A report published by The Lancet Public Health in 2018 suggested that the number of adults aged 65 and over needing 24 hour care will almost double by 2035. There has been a lot of media coverage over the years in relation to homes being sold to fund care home fees as for most people, the family home is their main asset. The question we get asked most from our clients in planning their futures is: “What can I do to prevent this from happening?”

Protecting your home from care home fees

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Gifting Property

A common misguided perception is that you can gift the property to your intended beneficiaries during their lifetime and this will prevent it from being sold to pay for care fees. While you can do this, this option is not always effective and it exposes you to a number of risks you should consider. These risks sometimes outweigh the risk you are trying to avoid.

You may indeed run the risk of losing the property in other ways, for example, one of your intended beneficiaries might become bankrupt and their share of the property will be acquired by the Trustee in bankruptcy. Alternatively, one of your intended beneficiaries may go through a divorce and your property will be considered part of their matrimonial assets when finances are being dealt with. In essence if you gift your property away, it no longer forms part of your assets and you have no control of what happens to it. This limits your ability to control the property and your options for the future.

Trusts

What you can consider doing is putting your property into a Trust. This provides an element of protection so that the home does not usually have to be sold to fund care home fees. The benefit of writing the property into a Trust is that you can protect some or all of it from being used to pay for care home fees in the future – but still retain security that you have somewhere to live.  There are possible consequences to setting up a Trust over your home such as what if your Trustees go away or are hard to track down, or if they are professionals have they been closed down, say by the SRA.  What ongoing costs are there?  In addition to this uncertainty the local authority can elect to ignore the Trust you set up on the basis you are doing it to avoid care fees.  A better way might be to use your Wills to manage what happens to your home.

A carefully drafted Will can provide that a share of the family home passes into a Trust on first death, which may give the survivor a right to occupy. With care, such a Trust will ensure that the capital will be preserved and instead pass to the intended beneficiaries. A Trust of this type can be drafted flexibly to allow the survivor to ‘down-size’ or move property.

For further information in relation to putting in place Wills and Trusts in place, contact the Private Client Team on 01908 660966 / 01604 828282 or email PrivateClient@franklins.co.uk.

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The case of Clitheroe v Bond is a dispute between two siblings concerning the validity of two Wills executed by their late mother. The question for the Court was whether their late mother died intestate or whether the Wills executed were valid. If the latter, it would mean the entire estate, comprising of £400,000.00, would pass to the son in its entirety.

At the original trial, the original Wills were not admitted on the grounds of incapacity. This was as a result of the late mother’s affective disorder, including complex grief reaction, instance delusions and depression.

The son appealed this decision arguing the deputy master had applied the incorrect test. The son also argued the wrong approach for delusions had been applied. In essence, the basis of the appeal was that the incorrect test had been applied for testamentary capacity.

The High Court have provided clarification on the correct test to apply when assessing testamentary capacity.

Mrs Justice Falk confirmed the correct test for assessing whether a testator had the capacity to make a Will as set out in the 19th Century case of Banks v Goodfellow. Mrs Justice Falk further clarified the position in regards to delusions.

As a result of this clarification, an adjournment of three months was provided to the parties to allow them to reflect on their positions and see if there was an opportunity to reach an agreement.

If you require legal advice or assistance in regards to contentious probate and Trusts or Inheritance Act Claims, please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors either on 01604 828282 / 01908 660966 or at litigation@franklins-sols.co.uk.

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When choosing a solicitor to advise on your future planning, it’s important that the solicitor you choose has extensive knowledge, qualifications and experience. STEP is a worldwide professional association comprising of lawyers, accountants, financial advisors and other practitioners that assist families planning their future. Full STEP members, known as “TEPs” are internationally recognised as experts.

What do STEP members do and what is a TEP?

STEP members are specialists in inheritance and succession planning and draft Wills, Trusts, administer estates, act as Trustees and advise families on a range of private client services.

“TEP” stands for “Trust and Estate Practitioner” and is the designation given to full STEP members. In order to become a TEP, practitioners must have a combination of specialist qualifications and experience.

Why is STEP important?

Inheritance tax, succession planning and Trusts is a vast area of law. In order to provide holistic advice, specialist knowledge is therefore required to understand how one action might impact on a client’s other circumstances.  Using a member of STEP ensures that the Solicitor will possess this knowledge.

We want to be able to give the best possible service to our clients and this is one of the main driving factors behind STEP. All STEP members are subject to an extensive Code of Professional Conduct  and STEP’s Will Code, requiring members at all times to act with integrity and in a manner that encourages the confidence, respect and Trust of clients and also the wider community.

STEP represents the most experienced and senior practitioners in the field of Trusts and estates. They are highly qualified individuals and are required to keep up to date with the latest legal, technical and regulatory developments, meaning that clients can be confident in the advice that they are given.

The organisation itself has professional standards which make clear that members must uphold the reputation of both STEP and the field of Trust and estate practice, again ensuring client confidence.

Franklins and STEP

At Franklins we understand the importance of STEP and are fortunate that all our Team are members or working towards membership of the highly prestigious STEP organisation. For more information on why to use a TEP, click here.

