Wills, Trust, Tax & Probate

Setting out a Will, arranging a Trust, organising tax affairs and administering probate can be challenging for many; the first hurdle is often a combination of jargon and rules. The good news is that we are here to explain and advise, using plain English.

“We have a team of experts who are brilliant at de-mystifying complex areas and providing no nonsense, clear and practical help within Wills, Trust and Probate. We know how easy it is to put decisions off for another day, but we also know that it’s a comfort to get important plans in place; it’s not just good practice – it’s peace of mind too.”
David Cornelius, Partner

Help with Wills, Trust and Probate

At Nash & Co we help you arrange your affairs, from the preparation of a simple Will, understanding or administering a Trust along with advice on re-structuring your assets to mitigate tax to assist your family when someone has died.

How do you help?

We combine our specialist knowledge with the traditional standards expected of a Solicitor. We take time to get to know our clients so that we can provide advice that fits their personal circumstances and covers their needs and concerns in a helpful and tax efficient manner.

What should I do next?

We pride ourselves on the fact that most of our referrals are from existing clients and people who know us. So please get in touch with David Cornelius or one of his team and we will be happy to help. David’s email address is [email protected] or you can call him on 01752 827076.

Remember, we aim to cut through the complexity to provide clear and straightforward advice – and we are always clear on our costs too.

Wills (Click here for FAQs)
What is a Will?

It is a document that deals with your estate (everything you own) after you have died.  You can change your Will at any time during your life if you wish, as long as you retain the necessary mental capacity to do so.

What is the test of capacity?

You must know you are making a Will, roughly know what you own, who might be expecting to inherit from you and give them consideration.  You need to not have “a poisoning of the mind or affection”, which means that you need to understand why you are leaving something to a person, or not, if that is the case and not be influenced to make the decision.

What does a Will do, other than leave my money?

You can leave everything you own in your Will, including your savings and your property, as well as things like your personal possessions.  You can also include a funeral clause and if you have children under the age of 18, you can include a guardianship clause.  Importantly you can choose your Executors, who are the people who will sort out the paperwork in the administration of your estate.

Can I have a joint Will with my partner?

There is no such thing as a “joint Will”, but there can be Wills in mirror terms, which are the identical to each other, other than the change of the change of names.

What happens to our house, which is in joint names?

Mostly houses are held as joint tenants, which means that they pass by survivorship and not via the Will, so unless you sever the joint tenancy, it is not possible to leave your Will to anyone, as it will automatically pass on your death to the other joint owner.  This also happens to joint bank accounts, that they pass by survivorship.

I want my children to inherit my house and not have to pay care fees, can I do something in my Will?

If you sever the joint tenancy of the property, assuming it is jointly owned, then you can grant your surviving spouse / partner a life interest and leave the remainder to your children.  This will mean that your surviving spouse can live in the property for the remainder of their life, but would not be able to use your half share of the value of the property to fund their care home fees.  Your children would inherit your half share on the later death of your spouse / partner.

Asset Protection Trusts (Click Here for FAQs)
What is an asset protection Trust?

You can create a trust that you put your savings and home into in order to protect it from care fees and sometimes also from the hassle of maintenance of the property.  You will need to appoint Trustees for the Trust.

Will it work in saving care home fees?

Not always.  The Local Authority have to consider that a reason that you put assets in a trust was to avoid care fees and they can pursue the trustees for a period of 6 years after the date of the gift, if you need Local Authority financial support for care within that period.

Is there a down side?

Trusts are taxed in their own right and you can lose principle private residence exemption in respect of the sale of your home, if you sell and want to purchase another home.  You might have to pay Capital Gains Tax.

Is there any other tax?

Trusts are subject to a 10 year charge for Inheritance Tax at 20%, so the Trust will pay this every 10 years or part thereof.  You will need to register the Trust with HM Revenue & Customs and complete an annual tax return, unless they indicate it is not required.  If your Trustees buy and sell taxable assets, Capital Gains tax might also be relevant to your investments.

How will the Trustee manage the Trust?

They will have to have Trustee meeting, how frequently will depend on the kind of Trust, which will have to be minuted.  The Trustees must keep a record of their decisions and the transactions of the Trust Fund.

Will I have to go to Probate?

It might save you having to apply for probate on your death, but the Trust will still need to be wound up and HM Revenue & Customs will need to close their file on the Trust.  If you still retain an asset that requires a Grant of Probate, then your Executors might need to apply for Probate anyway.

Lasting Powers of Attorney (LPA) (Click Here for FAQs)
What are Lasting Powers of Attorney?

They are powers appointing someone else to manage your affairs if you become too unwell in the future to manage them yourself.  There are two kinds, one covering financial affairs and one covering health and welfare decisions.

What is a financial decision?

Anything that you own can be included in a financial decision, which includes your property and savings, and might also include any business that you might own or have a share of, it includes all your personal possessions and any outstanding loans.  Your attorney can do anything with you financial arrangements that you can, except make significant gifts.

What is a health and welfare decision?

Any medical decision about any form of treatment or drug therapy, including the right to refuse medication or treatment.  Social care decisions include what you wear, what you eat and who visits you.  An important decision is where you live, including whether you go into a care home and if so, which one.

What about life sustaining treatment

There is a separate question about life-sustaining treatment, such treatment can include CPR, food and fluid, medication, admission to hospital or antibiotics.  It is any kind of treatment that sustains life.  You can choose to allow your attorneys to make this decision on your behalf or not.

Can I appoint more than one person?

Yes, you can appoint both attorneys in first instance and substitute attorneys (if something were to happen to your first set of attorneys).  It is advisable to appoint more than one attorney, to ensure you still have someone to care for you, if something should happen to your main attorney/s.

How can the attorney act?

The attorneys can act either jointly which means that all of your attorneys must agree (which can be inconvenient) or jointly and severally, which means that any one of your attorneys can act on their own.  If you specify it, you can have a hybrid of this, where some decisions are jointly and some are jointly and severally, you need to stipulate which decisions are to be made either way.

How long does it take to create?

Technically the LPA is not created until the date that it is registered at the Office of the Public Guardian, which can take 2-3 months after the document is signed by the donor and the attorneys.

I’m thinking about waiting until I need it, is this a good idea?

As long as your proposed attorneys are over the age of 18, there is no time when it is too soon to create them, but if you were to have an unexpected illness or accident, it could be too late.  They do not need to be used immediately after they are created.

What happens if I don’t create LPAs and become unwell?

Your family will be forced to apply to the Court of Protection for a deputyship order, which takes longer than the registration of an LPA and costs more money in both legal fees and registration fees.  There are also ongoing bond and supervision costs with deputyship, which are not incurred with LPAs.