What is a Discretionary Trust?
When people are planning for their future, most have two objectives, to protect their assets and provide for their loved ones. A Discretionary Trust is a legal structure that can offer both. It allows you to safeguard your wealth, maintain some control, and ensure your beneficiaries are looked after. It also provides the flexibility to deal with changing circumstances over the passage of time and a number of different scenarios that may arise.
What Is a Discretionary Trust?
A Discretionary Trust is a Trust Deed that can be created during your lifetime, or upon your death by the terms of your Will. The structure of a Discretionary Trust enables you, as the person putting your assets or money into the trust (known as the Settlor), to give those assets to a group of people chosen by you (the Trustees) to look after for the people you want to benefit from the trust (the Beneficiaries).
As the Settlor, you may appoint yourself as a Trustee. If you would like to keep control of how the assets in the Trust are used, then you would be able to do so by being a Trustee. Whilst extracting the asset from your estate and allowing your beneficiaries to enjoy it, jointly with the other Trustees you still retain decision making power until transferred to the beneficiaries absolutely.
The Trust Deed will name the group of people who you want to benefit from those assets (the Beneficiaries). It will be at the discretion of the Trustees to decide which of the Beneficiaries to pass assets on to, when, and how much they will receive. The Trustees have the authority to decide how income and capital from the trust should be distributed among the beneficiaries.
You can leave detailed instructions and directions to the Trustees as to how you would like them to exercise their discretion by preparing a Letter of Wishes to accompany the Trust Deed. Although the Letter of wishes is not legally binding on the Trustees, they will often take them into consideration and follow your wishes as closely as possible, whilst considering other factors. This flexibility allows the Trustees to respond to changing family, financial, or tax circumstances.
Who Is Involved in a Discretionary Trust?
- Settlor: The individual who sets up the trust and transfers assets into it.
- Trustees: The people appointed to manage the trust assets in line with the trust deed.
- Beneficiaries: The individuals or groups who may benefit from the trust.
What are the advantages of a Discretionary Trust?
Asset Protection
Because of its discretionary nature, with the decision as to who benefits, when and by how much resting with the Trustees, none of the Beneficiaries are “entitled” to any of the trust fund. Therefore, assets held in a Discretionary Trust are generally protected from claims in situations like divorce, bankruptcy, or litigation. If a beneficiary is going through a divorce, an appropriate Discretionary Trust can ensure that assets from your estate won’t pass to their former spouse. Similarly, if a beneficiary is bankrupt, or in danger of becoming bankrupt, there is a real risk that with no Discretionary Trust in place, any gift from your estate could be paid directly to the Beneficiary’s creditors.
Since beneficiaries have no fixed entitlement, their creditors usually cannot access trust assets.
Estate Planning Flexibility
A Discretionary Trust helps you control how family wealth is used and distributed, even across generations. This can included business interests and family companies. It can provide for children or dependants who are not yet financially mature or have special care needs. It can provide for specific scenarios arising and changing circumstances.
If a beneficiary has a disability or is vulnerable in some way, or receives other state benefits, any money paid directly from your estate could reduce their entitlement to state support or render them ineligible completely. A trust for a vulnerable person can benefit from favourable tax treatment.
Potential Tax Planning Benefits
When used appropriately, Discretionary Trusts can offer income tax saving opportunities or structure estate transfers efficiently. However, tax treatment varies, so professional tax advice is essential.
Scope and Continuity
A Discretionary Trust can be set up during your lifetime and continue to run smoothly after your death, ensuring uninterrupted management of family wealth.
Do I need to register my Trust with HMRC?
Most trusts in the UK must be registered with HMRC’s Trust Registration Service, but certain trusts are exempt, such as those imposed by a court or created through legislation. Trustees are legally responsible for ensuring registration where required. Failing to do so can lead to penalties, so it is important to confirm your obligations with a solicitor or a tax adviser. Read more…
Tax Opportunities and Obligations of a Discretionary Trust
Income Tax
Trustees are responsible for paying Income Tax on income received by the Trust. The Trust will pay the higher rate of Income Tax. Any gross income above £500 (being the allowance for Trusts) is taxable at the current trust tax rate of 45%. Dividend income is charged at a rate of 39.35%. If the Settlor has more than one Discretionary Trust, the £500 tax free limit is divided by the number of trusts.
When Trustees pay income to a beneficiary who is taxed at less than 45% the beneficiary can reclaim the tax so that the eventual tax burden does not exceed what it would have been if the trust assets were their own.
Discretionary Trusts can be a useful tool for income tax planning, depending on the circumstances of the beneficiary.
Capital Gains Tax
This is a tax on the profit (gain) when an asset that has increased in value is taken out of or put into the Trust.
If assets are put into the Trust, the tax is paid by the person selling or transferring the asset.
If assets are taken out of the trust the Trustees usually have to pay the tax is they sell or transfer assets on behalf of the beneficiaries.
The rate of Capital Gains Tax is payable at 24% if the trust’s annual total taxable gain is greater than its tax-free allowance (£1,500 or £3,000 if the beneficiary is vulnerable. If there is more than one beneficiary, the higher allowance may apply even if only one of them is vulnerable.
