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About Abbey Lane Wills & Estate Planning

Let one of our trained advisers visit you at home to discuss your requirements in relation to:

Wills

We all know we should have one, but often do not understand why.

Making a Will is the only way to ensure that your wishes are carried out after your death. If you have not made a valid Will, your property will pass according to the Law of Intestacy. This may not be what you would have wished and would result in taking your estate longer to finalise than if you had made a Will. During this time your beneficiaries may not be able to draw any money from your estate and can mean arguments and distress for relatives.

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Lasting Powers of Attorney

Most of us will be fortunate enough to live long lives, but we may not always be able to manage our own affairs. If however you were to suffer significant physical or mental incapacity a Lasting Power of Attorney could make your life much easier and less stressful for you and your loved ones, as well as protecting your interests. A Lasting Power of Attorney is a little like an insurance policy: you hope that you will never need it but if you do - it’s invaluable.

There are two types available a Property and Affairs LPA allows your Attorney to make decisions on your behalf about your property and affairs, including paying your bills, collecting your income and benefits or selling your house. The second is a Personal Welfare LPA which allows your Attorney to make decisions on your behalf about your personal welfare, and can include whether to give or refuse consent to medical treatment on your behalf and deciding where you live.

What does the Home Protection Scheme Involve

Anecdotal evidence suggests that thousands of homes are sold each year to cover the owner’s care fees. Parents are also seeing nest eggs built up as intended inheritances for their children decimated over short periods once in care. With advance planning this need not be the case as there are ways to protect the family home for the next generation.

If you need to go into care both income and capital resources are assessed, which includes any property owned and if you have resources above £23,000 then no contribution will be made by the local authority. This could be resolved by placing your home into Trust

Under the terms of the trust the person creating the trust (the settler) are also a beneficiary so that, once the trust is created, they may continue to live in their home for the rest of their life/lives or until they decide that residence is no longer required or not appropriate.

The Simplicity of the Home Protection Scheme

Despite the fact that the trust now owns their home they still retain the benefits and flexibility of home ownership. For example, if in the future they wish to move to a smaller property they retain all rights of residence in the new property.

The Home Protection Plan offers the significant benefit that the home will no longer be subject to probate on death. The home can be sold or transferred by the trustees immediately after death with no probate formalities at all.

This is potentially a significant advantage as in some cases, depending upon the other assets of the estate; it may mean that probate can potentially be dispensed with completely, with consequent time and cost savings.

Protective Property Trust – Severance of Tenancy

Joint Ownership

Where a property is to be owned by more than one person there are two ways in which the joint ownership may be recorded. To enable us to prepare the necessary legal documentation we require the client’s instructions as to how they wish to record their joint ownership.

Joint Tenants

If property is held as joint tenants each co-owner owns an equal share in the whole of the property.  In practical terms this means that if one owner dies the property automatically passes to the survivor irrespective of any provision made in the deceased owner's Will.  This method is commonly, (but not exclusively), used by married couples as they would want the property to pass to the surviving spouse on death.

If the clients do not want their co-owner to take their share on death then they MUST hold the property as tenants in common and make a Will. Another factor to bear in mind is that if they are an unmarried couple or friends who own a property as joint tenants then the law states that they hold the property in equal shares and as such the net proceeds of sale will be split EQUALLY irrespective of how much they invested when they purchased the property or have invested subsequently.

If they contribute unequal amounts to the property and they want to protect their respective shares on any subsequent breakdown of the relationship then they MUST hold the property as tenants in common.

Tenants in Common

If the property is held as tenants in common each owner has a specific share in the property.  On the death of either owner the deceased's share of the property does NOT automatically pass to the survivor.  The share of the deceased owner will pass under the terms of his or her Will (or in accordance with the Intestacy Rules if a valid Will is not in existence).

Tenants in common is particularly advisable in a number of situations:

The shares in the property need not necessarily be equal.  For example, one party may have contributed more towards the deposit than the other or they may be paying the mortgage in unequal shares.  It is possible to stipulate the ratio of the shares e.g. 50:50, 75:25 or in any other combination of shares.

Most of the situations above envisage a property being owned in two names but the same principles apply if the property is owned in multiple names.

If the clients decide they want to own the property as Tenants in Common, we would advise they have a Declaration of Trust drawn up by us.  This will stipulate the shares in which they would own the property and also sets out a procedure for dealing with the situation if one person wanted to sell his or her share in the property.  A Declaration of Trust will certainly be required should they wish to regulate the way in which the equity in the property is dealt with on a future disposal (be that a mortgage, sale or on death). It is essential that co-habiting partners contemplate the unthinkable at this stage, namely that their relationship will break down and that they will fall out over what they do, and do not, own.

If they hold a property as Tenants in Common it is usually essential that they make Wills to deal with their share of the property upon death. They would need to possibly create a life interest, especially in the case of a husband and wife to ensure that they do not lose the right to live there in the event of one partner pre-deceases the other or should one of them need to go into care. In other cases i.e. friends sharing a property, a right to reside may be more appropriate where conditions be applied to the time they are allowed to remain in the property after your death

The FCA does not regulate Will Writing, Trusts, and some forms of Estate Planning.
For Will Writing and Estate Planning we act as introducers only.