For more information on the preparation of Wills and Trusts, contact Helen Taylor, Partner & Head of Private Client and the Team on 01908 660966 / 01604 828282 or email PrivateClient@franklins-sols.co.uk.

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When we think about making a Will, very few of us realise digital assets can be included, let alone consider including them. Much of the law governing Wills dates back to the Wills Act, which was passed in 1837, so it’s understandable. However, it’s worth thinking about including them.

What digital assets you can include in your Will

Digital assets can have significant value. Cryptocurrencies, such as Bitcoin, can be extremely valuable. But equally, it can be easily overlooked and lost if your computer is discarded.

More commonly, online banking facilities, such as PayPal and online shopping accounts, should be considered.

In today’s digital world, it’s likely you have at least one social networking account, such as Facebook or LinkedIn, if not more. Think about what you’d want to happen to these when you pass away. How will your Executors know exactly what online social media accounts you have and how to access them?

It’s also worth thinking about anything digital with sentimental value. Many of us have photos, videos and music stored in the cloud. Access to these is often based on license agreements, so you can access them, but you may not have any rights to these items. With this in mind, you should back-up items so you, and those that survive you, can access them.

What should you do about these assets?

For all of these digital assets, consider including a note in your Will, so your Executors know where to find them and how to access them when they’re administering your estate. For digital assets with financial value, it’s worth discussing them with a solicitor, as it could affect your Inheritance Tax position.

If you’re considering including any digital assets in your Will, our expert Private Client team can give you advice and support. Please get in touch on 01908 660 966 / 01604 828282 or email PrivateClient@franklins-sols.co.uk.

 

Make a Will

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What happens if you do not make a Will?

If you decide to not make a Will, the rules set out by government, known as the rules of intestacy, determine how your assets will be dealt with – regardless of any wishes you may have had.

The most common misconception is that under the intestacy rules, everything will pass to a spouse or civil partner. This is simply not the case. Consequently, you may be leaving your spouse or partner in a very vulnerable position should you pass away without a Will in place.

The law also does not recognise cohabiting couple within the intestacy rules, which may leave your partner in a vulnerable position should you pass away.

There may also be members of your family, close friends or charities you would have liked to benefit, who won’t under  these rules. It could also mean that someone may inherit from your estate that you have not had contact with for many years or simply would not have wanted to benefit.

So, what types of decisions can you make within your Will?

A Will can cover many different aspects depending on your circumstances. In the most common situations, a Will may include some of the following:

There are various other matters which you may wish to include within your Will, for example Trusts for minors, business, or over properties, but these do require specialist advice and are dependant on your circumstances.

Other benefits of making a Will

Having a Will in place lets you provide for the loved ones you leave behind and provides peace of mind that your executors will know who they are and what your wishes are, this they will be able to distribute your estate accordingly.

If you would like to obtain advice or guidance regarding preparing or reviewing your Will, please contact the Private Client team on 01908 660966 / 01604 828282 or email Wills@franklins-sols.co.uk.

 

In light of current circumstances with COVID-19, the Law Society and Ministry of Justice are currently reviewing the requirements around witnessing wills, in an effort to make is easier for individuals to sign their wills during these uncertain times.

Current legislation provides that your Will must be signed by the testator (the person making the Will) in the presence of two independent witnesses. With the current lockdown, self-distancing and self-isolating provisions it is becoming increasingly difficult to meet such requirements.

Whilst matters are currently up in the air, here at Franklins Solicitors LLP we are trying other methods to meet our clients’ needs, not only with signing their Wills but also when taking instructions.

Initial instructions

Firstly, we are providing our clients with the firms Will Questionnaire by email and requesting that they complete the same so that we have as much information as possible to fully understand their requirements, potential issues and wishes.

Instead of bringing this to our usual face to face meetings, we are currently offering telephone appointments, Skype calls, Zoom and, in some circumstances, even Facetime.

Execution

Various methods for signing your Wills are currently being offered:

  1. The Will can be posted out to the client for signing remotely. Before the Will is posted, a discussion of the Will clause by clause will be provided, together with a discussion as to how the Will needs to be signed and measures to be taken during this period of self-distancing and self-isolation. A briefing note will also accompany the bound Will for ease of reference.
  1. A home visit can be arranged. This is usually offered to our clients but, in current circumstances, we are adapting the way in which such visit is conducted. Firstly, the Will is be bound and placed in an envelope well in advance of the meeting. Using disposable gloves, the Will is then removed from the envelope and placed on the doorstep, or even passed through a window, for the client. Maintaining a safe distance, the testator can sign the Will in the comfort of their own home whilst our staff witness. The will can then be passed back through the window/placed on the doorstep so that the testator can step back keeping a safe distance while the Will is then witnessed in their presence. We are strongly advising client to use their own pens and to wash their hands thoroughly. 

We understand that this is a worrying time for many individuals and wish to continue assisting our clients with the preparation of their Wills as far as possible. If you would like to get in touch with a member of the team to make/review your Wills, please contact the office on 01908 660966 / 01604 828282 or by emailed at wills@franklins-sols.co.uk.