Living through a global pandemic has meant seeing loved ones taken from us at an alarming rate, and it has been distressing for many to see someone taken into hospital and not know if you might be able to see them again.

‘Whilst planning ahead to document your wishes in a will is the best way to arrange the division of your estate, sometimes plans do need to be put in place suddenly and at the last minute from a hospital, hospice or care home,’ says Lucy Brown, head of the wills and probate team with Kidd and Spoor in Whitley Bay ‘If you are concerned that you may not be well enough to return home and wish to put your affairs in order then a solicitor can help you to make a will or make arrangements for specific gifts.’

At present, it is important to balance the need to protect one another’s physical health with the urgency of making a new will or a lifetime gift. It is still possible to see your solicitor and obtain legal advice. This can either be via video conferencing software or face-to-face, so long as it is safe to do so and all coronavirus precautions are met.

Testamentary capacity

It is vital for making any will or gift that you have testamentary capacity. This means that you must understand that you are making a will or gift, you must know the extent of your estate, and you must comprehend any claims to which your estate could be subject following your death.

If your mental capacity is in any doubt, a medical report may also be needed. For example, a recent diagnosis of dementia will not necessarily mean that you do not have testamentary capacity, but a medical expert is likely to be needed in order to confirm this.

This may slow things down and complicate the process, but a solicitor will be well versed in these issues and can help to ensure that they do not prevent a valid will from being executed in time.

Precautions against undue influence

Any decision to make or amend a will must be your own. If there is any hint of undue influence, steps will need to be taken to protect you. For example, it may be that you have asked a family member or friend to contact your solicitor for you, if that person is also intended to be a beneficiary your solicitor will need to be satisfied that they have not pushed you to make the will. Unless satisfied that your instructions are yours and yours alone, the solicitor will be unable to draft the will on your behalf.

Finding witnesses

As with any will, a will which is made in a care setting must be signed by you and by two independent witnesses. Given the urgent nature, and as your witnesses and you must see each other sign the will, the most practical arrangement is for all three of you to sign at the same time, in one another’s company.

Your witnesses must also be independent, meaning that they cannot be named as one of your beneficiaries, nor can they be the spouse or civil partner of any of your named beneficiaries.

Finding willing witnesses to a deathbed will can be tricky, as many medical professionals are not happy to witness the wills of those in their care.

Your solicitor can usually bring a colleague and they can both act as your witnesses.

Handwritten wills

Whilst it is a requirement that all wills must be in writing in order to be valid, it is not necessary that they are typed. A handwritten will is often the best option, given that there may be a shortage of time, and our solicitors are best placed to ensure that a handwritten will is effective and appropriate to your circumstances.

Making a deathbed gift

If time is too short to make a will, or if there are relatively small gifts you want to leave to certain people without the formality of a will, you may be able to leave them by way of a gift.

A deathbed gift is one which is made in reasonable contemplation of death occurring in the near future. Appropriate mental capacity is still a necessity for the gift to be valid.

Another factor which is necessary for a deathbed gift to be valid is that you must part with dominion. For example, you must physically hand over car keys or title deeds to the intended recipient. If you are unable to successfully part with dominion, the gift will not be valid. This could occur if the person you intend to give the item to is unable to visit you in time.

If the gift is valid, it is important to note that it will supersede the terms of any prior will. Therefore, if you specifically give an item in your will to one person and later give it to someone else on your deathbed, the first person will not receive that item and they stand to be disappointed when the terms of your will are revealed.

As deathbed gifts have complex rules, it is best to instruct a solicitor to advise on the potential gift so as to prevent a problem arising later for your executors.

What if I recover?

If your health recovers after having made a deathbed gift, then the gift will automatically fail. As the gift would have only passed to the recipient upon your death, this means that they will never receive it and the item remains yours.

It should also be noted that it is possible to expressly revoke the gift once you have made it, whilst you are still alive.

Practical considerations for deathbed wills and gifts

Leaving any will or gift until the last minute means that time will be against you. This can bring with it the risk that time may not be sufficient to give effect to your wishes. If you are in a hospital or a care home, visiting restrictions might also prevent things from proceeding swiftly enough.

When making any decision about gifts or a will, it is important that these are not made in haste. However, if you are certain about the gift or will you wish to make, professional advice and drafting is vital in preventing your decision from being contested after your death, and our solicitors can help you ensure that you adhere to all relevant rules and make your final wishes validly.

For further information, please contact Lucy Brown in the wills and probate team on 0191 297 0011 or email whitley.bay@kiddspoorlaw.com

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

If you are someone’s executor, then it can be tempting to try to administer the estate yourself with a view to saving money. If the estate is simple and you are comfortable with the legal and tax regulations, then this may be fairly straightforward.

However, executors are personally liable to the beneficiaries and to HMRC in regard to inheritance tax, so it is important to be aware of the pitfalls.

Lucy Brown, a Solicitor in the wills and probate team with Kidd and Spoor sheds a light on some of the mistakes which she has seen people make over the years albeit with the best intentions.

Failing to use the correct will

Before starting the estate administration process, you must ensure that you have the deceased’s most recent valid will.

It may be that they told you exactly where to find this but, if not, you must locate the original. If the deceased has changed their will several times, they could have copies of several different wills with their paperwork. If you administer the estate according to old will terms, you may end up giving assets or money to the wrong people, which risks leaving the actual intended beneficiaries out of pocket and finding yourself liable for their loss.

