What are the risks of being an executor?

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When someone makes a Will, they appoint one or more people as their ‘executor’, the individuals responsible for ensuring their wishes are carried out and managing all legal, financial, and practical matters after their death.

Most people choose a family member – such as a spouse, child, or sibling – to take on this role. Others opt for a trusted friend or a professional, such as a solicitor with expertise in Wills and probate professional (a Wills and probate solicitor, for example).

While being named as an executor is an important responsibility, it can also come with significant risks.

What does an Executor do?

Many people assume that an executor’s job is simply to distribute inheritance to beneficiaries, but there is a lot more to it. Before any money or assets can be given out, the executor must:

  • Identify and value all assets, such as property, bank accounts, pensions, and investments.
  • Identify any debts and liabilities, including outstanding loans and tax obligations.
  • Pay off debts and settle any Inheritance Tax, Income Tax, or Capital Gains Tax due.
  • Locate all beneficiaries (tracking down any missing beneficiaries) and ensure they receive their inheritance.
  • Handle any disputes or legal claims made against the estate.

Executors must see this process through from start to finish, ensuring all obligations are met before distributing the estate. It can be a complex and time-consuming role, which is why legal support is available – and often advisable – if any issues arise.

Who can be an Executor?

An executor must be over 18 and have the mental capacity to carry out their duties. Beyond these legal requirements, they should have:

  • A strong sense of responsibility.
  • The time and willingness to commit to what can be a lengthy process.
  • Organisational and administrative skills.
  • The ability to communicate effectively with beneficiaries and other executors.

If there are multiple executors, they will need to work together to manage the estate. In some cases, conflicts can arise, so choosing executors carefully is crucial when making a Will.

What are an Executor’s legal responsibilities?

Executors must act in the best interests of the estate and its beneficiaries. They have a legal duty to remain impartial, even if they are also a beneficiary. This means they must not:

  • Put their personal interests ahead of their responsibilities.
  • Distribute assets before settling debts and taxes.
  • Show favouritism towards certain beneficiaries.

Can an Executor be personally liable?

Yes, executors can be held personally responsible for errors made during the administration process. Examples include:

  • Tax mistakes – If an executor submits incorrect tax information, they could be liable to pay any shortfall.
  • Incorrect distribution – If an executor distributes the estate before locating all beneficiaries or settling debts, they may have to cover any losses themselves.
  • Mishandling disputes – If a Will is contested, the executor may have to manage legal proceedings while ensuring the estate is protected.

Given the risks involved, many executors seek professional advice to ensure they fulfil their obligations correctly.

Common challenges Executors face?

Even the most capable executors can run into difficulties. Some of the most common challenges include:

  1. Time and complexity – Executors often underestimate how much time and effort is required. If they find themselves overwhelmed, they speak to our Wills and Inheritance solicitors straightaway to help them manage the process or, in some cases, step down from the role.
  2. Disputes between executors – If multiple executors are appointed, disagreements can arise. When writing a Will, testators should consider whether their executors will be required to make decisions jointly (where all must agree) or jointly and severally (where they can act independently). Taking account of executors’ different personalities and personal situations should help ensure the right framework is in place.
  3. Difficulties with Beneficiaries – Executors must handle beneficiaries with sensitivity while maintaining their legal responsibilities. If beneficiaries dispute the Will’s terms or challenge how the estate is managed, it can put the executor in a difficult position. In extreme cases, they could even face legal claims for not carrying out their role properly. It’s even more complex when an executor is also a beneficiary, with clear lines having to be drawn and maintained.
  4. A contested Will – A Will can be challenged if someone believes it is invalid or unfair. Grounds for contesting a Will can be read about here.

Contested Wills can cause significant delays and stress for executors, who must continue protecting the estate while legal proceedings take place. Read about our experience in Will and inheritance disputes here.

Should you accept the role of Executor?

Being an executor is a major responsibility, and it’s not a role that should be taken on lightly. While there are risks involved, having the right support can make the process far more manageable.

Our expert Wills and Inheritance solicitors are here to help.

Whether you’re an executor facing difficulties or someone planning their Will and considering who to appoint, we can provide clear, practical advice to protect your interests. Our team is here to help.

Leave a Lasting Legacy with Free Wills Month in March 2025

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We’re delighted to be participating in Free Wills Month in March 2025 , an initiative dedicated to individuals aged 55 and over. This program offers eligible people to have a simple will professionally drafted or updated at no cost, ensuring that your final wishes are both accurately recorded and legally binding.

