that you did."
Nearly everyone reading this will be familiar with the concept of a Will. It is a legal document through which an individual can (1) direct what is to happen with their assets after their death; and (2) appoint those they trust, to ensure that their wishes are followed. In circumstances where an individual does not have a Will, the rules of the Succession (Scotland) Act (or those of the country where that individual lived, if not Scotland) determine what happens to their estate. Generally, the assets will end up where an individual had intended, but this is not always the case. Also, certain steps require to be taken, because there is no Will, which lead to delay and unnecessary expense.
At Next Law we provide clear and practicable advice to ensure that making your Will is a straightforward and painless process. You should consider making a Will from as early as when you start your first job and review it at least every 10 years, and after any significant change in your life. For example, buying your first home, marriage/entering into a long term relationship, or having children.
A properly drafted Will makes sure that any exposure to tax is mitigated as much as possible, ensures that your assets go where you intend and also can protect any loved ones who may be vulnerable. The cost of making a Will depends on how complex it needs to be, but it is likely to be less than you think. Everyone’s circumstances are different. Next Law’s experienced team are here to provide you with the best advice to ensure that your Will works for you.
Powers of Attorney and Guardianships
It is commonly believed that a spouse, sibling, parent or long term partner can deal with financial matters of their loved one and be involved in decisions about their welfare when that person is not capable to do so themselves. This, however, is not the case. For example, organisations will only deal with the account holder even when you are perhaps calling to try to pay a bill, or query if there is a sum outstanding on an account. Where there is no Power of Attorney or Guardianship, social services has the legal authority to determine whether a person who lacks capacity requires to be placed into a care home, and in which care home that person is placed. That person’s spouse, siblings, or children, would have no say, unless there was a Power of Attorney or Guardianship in place giving them the power to make these decisions on that individuals behalf.
Power of Attorney
Put simply, a Power of Attorney is a legal document through which an individual can appoint people that they trust to deal with their financial affairs and take decisions on their welfare, when they are incapable (for whatever reason) to do so themselves. Incapacity can be temporary, or permanent, and is not restricted to the elderly. A person can lose capacity, for example, if they have been knocked unconscious in a traffic accident.
In the event that a person loses capacity with no Power of Attorney and intervention with their finances, or decisions in relation to their welfare, are needed then an application requires to be made to the Court to appoint someone to deal with these matters. This is called a Guardianship Order and, in rare cases, can take years to be put in place. During that period access to that individual’s financial affairs would be severely restricted and in most cases not possible at all. No decisions in relation to that individual’s welfare could be made other than by those who have been given authority by legislation.
Being in a position where it is necessary to have someone else deal with your financial affairs and welfare is a daunting prospect. It may never happen. But if it does, having a Power of Attorney will make this difficult time a little easier for your loved ones, and ultimately you. Our team at Next Law would be pleased to provide you with all the advice you need and guide you through the process of putting a Power of Attorney in place.
A Guardianship is necessary when an adult has lost capacity and has not, and is no longer able to, put a Power of Attorney in place. In such circumstances someone, usually one of the individual's family members or friends, requires to apply to the Court to be that adult’s Guardian. The Court’s need to be satisfied that the adult has lost capacity and that those applying are the most suitable to be appointed as the adult’s Guardian, or Guardians. A number of medical reports and a report by a Mental Health Officer, appointed by the Local Authority, are necessary and must be submitted to the Court along with the potential Guardian(s) application seeking specific powers to deal with the affairs of the adult. If satisfied that all is in order the Court will then grant a Guardianship Order appointing those applicant’s as the adults Guardian(s).
The process may sound straightforward, but, unfortunately it is not. The number of Guardianship Orders applied for grows at an astounding rate each year. It can take quite some time to have all the correct medical practitioners and the Mental Health Officer in place to carry out the reports, sometimes up to a year. Once in place the Guardian is heavily monitored and scrutinised by the Office of the Public Guardian for Scotland (OPG). This involves, in the case where financial powers are granted, entering into a Financial Management Plan, annual submission of accounts and also the OPG require to approve any action taken with the adult’s finances, for example, investing funds or withdrawing funds to meet a cost. Being a Guardian can be quite an onerous task.
At Next Law we understand that applying for a Guardianship in respect of a loved one or friend is not an easy decision. The prospect of dealing with the Courts, Local Authority and various medical practitioners can be nerve-racking. We are here to ensure that the application for a Guardianship is made as easy and hassle free as possible. Next Law will deal with all of the administration involved in appointing the correct people, in the correct time frame and draft the application to the Court seeking the correct powers for the adults’ circumstances. We will ensure that you understand all that is involved and keep you updated on progress. Once the Guardianship is in place we will still be here to provide any advice you need, and can help you find the right professionals you may require to satisfy the requirements of the Office of the Public Guardian.
The death of a loved one or friend is harrowing. In the aftermath of the loss there are a number of matters that will need to be attended to and it can be difficult to know where to start and ascertain what needs to be done. We understand that the last thing anyone wants to think about is the legal process and formalities that are necessary to attend to the late individual’s affairs. At Next Law we are on hand to help you throughout the process. We endeavour to relieve you of the stress and anxiety often caused by the sheer amount of paperwork involved in dealing with a deceased’s estate.
The process of carrying out the administration of an estate is called “winding up” the estate. How complicated the process is depends on the size of the estate, what assets were held and if there was a Will. The process usually involves gathering in all of the assets, paying any debts due and then distributing the estate to the beneficiaries. An Application for Confirmation to the Court is usually required and, in some cases, tax documents will need to be prepared and submitted to H M Revenue and Customs in relation to any Inheritance Tax due.
At Next Law we have many years of experience dealing with winding up estates of all sizes. We are here to help with all aspects of the process and can deal with all that is needed - from arranging the funeral, through to sharing out the assets to the beneficiaries. Next Law are dedicated to making this process as easy as possible. We will provide you with the expert support and advice that you need and deal with the estate promptly and efficiently to minimise the strain at a time we know can be incredibly difficult.