If you are unsure which is the correct will, a solicitor can help you determine this. A solicitor can also confirm the validity of the will and advise you on searches you could undertake to ensure there is not a more recent valid will of which you are unaware.

An invalid will

As executor, it is your job to ascertain the overall validity of the will. If the will has not been signed or properly witnessed it will not be valid, and an earlier will should be found and administered instead.

There are other reasons why a will may be invalid, including if there are doubts regarding lack of capacity or undue influence, changing status with marriage or divorce. In some cases, part of a will may be valid whilst other parts may not.

Failure to locate all beneficiaries

Some wills leave gifts to members of a class. This means that the beneficiaries are not individually named. It will, therefore, be up to you, as executor, to locate all the class members. This may involve making enquiries with known beneficiaries and family members and will extend to taking all reasonable steps to ascertain all of the beneficiaries. If you fail to take all reasonable steps and a disappointed beneficiary later comes forward, you would be personally liable for their loss.

A solicitor can help you to determine what counts as ‘all reasonable steps’ in the circumstances.

Failure to follow the will terms

It is important that you follow the terms of the will exactly, but mistakes in this regard are very common.

You must deal with all the gifts and trusts according to the instructions in the will, and possibly also a letter of wishes. For example, there may be limitations on when and to whom money can be paid. Sometimes, part of a will may seem like a straightforward gift, but in fact it may be a trust. While a solicitor is trained to spot this, the difference is subtle and may not be noticed otherwise.

Whilst there are circumstances under which the terms of a will can be altered, this must be done using formal legal procedures. It is not simply up to an executor to change a testator’s wishes after death, and you should consult a solicitor if you think this is necessary.

Failure to keep estate funds separate

Too often executors place monies that have been collected in from the estate in their personal bank account. While this is usually only done temporarily and without any malice, it does amount to a breach of executors’ duties. Opening an executors’ bank account is a simple process and this should be done before any estate assets are collected.

 Failure to collect all the assets

Sometimes small sums can be held in accounts that the testator may have forgotten, but as executor it is your duty to track down these accounts and make sure that the sums are claimed and distributed to the beneficiaries.

It can also be tricky to track down some digital accounts if you cannot find login details. Although financial institutions should have clear processes, they are not always straightforward to follow if you do not have all the necessary information.

Inaccurate valuations

Another very common mistake made by executors is failing to obtain accurate and up-to-date valuations. Outdated or estimated valuations can affect the value of the estate and mean beneficiaries may miss out. Valuation mistakes may also affect the inheritance tax that is paid which could result in you, as executor, being personally liable for an underpayment.

If you are the executor of an estate, it is imperative that you understand your duties before you commence the estate administration. Whether you require some initial guidance or would like a professional to deal with the entire process on your behalf, our solicitors can help you ensure that you do not fall foul of some of the most common probate mistakes.

For further information, please contact Lucy Brown in the wills and probate team on 0191 297 0011 or email whitley.bay@kiddspoorlaw.com

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

IS THE CARE FEES MONSTER COMING TO SWALLOW YOUR HOUSE?

Care Fees are a major issue. We’re all living longer, and the cost of care

is increasing rapidly. The care fees monster is hungry, politically driven and

wants you to pay. With some careful planning at the right time and

with the benefit of expert advice we can all protect our assets.

Does this sound familiar?

“People who have nothing get all of their care fees paid for them.

Why should I pay in full just because I have worked hard?”

OR

“I have been careful over decades to acquire my house, paid my

mortgage for 25 years, my tax and my N.I. contributions,

so why should I hand it back to pay for care fees?”

An Asset Protection Trust might be the answer

So what puts people off? Let’s talk about it.

• I’ve been warned that these trusts don’t work, and that the

council will be able to force the sale of my house anyway.

That’s right isn’t it?

Not if the trust is constructed correctly.

• But what about the 7 year time limit?

There isn’t one – it’s a myth

• What if I want to move house / downsize?

You can still do that; the new property will also be protected

• What if my kids throw me out of the house?

You have a guaranteed right to live there, protected by an

entry on the Land Register. Your position is secure

 

TALK TO US – FIRST INTERVIEWS ARE ALWAYS FREE AND WITHOUT OBLIGATION

It will cost nothing to find out how it works, but could save your family a fortune.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Putting aside the politics (and that can be difficult at the best of times) all of us need to think carefully about future care, whether it is for ourselves, our parents or our grandparents.

Whatever your colours, the only clear news from the government is that the rules are not clear. There is so much information in the media, exchanged in conversation and broadcast daily that confusion has spread very quickly.

In one sense the publicity surrounding social care is positive, because it is generating debate. It has started to make us all consider the reality of care seriously. On the other hand, many of the rumours and political messages are not accurate and, in some cases, misleading. There is NO 7 year time limit. In fact there are no time limits at all.

At Kidd & Spoor we have been striving to deal with many misconceptions and misunderstandings about care costs, financial assessment rules and connected issues for decades. We have succeeded where many others have not. There are complexities but they can be simplified.

There is nothing more rewarding than the smile on a client’s face when they understand how we can help them, and when “niggles” that they have been worrying about disappear, like the mythical 7 year time limit.

Whatever happens at Westminster may or may not trigger rule changes, but that will take time. Whilst the politicians continue to express their differences, the law and regulations remain unchanged.

Come and see one of the team at Kidd & Spoor, or we can visit you at home. First meetings are always free and without obligation. Don’t be afraid to talk it over with us. We have the experience and expertise, and we can help. It won’t cost you a penny to discuss it, but it could save your family a fortune.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.