Benefits of participating

  • Peace of mind: Ensure that your future is secure by clearly documenting your final wishes, providing certainty and comfort for you and your loved ones.
  • Support charitable causes: Leave a lasting impact by designating a portion of your estate to the charities that matter most to you.

Free Wills Month March 2025 Charities

  • Expert legal guidance: Our legal professionals will offer their expertise, ensuring that your will is both comprehensive and legally binding, accurately reflecting your wishes.

Couples interested in creating mirror wills should note that only one partner needs to be aged 55 or over in order to be eligible for a free will. This consideration aims to facilitate the process for partners wishing to make reciprocal arrangements regarding their estates.

We have a limited number of appointments available, so if you’re interested in taking advantage of Free Wills Month, get in touch as soon as possible.

To enquire about our free will month service, contact our Wills & Probate team on 0808 256 2917 or email [email protected].

What the 2024 Budget means for you

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The Autumn Budget 2024 has introduced significant changes to taxes and financial allowances, with a £40bn tax hike to support economic growth. If you’re focused on securing your estate and passing on wealth to loved ones, these updates are worth your attention. Here’s a look at the key areas and how they may affect your financial planning.

Inheritance Tax (IHT)

IHT is charged on the net value of a person’s estate after they have died. Not all estates are taxable; only those valued at more than £325,000 stand to be taxed (at 40% on the value above £325,000). This is the basic IHT threshold. The Chancellor confirmed this threshold will remain unchanged until 2030, which should mean many families remain unaffected by IHT.

However, changes from April 2027 may affect more estates:

  • Pension funds and death benefits will now be included in your estate’s value, potentially taking more estates over the IHT threshold. If this affects you, we can help you explore ways to manage your family’s inheritance tax burden effectively.
  • IHT reliefs for agricultural and business assets: Tax relief will reduce to 50% on agricultural and business assets valued over £1m. For many farming families, this could mean a notable impact on inheritance planning.

Capital Gains Tax (CGT)

CGT rates will increase from 10% to 18% for basic rate taxpayers, with higher-rate taxpayers paying between 20% and 24%. If you are considering selling assets, such as shares or a second property, it may be wise to accelerate your sale before these changes take effect.

Pension changes

The state pension will rise by 4.1%, in line with average earnings. But another key change affects those who have planned to pass on pension wealth:

  • Inherited pension pots will now count towards the IHT threshold. This adjustment aims to prevent pensions from being used mainly as a wealth transfer tool, maintaining their original purpose of retirement funding.

Second homes

Stamp duty on second homes will rise to 5% from 31 October 2024. While this may benefit first-time buyers, there is no additional relief for them, making it uncertain how effective this change will be in boosting first-time homeownership.

Planning for the future

That’s a snapshot of some aspects of the Budget that are sure to affect our clients and the plans they have already, or are soon to, put in place. Every situation is different, of course. But what’s common to everyone is the need to take stock of the financial and other changes that affect them.

Understanding how to make the most of what you’ve got, and how to pass on the value to those you love, makes for peace of mind now and a secure financial future for your family.

If you’re unsure how the Autumn Budget impacts your financial planning or would like tailored advice on IHT, CGT or any other aspect of wealth preservation, call us now on 0808 256 2917 for a confidential consultation today.

How can I protect my assets from care home fees?

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We are all forced to speculate as part of planning for the future. Health, finances, and families continually evolve, so it’s impossible to map a firm path through life. The temptation may be to focus on the here and now, but uncertainty makes forward-thinking all the more critical. Preparing for what may lie ahead means we and our families will be cared for, which is more important than ever in light of the cost of living crisis.

One of the unknowns is the possibility of moving into a care home in later life. This will be the reality for many of us, but too few address it. Some people are unaware that this is something they should consider. Others choose to put it to the back of their minds because becoming dependent on others for care can raise uncomfortable questions about health and welfare.

But for financial reasons, if nothing else, it’s wise to give future care some serious thought; according to Age UK, a place in a care home costs around £800 per week on average. A nursing home is in the region of £1,100. And while some people will be entitled to funded care, many others won’t. The unfortunate reality for some people who haven’t taken steps to protect assets is that their savings will be wiped out by care home fees, a situation which my mother has seen all too many times as a care home nurse. In such circumstances, the family home may be lost, and children and grandchildren may lose their inheritance.

So, it’s wise to consider the prospect of paying for care later in life. Here are some key things to know:

There are different types of care

‘Care homes’ include residential homes, where carers help with everyday tasks, and nursing homes, offering round-the-clock nursing care. Some people may be suited to residential care, where carers visit the person in their home. A care needs assessment by your local council will help determine the correct type of care for you.