Inheritance Tax
Inheritance Tax may be payable on a person’s estate when they die. Inheritance Tax can also apply when you are alive if you transfer some of your estate such as property, money, investments etc into a trust.
The main situations when Inheritance Tax is due are:
- When assets are transferred into a trust, if the value of the assets put into the trust by the settlor exceeds the £325,000 nil rate band. Where the asset qualifies for relief such as Business Property Relief then it may be that no IHT arises on the initial transfer.
- When a trust reaches it’s 10-year anniversary of being set up (10-yearly Inheritance Tax payments). This is currently up to 6%, payable on the amount by which the value of the trust fund exceeds the available nil rate band.
- When assets are transferred out of a trust, known as exit charges. This is when capital or assets are distributed from the trust to a beneficiary. These are generally a proportion of the 6% charge, depending on the time passed since the last 10-year charge.
- When somebody dies and a trust is involved.
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What are the Duties of Trustees in a Discretionary Trust?
Trustees of Trusts should be aware of the need to comply with the HM Revenue & Customs Trust Registration Service. This is a central register that HMRC maintains of most trust arrangements, particularly express trusts (i.e. those created intentionally by the settlor). Registration is often required even if the trust has no tax to pay at the time it is created.
Trustees also have administrative obligations and duties such as keeping accounts, filing Trust Tax Returns, and ensuring the payment of tax where applicable.
Conclusion
There are a range of situations where a Discretionary Trust could provide a flexible solution for protecting your estate and your family’s future. You do not have to be wealthy to find that a Discretionary Trust can offer a flexible, effective way of passing assets onto your chosen beneficiaries.
It is important to consider who you would appoint as Trustees. They should be trustworthy, impartial where possible and financially competent.
It is important to ensure clarity as to the terms of the Trust including its powers, intent and scope.
It important to recognise and understand compliance obligations and the tax treatment associated with Discretionary Trusts, and to consider whether other planning options would be more tax effective or appropriate for your individual situation.
The key issues is to recognise that bespoke advice is needed and to seek both expert legal and financial advice as early as possible.
Contact our Discretionary Trusts Solicitors for Advice
Here at Thornton Jones, we can provide bespoke advice tailored to your circumstances.
Our experienced team will advise you on whether a Discretionary Trust suits your circumstances, or perhaps another kind of Trust, and if appropriate draft a bespoke Trust Deed to reflect your intentions, assist Trustees with administration and compliance and coordinate with financial and tax advisors where appropriate.
If you need assistance or advice you can contact our team today on 01924 290 029 or contact us using our online enquiry form.
Discretionary Trust Solicitors FAQs
Capital Gains Tax (CGT) is a tax on the profit you make when you sell or dispose of an asset that has increased in value, such as property, shares, or other investments. It is only charged on the gain, not the total sale amount, and certain exemptions, like your annual CGT allowance, may apply.
Inheritance Tax (IHT) is a tax on the estate (property, money, and possessions) of someone who has passed away. In England, it is typically charged on estates valued above a certain threshold, with exemptions available for gifts, charities, and transfers between spouses or civil partners.
Income Tax is a tax on money you earn, including wages, pensions, self-employed profits, and some savings or investment income. The rate you pay depends on your total income and the applicable tax bands, with personal allowances and reliefs reducing the amount you owe.
The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
Contact our Discretionary Trust Solicitors in Garforth, Leeds
Thornton Jones Solicitors
Westbourne House
99 Lidgett Lane
Garforth
Leeds
LS25 1LJ
Tel: 0113 246 4423
Fax: 0113 831 4929
Email: enquiries@thorntonjones.co.uk
Contact our Discretionary Trust Solicitors in Wakefield
Thornton Jones Solicitors
Bank House
1 Burton Street
Wakefield
WF1 2GF
Tel: 01924 290029
Fax: 01924 290240
Email: enquiries@thorntonjones.co.uk
Contact our Discretionary Trust Solicitors in Ossett, Wakefield
Thornton Jones Solicitors
25 Bank Street
Ossett
WF5 8PS
Tel: 01924 586466
Fax: 01924 290240
Email: enquiries@thorntonjones.co.uk
Contact our Discretionary Trust Solicitors in Sherburn in Elmet, Leeds
Thornton Jones Solicitors
6 Finkle Hill
Sherburn in Elmet
Leeds
LS25 6EA
Tel: 01977 350500
Fax: 0113 831 4929
Email: enquiries@thorntonjones.co.uk
Lasting Powers of Attorney: Protection You Hope You’ll Never Need
Most of us are happy to take out insurance. We insure our homes, our cars, even our holidays. Why? Because if something goes wrong, we want to know we’re protected. A Lasting Power of Attorney (LPA) works in the same way. You may never need it, but if you do, it can make all the difference to you and your loved ones.
You must remember that you can only make an LPA while you still have mental capacity. If illness, accident, or age takes that away, it’s too late. Just like with insurance, you don’t wait until the disaster has happened before putting cover in place.
What is a Lasting Powers of Attorney?
A lasting Powers of Attorney (often abbreviated to an LPA) is a legal document that lets you choose one or more people you trust to make decisions for you if, one day, you can’t make them yourself. There are two types and you should think of them as two separate insurance policies: one for your finances, one for your wellbeing. Together, they give you complete protection.