 Whether you’ll have to pay or not depends on how much money you have

The current threshold in England is £23,250. If you have more than that amount to your name, you usually need to pay your care home fees entirely. Your council would carry out a means test, and if you were to qualify for financial support, it would be worked out at that point.

Some people with health-based needs will qualify for NHS continuing healthcare. This means their place in a care home will be funded entirely by the NHS.

Some significant changes to care funding will come into force next year. These include, in England, an £86,000 cap on the amount a person will need to spend on their care.

The value of the family home is sometimes taken into account in a means test

However, it should be excluded if the person’s husband/wife or civil partner continues to live there. Other categories of occupants – for example, a child under 16 – also prevent the house value from being included in the means test.

Pension is another asset that clients often ask about. A means test will take account of a state pension, but where a workplace or private pension benefits the person’s husband/wife or civil partner, only 50% of its value will be considered.

Some people need to sell their home to fund care

Every person and family is different, and there are various options – and costs – regarding the type of care available. Some people have significant savings or investments that can fund their care, meaning their home is untouched. There are all sorts of scenarios that could have a bearing on whether you might need to sell up, and your solicitor will help you get a clear picture of this as part of the planning process.

 Giving away assets is a dangerous game

Clients often ask us: can’t I give things away so that what’s left falls below the £23,250 threshold? While there are circumstances in which it’s okay to make gifts or big purchases, strict rules prevent people from reducing the value of assets to avoid having to pay care home fees. Activity leading up to a means assessment (even if years previously, if the prospect of care was on the horizon) would be scrutinised. It could be deemed ‘a deliberate deprivation of assets’. So, for example, transferring ownership of your house to your children or giving them each a lump sum, ostensibly as ‘early inheritance’, could be caught by the rules.

There are things you can do to put yourself and your family in a better position

Most clients tell us that it’s the thought of losing their family home that they fear most. And there are some ways around having to sell. One possibility is to choose domiciliary care rather than moving to a care home (although this won’t suit everyone). That arrangement could be funded through equity release. Another option could be to rent out your home and use that income to pay your care home fees.

Longer-term planning can involve the use of trusts to protect assets. We advise clients on this as part of the Will-making process and later on as their circumstances change. Various types of trust can be put in place to ringfence property and other assets for your family’s benefit. The key is to start thinking about this now.

It’s never too early to start planning

Planning doesn’t have to mean getting everything nailed right now. Sometimes, it’s about simply getting your head around the things you should consider sorting out in the next few weeks, months and years. That’s a great start, and we’re huge advocates of a step-by-step approach.

Remember that plans aren’t set in stone (it’s pretty easy to change a Will, or to alter a trust arrangement, for example). So, if the fear of committing to arrangements is holding you back from starting to get plans in place, your solicitor will be able to reassure you. We encourage clients to schedule regular review dates so they keep track of their planning and make changes where necessary so that plans are always in line with their wishes and their circumstances. This isn’t onerous, meaning you’re set up for the years ahead.

For tailored advice on protecting your family’s future and inheritance against rising care costs contact Thomas Mansfield’s Wills & Probate team on 0808 256 2917 or email [email protected].

Secure your legacy with Free Wills Month in March 2024

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We’re delighted to be participating in Free Wills Month in March 2024, an initiative dedicated to individuals aged 55 and over. This service provides a vital opportunity for eligible persons to have a simple will professionally written or updated at no cost, ensuring their final wishes are accurately and legally documented.

Benefits of participating

  • Guaranteed peace of mind: Secure your future and ensure that your final wishes are clearly documented, bringing certainty and peace of mind to you and your loved ones.
  • Support charitable causes: Free Wills Month provides a significant opportunity to leave a legacy to the charities close to your heart, making a lasting impact on the world.

Blue Cross

  • Access to professional legal guidance: Our experts will offer their expertise, ensuring that your will is both comprehensive and legally binding, accurately reflecting your wishes.

It’s important to note that for couples interested in creating mirror wills, it is sufficient if just one partner has reached the age of 55. This consideration aims to facilitate the process for partners wishing to make reciprocal arrangements regarding their estates.

We have a limited number of appointments available, so if you’re interested in taking advantage of Free Wills Month, get in touch as soon as possible.

To enquire about our free will month service, contact our Wills & Probate team on 0808 256 2917 or email [email protected].

Making probate easier for those you leave behind

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It’s easy to put off doing the things in life that feel overwhelming. Thinking ahead to your family’s future without you, for example. But what if we told you that this can be a positive exercise?

Good planning during your lifetime means loved ones stand to benefit later from the financial and other arrangements you put in place. Doing this gives real peace of mind. You can relax, knowing you’ve provided for the right people and that the practical steps after you have passed away will be easier to work through. The emotional toll on your family won’t be added to by loose ends, missing information, confusion.

When a person passes away, their estate (in most cases) must go through the process of probate. Probate is the key to unlocking assets. It confirms who has authority to ‘administer the estate’ and deal with the person’s personal, financial and other affairs. Until probate is issued, the estate assets cannot be sold or distributed. (Where a person dies without a Will, the process is similar but the intestacy rules apply.)

The idea of going through the finer details of everything a loved one owned, owed, and intended for others can be daunting. As probate specialists, we help families deal with the legal process and practicalities. And we help people prepare so that, when the time comes for their estate to be dealt with, probate is an easier experience for those they care about.

How can you make probate simpler?

Make a Will

A Will sets out your wishes and allows you to control how your estate will be dealt with. It names the ‘executors’ – the people who will administer your estate. It can also set out funeral wishes, beneficiaries, and identify guardians for minor children. These types of details give much-needed certainty and guidance to those left behind.

A Will is not a once-in-a-lifetime document. You should review your Will any time your personal or financial circumstances change. And it’s a good idea to let your executor and/or family know where the Will is stored, as the original document will be needed during the probate process. Without it, the process of applying for probate becomes more complex.

Plan for inheritance tax

Inheritance tax (IHT) must be calculated and paid before the executors can apply for probate. With good planning, you’ll be able to minimise the amount payable so that there’s more value to be distributed from the estate. If you think your estate will be liable to IHT, a financial advisor and a solicitor could help you mitigate the liability.

Get your paperwork in order

Imagine being the person responsible for having to trace another person’s assets. Unfamiliar paperwork and online accounts can make this complicated and time-consuming. So help them out by keeping a record of your assets, together with any usernames and passwords that might be needed by your family. Store these in a safe place.

With the right help, future planning can be straightforward. And it’s always worth the effort. As trusted experts with years of experience in helping people and families before, during and after probate, we see the difference forward-thinking makes. That’s why we work very closely with people to understand their circumstances, share their burden, and support them with the very best legal and practical guidance.

For tailored advice on future planning and probate contact Thomas Mansfield’s Wills & Probate team on 0808 256 2917 or email [email protected].

The Queen of Soul and the handwritten Will

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Aretha Franklin has often been cited as one of the most high-profile celebrities not to have made a Will. But nine months after she passed away, there was a significant discovery.

Two Wills were uncovered. The first, from 2010, was a handwritten note found along with other documents in a locked desk drawer in her home. The second – also handwritten but dated 2014 – was in a spiral notebook wedged under the cushions of her sofa.

Was the 2014 note a valid Will that superseded the first? That was the question for the US court that heard the case which embroiled Franklin’s family. And the outcome would be significant because of the difference in the inheritance provisions made in 2010 and in 2014. It is said to have taken jurors less than an hour to decide that the later Will was valid. Among the reported facts are:

  • The Will included the words: “…being of sound mind, I write my will and testimony”.
  • One son said Franklin often handled business on the sofa. “It doesn’t strike me as odd”, he said, that a Will was found there.

Some may be surprised that a document, seemingly so informal, could hold the same legal status as a lengthy, typed document drafted meticulously in a lawyer’s office. Does it mean that formalities don’t really matter? Or that there’s no need to involve a lawyer at all?

It’s certainly possible to prepare your own Will, but this can be a risk. There are two main reasons. The first is that the law in England and Wales is very specific about the things that are necessary for a Will to be valid. These are that the Will must be in writing and that the person making it must:

  • be at least 18 (there is a military personnel exception)
  • have the intention to make the Will, voluntarily and without pressure from anyone else
  • have ‘capacity’ – a sufficient degree of understanding
  • sign the Will in the presence of two witnesses, who are not beneficiaries
  • be present while the two witnesses sign the Will

If one or more of these requirements is missing, the Will is likely to fail. An invalid Will means that efforts to control the way in which assets will be distributed post-death will have been in vain; the laws of intestacy take over, dictating who the beneficiaries should be and the order in which they should inherit. This can lead to outcomes that the deceased may not have wanted, and family disagreements which needn’t have come about.

As Wills and inheritance specialists, we help clients benefit from the certainty of having a valid Will in place. Part of this involves checking two of the less straightforward requirements of validity: the voluntary Will, and ‘capacity’ (or ‘sound mind’, as it used to be known). We may suspect that our client is being pressured to write their Will in a particular way. Asking the right questions and ensuring they know that undue influence could render their Will invalid means clients are in the best place to make the right decisions. Equally, it’s sometimes apparent to us that a client’s ability to understand what it means to make a Will and its effects is compromised. In some situations where there is doubt about capacity, a medical assessment can be made and a certificate provided.