Property and Financial Affairs LPA
A Property and Financial Affairs LPA covers money matters like paying bills, managing bank accounts, pensions, and even selling your home if necessary.
Health and Welfare LPA
A Health and Welfare LPA covers personal matters like where you live, your daily care, and medical treatment, including life-sustaining treatment.
5 Benefits of a Lasting Power of Attorney
Whilst a Will can protect your family after you have passed, what about protecting yourself and your family should you find yourself unable to care for your own matters? In this blog by Liz Fyfe, she outlines five key benefits of having a lasting Powers of Attorney in place. Read more…
Why do Lasting Powers of Attorney Matter?
Without an LPA in place, your family doesn’t automatically have the right to step in and help if you lose capacity. Instead, they may need to apply to the Court of Protection – a process that can be long, stressful, and expensive.
By setting up LPAs in advance, you:
- Choose who makes decisions for you, rather than leaving it to the courts.
- Save your family unnecessary stress and costs.
- Have peace of mind that everything is taken care of.
Why are Both Types of LPA Important?
Many people arrange a Property and Financial Affairs LPA but overlook the Health and Welfare LPA. But health decisions are often the hardest and most emotional ones. By having both, you know you’re fully protected for your money and your care.
You may never need to rely on your LPAs, just like you may never claim on your home insurance. But if you do, you’ll be so glad they’re there.
Setting them up now is one way of avoiding extra stress and making things easier for your family and loved ones should you become incapable of managing matters for yourself at any stage in the future.
Find out more about the Six Big Questions Commonly Asked on Mental Capacity and Powers of Attorney in this article by Liz Fyfe. Read more…
Contact our Wills and Probate Solicitors in Yorkshire
If you would like to know more about Lasting Powers of Attorney or perhaps you’d like to book an appointment please get in touch and our skilled and experienced Lasting Powers of Attorney solicitors will guide you through the process.
Speak to our expert Lasting Powers of Attorney solicitors in Wakefield, Ossett, Garforth, and Sherburn in Elmet, Yorkshire today by calling 01924 290 029 or ask a question using our online enquiry form.
Lasting Powers of Attorney FAQs
An attorney can be anyone who is aged 18 or over. Usually the chosen attorney will be a spouse, a partner, a family member or a close friend. Some people choose to nominate a professional attorney, who could be a solicitor, an accountant or other relevant professional, giving you the benefit of their skills and judgement and impartiality.
It’s important to know that an attorney cannot be bankrupt if they are appointed as an attorney for property and financial affairs.
Losing mental capacity means a person can no longer make their own decisions because they are unable to understand, remember, weigh up, or communicate information related to that decision. This can be a result of conditions like severe dementia, a brain injury, or a stroke, and it means a person is legally unable to make choices about their finances, health, or welfare. Without a Lasting Powers of Attorney (LPA), a court must appoint a deputy, a process that is costly and removes the individual’s ability to choose who will make decisions on their behalf.
To create a Lasting Power of Attorney, you will need to:
• Choose an attorney or attorneys to act for you
• Fill out the appropriate form (or have your solicitor do this for you)
• Register the LPA with the Office of the Public Guardian
Creating an LPA can take up to around 3 months and it is strongly recommended to have an experienced solicitor help you with the process to ensure all of the relevant issues are correctly considered and accounted for.
A Property and Financial Affairs LPA allows someone you trust to manage your money, property, and financial matters, such as paying bills or selling your home. A Health and Welfare LPA lets them make decisions about your medical care, living arrangements, and daily routine, but only if you lose mental capacity.
Sherburn Office
Call our Lasting Powers of Attorney Solicitors in Sherburn in Elmet on
Ossett Office
Call our Lasting Powers of Attorney Solicitors in Ossett, Wakefield on
The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
Going on Holiday? Make Sure Your Will Is Up to Date
When you are planning a holiday, you are probably thinking about hot weather, restaurants, beautiful cities, and not your financial affairs. Holidays, sadly, can be risky and unpredictable which no one wants to talk about. Our advice is to make sure your will is up to date before you travel.
When should I update my will?
Reviewing and/or updating your Will before you go on holiday is a practical step in responsible life planning due to the risk that any type of travelling poses.
A holiday, whether that is a staycation in the UK or abroad, is about enjoying yourself and taking your mind off day-to-day life. Knowing all your admin tasks and financial affairs are up to date before you go away will provide you with peace of mind without any lingering worries. Life is about enjoying yourself but also about planning wisely, which includes your Will and estate planning.
Travel increases your exposure to risk accidents and illness. While this is unlikely, it is better to be prepared. A clear, updated Will reduces confusion and emotional stress for your family if something does happen.
If you are going on holiday and wish to review and update your Will then contact us today. Our expert Private Client solicitors are on hand to help ensure your Will is up to date and properly reflects your wishes. You can find out more about our Wills, Lasting Powers of Attorney, and Probate services here.
Who should make a Will?
Making a Will is not just for those who retire. Anyone over the age of 18 needs to make a Will, especially if children are involved and/or a property, savings and pets.