The second reason it’s wise to have a specialist solicitor prepare your Will is that they will make sure  your Will says everything it should, in the right way. The ideal outcome is that a Will is thorough and easily understood and applied after a person’s death.  A document that doesn’t deal with the entire estate, doesn’t properly identify beneficiaries, uses contradictory or otherwise unclear language, or attempts to put in place arrangements that may be unwise or even illegal or otherwise unenforceable, will cause problems further down the line. It’s our job to help clients get the right provisions in place, taking account of their personal circumstances. This can lead to broader discussions around tax efficiency, for example, which can be useful to clients keen to maximise the value beneficiaries will receive from the estate.

Writing your own basic Will could well bring some benefits, but there is a danger that it will create uncertainty and perhaps even conflict in your family. Having a lawyer alongside you as you collate details of your estate and its value and make important decisions about beneficiaries and inheritance can significantly improve the outcome. And you’ll get peace of mind that the right people stand to benefit as you’d like them to once you have passed away.

For advice about making a Will or amending a Will you have already made, contact Emma Howlett or a member of the Wills & Probate team on 0808 256 2917.

How have the intestacy rules changed?

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The Government has announced that the statutory legacy will increase from £270,000 to £322,000 with effect from 26 July 2023.

What is the Statutory Legacy?

If a person dies without a Will (known as dying ‘intestate’), their estate will be divided according to the rules of intestacy. A significant component of these rules is the ‘statutory legacy’, which may not reflect one’s personal wishes.

In simple terms, the statutory legacy is a fixed sum of money that a surviving spouse or civil partner is entitled to when their partner dies intestate, and they have surviving children. The amount of the statutory legacy can change over time, being updated to reflect inflation and other economic factors.

The remainder of the estate, after the statutory legacy has been paid, is then divided according to the rules of intestacy. This often means that the remaining assets are shared between the surviving spouse and the children.

While the statutory legacy might offer a degree of protection, and the increase to £322,000 is certainly welcome, it’s a blunt tool in the nuanced world of personal relationships and individual wishes, and can have many unintended and negative consequences.

Potential pitfalls of not having a Will

  • Unintended beneficiaries: The rules of intestacy are generic, so they might not reflect your personal relationships or your wishes for your assets. Close friends, unmarried partners, and even certain relatives might not receive anything from your estate.
  • Delayed access to assets: The process can be time-consuming, causing additional stress for your loved ones during an already challenging period.
  • Additional costs: dying intestate may lead to increased legal fees and potential court proceedings, diminishing the assets available to beneficiaries.
  • Lack of control over children’s inheritance: Without a Will, children automatically inherit at the age of 18. This might not align with your wishes or the maturity level of the child.

You can avoid leaving the division of your assets to a one-size-fits-all system by drafting a Will to protect your loved ones, ensure your wishes are respected, and potentially save on taxes and legal fees.

Our team is here to help. For professional advice about drafting a Will that reflects your personal desires and safeguards your family’s future, contact Emma Howlett or a member of the Private Client team on 0808 256 2917.

The New Year’s resolution you can stick to…

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Exercise more? Cut out alcohol? Make a Will?

Good intentions come in all shapes and sizes. And a new year presents that perfect opportunity to make changes, to improve, to get things done. It feels like a time to start afresh, with a positive attitude and a determination to shake off the old.

That’s the theory, anyway. (How many of us have made resolutions, only to fall at the first hurdle?) But the experts say it’s all about setting achievable goals. It’s about pinpointing what needs to be done, what can be achieved and committing to doing it.

As a legal expert who helps people get their personal affairs in order, clients sometimes come to me in January with one question: I need to get myself organised, but I have no idea where to start. My response? Let’s talk about your situation.

Personal circumstances dictate what measures should be put in place, how and when. Some clients will have particular concerns – how to ensure the right people will benefit from their estate, how to minimise tax, how to earmark money for care home fees, for example – and we’ll talk through the best ways of achieving those aims. There may be things clients haven’t considered – a discretionary trust or a living Will, for instance. And there will be clients who know what they need and simply want us to get the paperwork in place. The key thing in each of those scenarios is understanding the full picture, so that the future planning fits together cohesively.

This all has to start somewhere. And my message for now is: use January to get the basics done. A Will and a Lasting Power of Attorney are two documents that can be put in place relatively quickly and they offer peace of mind that aspects of your future, and that of your family, are taken care of.

Why a Will?

Everyone should have one. It is the legal assurance that your estate will be dealt with in the way you want after you have passed away. It can be used to express certain wishes and it means your family will avoid being subject to the rules of intestacy which add complexity to the estate management process and could mean significant people in your life don’t inherit. It’s even more important to have a Will if you and your partner are not married or in a civil partnership, as the law offers less protection to cohabitees – you may not inherit your family home in the event your partner dies, for example.

Making a Will gives peace of mind, but it’s not something you should forget about once it’s been written and filed away. It’s really important to check in on your Will every three to five years and always when aspects of your life change – a new baby, you receive some inheritance, your executor passes away, you marry. If you need to make a change, your solicitor will be able to advise you on whether to prepare an entirely new Will, or whether the change can simply be made via a ‘codicil’ – a formal alteration.

Why a Lasting Power of Attorney?

These are usually very straightforward to put in place, and there can be huge advantages to having one. A Lasting Power of Attorney appoints people to make certain decisions about your property and finances or your health and welfare if you become unable to make those decisions for yourself. It’s a bit like an insurance policy; you might not need to call on it, but it’s there if you do. None of us knows if an accident or an illness might rob us of our mental capacity, leaving us unable to take proper care of ourselves. A Lasting Power of Attorney means the right people are ready to step in if called upon.

As with Wills and other future planning documents, it’s important to update your Lasting Power of Attorney if relevant change happens in your life. You might need to appoint an additional attorney, or replace one who can no longer carry out the role. You may want to change an instruction or preference you’ve set out. Making sure the Lasting Power of Attorney keeps apace with developments means you’ll have a document that offers you the best protection.

Of course, there are many other aspects of future planning that can be put in place relatively quickly and which will reassure you and your family for the years ahead. The most important thing to do is: something. Taking steps now to get plans in place will place one, giant tick on your to-do list. And speaking with a Wills and inheritance specialist is a great place to start. They’ll help you map out a plan and get those vital legal and financial provisions in place.

For advice about making a Will or a Lasting Power of Attorney, or any other aspect of future planning, contact Emma Howlett or a member of the Private Client team on 0808 256 2917.

Funeral plans as part of Will preparation

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How does the thought of planning your funeral sound?

While we’re all encouraged to live ‘in the moment’ as much as possible, thinking ahead is important if we want to make things easier for those we leave behind. Powers of attorney, trusts, Wills, and tax planning are all part of that process, without which loved ones face a less straightforward route to dealing with our affairs and, potentially, inheriting less of the value in our estate.

My question to clients is always: if there are steps you could take now to improve things for those you care about, why not?

Making your funeral wishes known is one way of easing the burden on those who would otherwise have to make decisions on your behalf. Family members tend to take charge of arranging funerals, although this responsibility is technically that of the executors of a Will. In many situations, the executors will be family members, so that by itself may not be a problem. What can cause a problem, however, is where clear wishes haven’t been expressed (perhaps there is no Will, or there is nothing else to suggest what the person who has died wanted for their funeral) and there’s a disagreement within the family about what to do. The division could be over something fundamental, like burial or cremation. Or it could come down to the detail of the service, the location, music, eulogies, or format of the day.

There is nothing to say that funerals have to be mapped out in advance and quite often this isn’t possible. However, doing so needn’t be difficult or time-consuming. Some people choose to factor their funeral into writing their Will, and lawyers like me help them focus on the key things as well as the smaller details that could really make a positive difference to the situation in which loved ones will find themselves. Others might decide to record their wishes as an ‘addendum’ (additional document) to their Will, which means the Will they’ve already made doesn’t have to be changed. And some people simply write their wishes on a piece of paper and file it in their desk drawer. The key point is the people who will need to know about those wishes will discover them and, although they’re not legally bound to, will act in accordance with them.

Clients often ask me if they should tell family members about their funeral plans. This is a hugely personal decision and one for people to take individually. It can be reassuring from both perspectives – there is comfort in knowing that wishes have been made clear and are accepted. However, there is always a risk that certain wishes may spark strong feelings and even conflict within families. You could find yourself under pressure to change your mind about some of the wishes you have expressed, which may or may not be a positive development.

Having a good understanding of the likely responses and reactions will help you decide how best to handle conversations with loved ones. It is something I help clients navigate as part of their future planning, because while this sort of preparation is ostensibly about the person who puts the plans in place, the real impact will be felt down the line. It is the reason people are quite rightly keen to make the best decisions at the right time.

For advice about funeral arrangements, Wills, or any future planning, contact Dalia Sainsbury or a member of the Private Client team on 0808 256 2917.

When Wills are changed

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The Express newspaper recently highlighted the turmoil that can ensue when families are locked in a row over inheritance (see article).