Here is a Will Checklist before you go on Holiday:
- Check Your Will – Is it still relevant? Has there been any recent changes in relationship (marriages, divorces, new children, new grandchildren)? Are there any new assets, such as property, savings, investments? Do your gifts in your Will need updating such as any charity gifts?
- Appoint guardians – If you have children under 18, ensure legal guardians are named in your Will.
- List your assets – Your Will should reflect your current property, current bank accounts and investments.
- Talk to your loved ones –Let someone know where your Will is kept and who to contact in case of an emergency.
- Update other documents – It is also important to put Lasting Powers of Attorney in place and ensure any pension/life insurance nominations are up to date.
Any type of travelling is a great reminder to do adulting tasks that often get delayed. Before you pack your suitcase, update your Will, and then you can enjoy making memories with your family and friends.
Make sure your Will is up to date today. Contact our specialist Wills & Probate solicitors in Yorkshire
If you are considering reviewing or updating your Will before going on holiday, our experienced Wills and probate team can guide you through the process. We provide clear advice to ensure your wishes are legally protected and your loved ones are looked after.
Speak to our expert residential conveyancing solicitors in Wakefield, Ossett, Garforth, and Sherburn in Elmet, Yorkshire today by calling 01924 290 029 or ask a question using our online enquiry form.
The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
Make A Will Frequently Asked Questions
Almost every adult should consider making a Will, it is not just for those of a certain age. It is especially important for certain groups as follows:
• If you have children. You can name a legal guardian for your children. Without a Will, the court decides who looks after them if there is no one with parental responsibility.
• You own a property or assets. If you own any type of asset, a Will allows you to state clearly who you wish these assets to pass to upon your death.
• Married or in a Civil Partnership or long term Partnership. A Will can ensure your spouse or partner inherits according to your wishes. Please note, if you are unmarried and do not have a Will, your partner will not benefit under the intestacy rules.
If you are over the age of 18 and have mental capacity you should make a Will as soon as you are able to but certainly if one of the following apply:
• You have children
• You are in a relationship, married or divorced
• You have a property and/or savings
• If an individual dies without a Will, they die intestate, meaning who their estate passes to is decided by the intestacy rules. A Will lets you choose who inherits your property, money and belongings, you can leave specific gifts to certain individuals or charities and it prevents certain individuals receiving your assets.
• A Will lets you choose who deals with your estate, known as your Executors. It allows you to appoint individual/s you trust.
• A clear Will reduces confusion, legal issues and misunderstandings after your death
• Having a Will makes things easier for your loved ones
• With a valid Will, the process of applying for the Grant of Probate is generally quicker and easier.
• Making a Will gives you the peace of mind that your wishes will be honoured and your loved ones will be taken care of during a difficult time
Will comes into play at the date someone passes away, so is there anything that can be put in place during lifetime? Yes – Lasting Powers of Attorney (“LPA”). An LPA lets you choose who will make decisions on your behalf if you lose mental capacity to do so during your lifetime. If you do not have an LPA in place and lose capacity, no one can legally act for you without going through a long and costly court process, known as a deputyship application.
You can appoint attorneys who you know and trust, such as family members, close friends or professionals.
Many people assume LPAs are only for the elderly, but they are just as important for:
1. Younger adults at risk of accidents, brain injury or mental illness
2. Those undergoing medical treatment
Once the LPAs are registered with the Office of the Public Guardian (“OPG”), your LPAs gives the legal authority to your chosen attorneys to act on your behalf. It is a recognised document by banks, medical institutions and government bodies. Please note, that LPAs cannot be used until they have been registered with the OPG. The OPG are advising their timescales to be approximately 4 months for registration.
Marriage Maths: Should You Get Married to Save Inheritance Tax?
Although marriage is often seen as a personal commitment, it can also be a practical financial arrangement. This is especially true when considering inheritance tax.
The legal distinction between married and unmarried couples has significant consequences when it comes to estate planning. This article examines whether entering into a marriage or civil partnership could be a strategic step to mitigate inheritance tax liabilities and safeguard assets for future generations.
What is Inheritance Tax?
Inheritance tax is a tax on the estate, which includes property, money, and possessions, of someone who has died. In the UK, it is usually charged at 40% on the estate’s value above the £325,000 threshold. This threshold is called the nil-rate band. An additional allowance of £175,000 may apply if you leave your main residence to direct descendants. This is known as the Main Residence Nil Rate Band and applies only if certain conditions are met.
Inheritance Tax for Married Couples and Civil Partners
Everything you leave to your spouse has the benefit of 100% spousal exemption from paying inheritance tax, regardless of value.
Any unused tax free allowance can be transferred to your spouse when you die – therefore if you leave everything to each other when you die on second death you potentially have doubled the threshold to £650,000.
When leaving the family home to children or grandchildren on second death, a married couple has a combined main residence nil-rate band of £350,000, which provides for a total potential tax-free estate of up to £1 million.
Inheritance Tax for Cohabiting Couples
If you’re in a long-term relationship, sharing a home, finances, and possibly raising children together, you might assume your legal and financial standing mirrors that of a married couple. When it comes to inheritance tax, cohabiting couples are treated very differently, and often to their detriment.