The story centred around the entitlement of ‘Lord’ Brett McLean to the £300,000 home left to him by his mother, Maureen. Reports say that in 2017, Maureen and her husband Reginald (who had three children by his previous wife, before Brett was born to him and Maureen) made Mirror Wills, specifying that all four children would share the house and the rest of their joint estate equally after the parents had passed away. When Reginald died, everything transferred to Maureen, but shortly before her death, Maureen changed her Will, cutting out her stepchildren and leaving everything to her only biological son, Brett.

The judge found that Maureen had been entitled to do this. She may have been morally bound not to change her Will, but she wasn’t legally bound not to.

The case demonstrates one of the potential problems with Mirror Wills: there may be nothing to stop a surviving partner from diverting inheritance away from certain family members when their partner is no longer around to have their say.

But what are Mirror Wills? And why are they used?

As the name suggest, these are two Wills that reflect each other. Their terms are virtually the same, and so they’re most often used by couples that have the same wishes when it comes to who should inherit their assets. They’re relatively simple to put in place and one of their major benefits is that they can help reduce the amount of inheritance tax that may ultimately be payable. Assets can be transferred tax-free between married couples and between civil partners. The surviving partner will also inherit their partner’s inheritance tax allowance, and when the surviving partner dies, their allowance can be added on. This could give the couple’s children (the next in line to benefit) their parents’ combined tax allowance.

Mirror Wills can be extremely beneficial, but they carry one significant risk: the relative ease with which they may be changed, either during both partners’ lifetime, or after one has passed away. If the surviving partner goes on to form a new relationship, he or she may decide to make their new partner the beneficiary to assets originally intended for children of the first relationship; or they may decide to change their Will to disinherit other family members – stepchildren, for example.

People don’t enter into Mirror Wills thinking this might happen. The couples we advise believe wholeheartedly that they’re on the same page, that things won’t change and the wishes they’ve agreed on will be carried through. For families dealing with the aftermath of a situation that has panned out differently, things can get incredibly complicated and sometimes relationships become damaged beyond repair.

One way of potentially avoiding this problem is by creating Mutual Wills. These are also virtually identical to each other but they’re a lot more difficult to alter. The parties agree not to change the Will without the other’s consent. And when one of them dies, the Will can’t be changed at all – even if the surviving partner goes on to remarry.

Understanding your options, and putting the right measures in place, are key to having peace of mind that you’ve done everything you can to ensure your wishes are carried through. Complete certainty may be elusive when it comes to Wills, but there are certainly ways of getting as close to that as possible.

For advice about making a Will, updating a Will, or any other aspect of future planning, contact Dalia Sainsbury or a member of the Private Client team on 0808 256 2917.

How the law could help families keep more memories alive

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If I asked you to list everything you own, would you think about the camera roll on your smartphone?

People tend not to see digital assets, like photos, music playlists, social media accounts, as ‘assets’ in the usual sense. Aside from cryptocurrency, these things may not hold a recognisable financial value or represent something similarly tangible to a home, an engagement ring or money in the bank. But digital assets exist, and they outlive their creator or owner. And for loved ones left behind, digital assets maintain an important connection to the person they have lost.

As the number and types of digital assets have grown, so too have issues encountered by people who want to access them following a person’s death. For good reason, password and data protection is robust. And while it would seem sensible to allow a daughter to access the photos on her deceased mother’s phone, or a widower to get into his wife’s Facebook account, this has historically been less than straightforward. It is a situation that has increased the pain and suffering felt after a loved one’s passing. And it has led to a Private Members’ Bill that is making its way through parliament.

The Digital Devices (Access for Next of Kin) Bill would give a grieving relative the right to access their loved one’s digital data. It also places an onus on tech companies to facilitate this, by unlocking devices for which people don’t have access codes.

The Bill has some way to go before becoming law, but I very much hope that its journey leads to these significant changes being made. Clients who come to see me after the death of a loved one are often overwhelmed by the formalities that need to happen. Everything, from the clearing out of clothes from the wardrobe, to the gathering in and division of assets and liabilities, places a strain on already fragile people who are doing their best to get through the hardest of times. To then be faced by a brick wall when attempting to retrieve their loved one’s digital data has felt an unfair additional challenge.

So, the Digital Devices Bill is something I wholeheartedly support. It should remove a significant disadvantage currently suffered by families who simply want to keep memories alive and prevent digital assets from becoming lost. But there are also things that each of us can do now to make the future process of administering our estates as straightforward as possible for our loved ones.