Unlike married couples, your partner may not receive anything automatically from your estate unless you name them explicitly in your Will. Even married couples are advised to make Wills. This is because there is no guarantee that a person’s entire estate passes to their spouse. It depends on family circumstances and the value of the estate.
Even if you have completed a Will and the surviving partner inherits everything the main residence nil rate band isn’t then available on their death This means they would be charged inheritance tax on anything above threshold.
Without marriage, the surviving partner can’t inherit unused tax-free allowances, unlike spouses.
That means if you leave your entire estate to your partner and you’re not married, or in a civil partnership, there could be a hefty tax bill. This could potentially mean assets like the family home might have to be sold to pay it.
In other words, married couples can pass on wealth much more efficiently as the exemptions available to them do not apply to long-term cohabiting partners, no matter how committed or interdependent they are.
If I am excluded from a Will, what can a Court award me under the Inheritance (Provision for Family and Dependants) Act 1975 Act?
A blog by Stacie Hurt.
Once the Court has considered all the various relevant factors to an applicant’s 1975 Act claim, the Court could conclude that they believe that the Will or Intestacy Rules does make “reasonable financial provision” for the applicant, and the applicant could lose their claim (and potentially be liable for the other sides costs, as well as their own).
Is Marriage a Smart Financial Strategy?
If your main concern is safeguarding your estate and reducing tax liabilities for your partner and children, marriage may offer significant financial protection. Many families now consider asset protection as part of their estate planning. Including common methods, such as trusts relating to your property, within your will can create tax traps for unmarried couples. This means some options may not be available to you. As a result, your estate might lack the protection you want when balancing provision for a partner and the next generation.
However, Marriage is a legal contract with implications for property, debt, and future inheritance. If the relationship breaks down, divorce can be financially and emotionally draining and assets are more difficult to separate. Solicitors specialising in divorce and those specialising in probate matters will have very different and often opposing views on the merits of marriage.
It may also feel uncomfortable/unromantic marrying primarily for tax reasons.
Inheritance Tax FAQs
Yes. Marriage allows spouses to transfer any unused inheritance tax allowances to each other upon death. This means the surviving spouse can potentially inherit up to twice the individual tax-free threshold before inheritance tax applies, significantly reducing the overall tax liability on the estate.
Civil partners receive the same inheritance tax benefits as married couples. They benefit from a 100% exemption on assets passed between partners and can transfer any unused nil-rate band allowance to the surviving partner, unlike unmarried couples who don’t receive these protections under current law.
Cohabiting couples without marriage or civil partnership do not benefit from spousal exemptions or the ability to transfer unused allowances. Therefore, they could face inheritance tax bills and the death of the first of them, which may result in assets needing to be sold to cover the tax a consideration not faced by married couples.
The nil-rate band is the amount—currently £325,000—that an individual can pass on without paying inheritance tax. Married couples can combine their individual nil-rate bands, meaning a combined threshold of up to £650,000 can be passed on tax-free, helping to protect more of their estate from inheritance tax.
Yes. The Main Residence Nil Rate Band offers an additional allowance, currently up to £175,000, when a main home is left to direct descendants such as children or grandchildren. This allowance is added to the standard nil-rate band, further reducing the taxable value of the estate.
Should I buy a hat?
In conclusion, getting married for Inheritance Tax savings can be worth it if it aligns with your personal and legal goals. For committed couples who already share their lives and assets it can provide protection and peace of mind. But marriage is more than a tax decision. Before making this decision discuss this with your advisors (both legal and financial) and ultimately decide if it works for you on a personal level.
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Need help making a Will?
If you are looking to make a Will, or perhaps you already have a Will and wish to update it, then we can help. Our team of skilled, experienced, and regulated Solicitors can guide you through the process ensuring that your wishes are properly documented. For more information and to make an appointment just contact us at any of our offices.
The content of this blog post is for information only. It does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
The Wanted’s Max George’s “Panic Will” – Why Writing a Will in a Hurry Could Cause You Problems
Recently, there has been a lot of news coverage on the story that Max George (who is most commonly known for being a member of the boyband The Wanted), wrote a Will on his mobile phone moments before undergoing heart surgery. While this action may have been made in a moment of panic or fear, it raises an important legal question: Is a hastily written Will like Max’s legally valid?
At first glance, writing a Will on a mobile phone may seem like a practical and quick solution especially in difficult circumstances. After all, we live in a digital age where we can complete almost any task via our phones in an instant. However, under the Law of England and Wales there are validity rules in place that govern when a Will is legally binding, and unfortunately, more often than not those written hastily without proper legal consideration are likely to fall short of these validity requirements.
A valid Will must be in writing and signed in the presence of two independent witnesses who must also sign the document in the presence of the person who is making the Will (also known as the testator).
The Risks of a Panic Will
While it’s understandable that in moments of uncertainty, such as before an operation, individuals may feel the need to make quick decisions about their estate, the reality is that a “panic Will” can cause more harm than good. A hastily written document, whether on a mobile phone, napkin, or piece of scrap paper, is prone to errors or misunderstandings about the testator’s true wishes and the legal principles that surround Will preparation.
In Max George’s case, it’s crucial to note that a note typed on your phone (or any informal record) is unlikely to meet the formal requirements of a valid Will.
BLOG: What Happens if my Will is Found to be Invalid
Making a Will is one of those tasks that often gets overlooked, however the importance of having a Will is clear. Without a Will, your assets will be distributed following the rules of intestacy which might mean that your assets are passed to someone who you may not have chosen. However, whilst having a Will is important, having a valid Will is paramount!
A Blog by Joanne Gibson
What Happens If a Will Is Invalid?
If a Will does not meet the legal requirements, it will not be valid. In such cases, the estate may be dealt with according to the Intestacy Rules, where the law will determine who inherits from your estate, when you die without a valid Will in place. The rules may not reflect the individual’s wishes, as the intestacy rules do not make provision for unmarried partners or step-children and potentially other important people in a testator’s life.
Additionally, if there is any dispute over the validity of a “panic Will,” it could result in costly and lengthy legal battles for the estate and beneficiaries.
What Can You Do to Avoid a “Panic Will”?
To ensure that your wishes are fully respected, it’s always best to consult with a qualified solicitor when drafting your Will. A solicitor will ensure that all legal requirements are met, your testamentary wishes are discussed, and advice given to your specific circumstances and that your Will is properly executed.
As a team at Thornton Jones, we are always happy to discuss with our clients how we can alleviate any immediate worry or concerns by attending on clients not just at our offices but also in their homes or even at their hospital bedsides to make a Will. Especially if it needs to be done urgently, if sadly, a client is close to passing away. Putting in place a Will is such an important job at a critically important time. So if you ever find yourself in a situation where you need to update your Will in a hurry (such as before an operation), it’s crucial that you don’t rely on informal methods like mobile phones or handwritten notes without witnesses. Instead, try to contact a solicitor or legal advisor who can help you make sure that any Will or amendments to an existing Will are legally sound and don’t fall short of the validity requirements.
Conclusion
Max George’s decision to write a Will on his mobile phone in a moment of stress highlights a growing trend where people look for quick fixes for complex legal issues. However, it’s important to remember that Wills are not something to be rushed without professional legal advice.
A legally valid Will is so much more than a document, it is peace of mind.
The Rules of Intestacy determine how a person’s estate is distributed if they die without a valid will. Under these rules, only spouses, civil partners, and close relatives (children, grandchildren, parents, and siblings) can inherit. Unmarried partners and friends are not entitled to anything. The specific distribution depends on the size of the estate and the surviving relatives.
A will must be witnessed by two independent adults who are present when the will is signed. Witnesses must not be beneficiaries or the spouse/civil partner of a beneficiary; otherwise, they forfeit their inheritance under the will. The witnesses must be over 18 and of sound mind.
To avoid mistakes, it’s advisable to seek professional legal advice when drafting your Will. A solicitor experienced in Will writing can ensure the document is legally sound and clearly expresses your intentions. They will ensure the necessary formalities are met, such as proper witnessing, and that the language used is clear and unambiguous. Additionally, regular reviews and updates of your Will are important, especially when there are significant life changes, such as marriage, divorce, or the birth of children.
Want to make a Will? Call us today.
Our team at Thornton Jones is here to assist. If you need help and advice with making or updating a Will then call us today.
☎️ Call our Wakefield office on 01924 290 029
☎️ Call our Garforth office on 0113 246 4423
☎️ Call our Sherburn in Elmet office on 01977 350 500
☎️ Call our Ossett office on 01924 586 466
The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
Yorkshire Law Firm Warns: Be careful where you get your legal advice from
We have had a flurry of clients recently, who have been given “advice” about Wills, Trusts and Probate by individuals who are not solicitors or indeed any other qualified professional with knowledge and experience of the law around these important issues.
This leads us to ask, where are you getting your information from about these very important matters? From social media? From friends? From your bank? If the advice you receive is from anyone other than a specialist in Wills and Probate Law, then we advise you to be very cautious about following such advice. It may not be correct, or could be incomplete.
Who can best advise me on Wills, Trusts, and Probate matters?
Anyone can advise you, and you can of course get your information from whatever source you choose. However, if the person you are taking advice from is not a qualified solicitor, or other qualified legal professional with experience of Wills and Probate, then you should ask yourself why are they the person you have chosen to seek or accept advice from as opposed to a professional.
Where have they got their information from? Did they get the information from a reliable source with sufficient expertise?
Two recent examples of clients being incorrectly told they either do, or do not, need Wills are:
EXAMPLE 1: Single man, one sister, two nieces and a nephew. His friends told him, very authoritatively, that he needed a Will because he wasn’t married and didn’t have children so the government would get his estate when he died.
This advice is incorrect. Depending on who is alive at the time of his death, his estate will go either to his sister or his nieces and nephew, or their children. The list of people who are entitled to inherit someone’s estate when they die without a Will is a long one and the estate only goes to the Crown in very rare circumstances.
EXAMPLE 2: Couple, with children and grandchildren. Told by an employee at their bank that they don’t need Wills because their accounts at that bank are joint accounts.