I would urge anyone preparing for the years ahead to get specific advice on how best to deal with digital assets as part of the process of writing a Will or a Lasting Power of Attorney. (It’s important to understand, as a starting point, whether each of these assets is owned outright by you, or whether it is licensed to you, for example.) Working through this now will reap rewards, leaving fewer difficulties for loved ones to navigate in the years to come.

For advice about organising your affairs, or specifically about digital assets, contact Emma Howlett or a member of the Private Client team 0808 256 2917.

Could leaving money to charity mean less inheritance tax?

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Future planning, including writing a Will, isn’t just about deciding how assets should be allocated. It’s also about making the very best of those assets, preserving their value and minimising the tax that will be charged to an estate after their disposal.

A large part of what I do is guiding people towards the most tax-efficient arrangements. And one of the lesser-known ways of reducing tax liability is by leaving money to charity.

A charitable gift doesn’t attract inheritance tax (IHT). In addition, this type of gift could actually lower the IHT rate that applies to the remainder of an estate. Estates valued at £325,000 or more usually attract IHT at 40%. However, a charitable gift may reduce that to 36%. To qualify, the gift needs to be worth at least 10% of the net value of the estate. This takes some careful calculating and, as a Wills and inheritance specialist, this is something I help clients plan.

Precision around this is really important if the terms of the Will are to be carried out in the way intended, and if they’re to have the desired effect.  First of all, you need to make sure your proposed charitable gift would qualify. And then you need to think about how you will frame that gift. You might want to leave money to a particular charity for a specific purpose, such as services in your local area, or care of certain people or animals. You might want to consider a revisionary gift, which means the charity is second-in-line to receive it, after a family member or friend. (That could work in the case of a property or an investment fund, for example.) These are just some of the possibilities that could provide the dual advantage of putting your assets to good use and lowering the tax bill that will be payable on what’s left.

Charitable gifts are not without their potential difficulties, however. People are not always accepting of their relative’s decision to divert inheritance away from the family. They might treat the decision as having been made ‘in the heat of a sibling rift’, or without full appreciation of the consequences. Relatives might not understand that it was done in a calculated way to bring about IHT savings. The scale of these problems obviously depends on the circumstances – not least the value of the charitable gift. It can also depend on the manner in which family members discover the arrangement.

I encourage clients to talk to those close to them about their plans, including when those plans might not be quite as expected. The chance to explain to loved ones why you have arranged things in the way you have can be so important to them respecting your wishes. Ultimately, this can lead to fewer issues in families later on.

To speak to us about making or updating a Will, or about any other aspect of future planning, contact Emma Howlett or a member of the Private Client team on 0808 256 2917

Video-witnessed Wills legalisation extended

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It’s been done on driveways, over garden fences, on car windscreens. Covid has taught us many things, including that when a Will needs to be witnessed, a way will be found.

In January this year, the government announced that it would be extending the measures that gave some people who were making Wills a far more straightforward way of having them witnessed. The introduction of video-witnessing in September 2020 was set to apply to Wills made between 31 January 2020 and 31 January 2022. A further two years has now been added to that timeframe, meaning vulnerable people (including people who are forced to isolate because of Covid) in England and Wales will, as a last resort, be able to have their Will witnessed by video-link up until 2024.

It’s a move we welcome. While the number of our clients who have been forced to use video-link is relatively small, the fact that this is in place if it’s needed is hugely reassuring. Will-witnessing usually requires two witnesses to be physically present in the same space as the person making the Will. For those who cannot come into close contact with others while Covid looms, the ability to carry out this essential formality via live video (subject to safeguards that prevent undue influence and fraud) means there are no delays. A Will can be prepared by a solicitor and the witnessing can quickly follow. And in some cases, where time is of the essence, this could mean the difference between someone dying with a Will in place and without.

The main benefit of making a Will is certainty that assets will be dealt with as you’d like them to be after you have passed away. The alternative – intestacy – can lead to very different outcomes. These can include assets going to the ‘wrong’ people, and loved ones finding themselves harder hit by tax liabilities that come from an estate that had not been arranged before its owner’s death.

So the case for making a Will is strong. And it’s also so important to keep your Will up-to-date, as changed family and financial circumstances can mean Wills drafted many years ago are either no longer appropriate or don’t lead to the most favourable position for family members. Extending the video-link witnessing provision is (alongside other available online facilities) another step in the right direction towards removing barriers for people keen to get their affairs in order.

But will video-links will remain a possibility beyond 2024, or will they become filed under ‘Covid-19’? We’ll have to wait and see.

To speak to us about making or updating a Will, or about any other aspect of future planning, contact Emma Howlett or a member of the Private Client team on 0808 256 2917