Whilst it may be the case that these joint bank accounts will pass to the survivor on the first death, this “advice” does not consider any of the couple’s other assets, Inheritance Tax issues, or what they want to happen on the second death. It may be that after one of them dies, the survivor then makes a Will – but what if they have lost capacity in the meantime? The employee at the bank has no legal qualifications or experience and should not be advising clients on legal matters.
In both cases, the information that the clients have been given was incorrect or incomplete and so they were proceeding on the basis of the wrong advice.
Do I need a Will?
If you are over 18 years old and own anything at all, then in short, yes you do! It is possible that the Intestacy Rules will do exactly what you would want, but this is very rare and, in any event, do you know for sure what happens to your estate if you die without a Will?
Although generally speaking you must be age 18 and over to make a Will, there is an exception for those who enter the Armed Forces. It is essential for those who enter the Armed Forces, irrespective of age, for the service personnel and their spouse to have a Will in place. This means that you can have a Will at age 16 and 17 if you are in the Armed Forces.
What are the Rules of Intestacy?
I’m going to start by saying how important it is to ensure that you have a Will in place. Unfortunately, sometimes our loved ones put this off, believing it to be onerous, or not appreciating that the inevitable is sooner than they thought.
We would always advise carrying out a Will search before assuming an estate is intestate. This can be done by undertaking a search of the National Wills Register.
If you are certain that there is no valid Will, that persons estate will fall under the Rules of Intestacy. This is the law that dictates who is to inherit and indeed, who is entitled to administer the estate.
A blog by Melita Roberts, Associate Solicitor.
What happens if I don’t have a Will?
The main risk of taking advice about your Will from someone who is not qualified to give that advice, is that your wishes won’t be met when you die.
If you do not have a Will in place, which is valid and up to date, then when you die the Intestacy Rules, or an old Will that no longer meets your wishes, will decide what happens to your estate after your death.
This means that either the people you want to inherit might miss out, or those you do not want to inherit might get everything. Why leave this up to chance?
Are Wills complicated?
This entirely depends on your circumstances and wishes.
For many people, a straightforward Will that sets out their chosen Executors (the people who will deal with the estate), funeral wishes and beneficiaries is sufficient to meet with their wishes.
Sometimes, you may want a Trust, advice on business assets, to leave a large number of gifts, or divide your estate in a complex way. Whilst these Wills are more complicated, your solicitor should explain everything to you in terms you understand before you sign the Will.
Whether or not you need a more complex Will is something that your solicitor can discuss with you, but don’t let concern about this stop you from making that first appointment to talk about your Will!
Contact us
☎️ Call our Wakefield office on 01924 290 029
☎️ Call our Garforth office on 0113 246 4423
☎️ Call our Sherburn in Elmet office on 01977 350 500
☎️ Call our Mapplewell office on 01226 339 009
☎️ Call our Ossett office on 01924 586 466
The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
Six Big Questions Commonly Asked on Mental Capacity and Powers of Attorney
Having the peace of mind knowing that, were you to become too unwell to care for our own matters, you have an appointed person who will care for your property, finances, health, and welfare were you unable to care for them yourself is important. A Lasting Powers of Attorney (LPA) is the legal document that you need to give you this peace of mind.
However, making an LPA relies upon you having what’s known as mental capacity, i.e. the ability to know what you are doing and the ramifications of any decisions you make. Assessing an individual’s mental capacity is just one step taken when making an LPA. Here are six questions that are often asked regarding mental capacity and the making of a Lasting Powers of Attorney.
What is a Lasting Power of Attorney?
In brief, a Lasting Power of Attorney, often abbreviated to LPA, is a document which you put in place during your lifetime, which allows one or more people of your choice (known as your Attorneys) to make decisions and act on your behalf if you need them to in future.
There are two types of LPA – one to deal with your property and financial matters and one to deal with your health and welfare matters.
For more detailed information about why an LPA is a useful document for you to put in place see our dedicated webpage here.
What does “Capacity” mean when doing a Lasting Powers of Attorney?
Every decision that you make requires a certain amount of mental capacity. The test for each decision is different, depending on the circumstances.
To create a Lasting Power of Attorney, the person making it, known as the Donor, must understand the nature of the LPA they are creating, and the powers it gives their chosen Attorneys.
The test that must be satisfied before you can make an LPA is set out in the Mental Capacity Act 2005.
What is the mental capacity test?
The first thing to bear in mind is that the Mental Capacity Act states that every person must be deemed to have the required capacity to make a particular decision unless it has been established that they do not.
It also specifies that just because someone makes a decision that you consider to be unwise, that does not mean they don’t have capacity.
To make a Lasting Powers of Attorney, the Donor must meet four criteria.
- Understand what an LPA is, the decisions that the Attorneys will be able to make, and when the Attorney will be able to make them;
- Retain this information for long enough to make the decision;
- Use and weigh this information to make an informed decision about whether to make the LPA; and
- Be able to communicate their decision (by speech, sign language, in writing or by some other method).
If any of these four things are missing, then the person is unlikely to have capacity to make an LPA.
When does the solicitor apply the mental capacity test?
The test is applied by solicitors at the first meeting, throughout the progress of the matter, and on the day the Donor signs the LPA(s).
People’s capacity can change day-to-day, especially if they take medication or suffer from a short-term condition which, for example, reduces concentration. Your solicitor will bear this in mind, but you need to make sure that your solicitor know of any medications or medical conditions that might have an impact on things like your memory, your understanding, or your concentration.
What if the solicitor isn’t sure?
If the solicitor is not sure whether or not you have capacity to make an LPA then they will raise this with you and suggest an independent capacity assessment.
They will prepare a detailed letter of instruction to the person doing the assessment, detailing the findings of the test they have already performed and what the assessor needs to look for and report on.
If the assessment confirms that you do have capacity to make an LPA, then the solicitor can proceed but they might ask the assessor to be the Certificate Provider for your LPA in due course.
If the assessment confirms that you do not have capacity to make an LPA, then the solicitor cannot do any further work for you in relation to your LPA(s).
Are there any options when someone doesn’t have the mental capacity to make an LPA?
Yes. All is not necessarily lost if someone is found not to have capacity to make Lasting Powers of Attorney for themselves.
It is possible for an application to be made to Court, asking the Court to appoint someone appropriate as a Deputy for the person, because they cannot make decisions or act for themselves. These applications are made to the Court of Protection and usually take some time to finish.
You would have to provide the Court with good evidence that you being appointed as their Deputy would be in that person’s best interests. You will also have to provide them with details of that person’s finances, living arrangements and family members.
The limitations of this route are the time it takes to get the Order, the much stricter supervision of Deputies as compared to Attorneys, and the fact that, except in very exceptional circumstances, the Deputyship Order will only allow you to make decisions in relation to that person’s property and finances. Deputyship Orders in relation to health and welfare decisions are very rare.
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The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
Whose Responsibility Is It to Arrange a Funeral and Who Takes Ownership of the Deceased’s Ashes?
It is not uncommon to find families disagreeing on the way a deceased loved one should be memorialised. The added dimension of second family, or blended families, have increased the potential for conflict. However, more often than not, even if family members agree with cremation, it is the fate of the ashes that then becomes the point of conflict.
Whose responsibility is it to organise a funeral?
If there is a valid Will and you are an Executor named in the deceased’s Will, it is your responsibility to make the funeral arrangements for that person. However, you may find yourself in a difficult situation by having to make decisions based on vague, or limited information, when it comes to arranging the deceased’s funeral and family members may have opinions on what the funeral arrangements should be. This can cause conflict.
If there is no valid Will, the responsibility for arranging the deceased’s funeral will be in accordance with the order of priority as outlined in the Intestacy Rules. This means that the responsibility to make the funeral arrangements will fall to family members in the following order:
- The surviving spouse or civil partner of the deceased.
- The deceased’s children.
- The deceased’s parents.
- The deceased’s siblings and so on.
It is important to note from the above list that the deceased’s co-habiting partner or children of the partner are not included. If you have been in a long-term relationship with the deceased but are not married or in a civil partnership then you will not have a right to make any funeral arrangements unless the deceased has made a Will and has named you as an Executor.
Does making a Will help with Funeral Arrangements?
Making a Will, which leaves specific instructions regarding a persons’ wishes for their funeral, can help to avoid family disputes, but it should be understood that funeral wishes made in a Will are not legally binding and the Executor has license to make or change any funeral arrangements as they deem appropriate. This means that the Executor will have the final say, which can lead to family disputes but can also allow the Executor to work closely with the family members to ensure that the funeral arrangements give consideration to everyone’s individual wished for the funeral.
Who has ownership of a deceased person’s ashes?
In law, a person’s body is not considered property and therefore it cannot be owned, and this extends to the ashes of a deceased. The person expected to take possession of the ashes is the Executor (if the deceased left a Will), or the highest ranked next of kin inline with the Intestacy Rules if no Will has been left.
However, it is often the case that the funeral undertakers or the crematorium will release the ashes to the person who delivered the body up for cremation and signed the application for cremation. The person who delivers the body for cremation may not always be the Executor or Administrator, which ultimately can lead to a dispute between that person and the Executor or Administrator as to who should take possession of the ashes.
Resolving Disputes
If there is a dispute between Executors and family members regarding the deceased’s funeral (and ultimately ashes) then, if an agreement cannot be reached, the Court can be asked to decide who is entitled to possession of the ashes. This however, not only has significant cost implications given the urgency of such applications, but can also cause irreparable damage to family relations at such an upsetting time for all. It is therefore far better to avoid issuing Court proceedings by having discussions between the parties to try and resolve the dispute, or enter into Mediation which can be a fast, effective, and cheaper way of resolving such disputes.
Contact us
☎️ Call our Wakefield office on 01924 290 029
☎️ Call our Garforth office on 0113 246 4423
☎️ Call our Sherburn in Elmet office on 01977 350 500
☎️ Call our Ossett office on 01924 586 466
The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
What Happens if my Will is Found to be Invalid?
Making a Will is one of those tasks that often gets overlooked, however the importance of having a Will is clear. Without a Will, your assets will be distributed following the rules of intestacy which might mean that your assets are passed to someone who you may not have chosen. However, whilst having a Will is important, having a valid Will is paramount!
In this Blog we will focus on what happens if it is discovered that your Will is invalid and most importantly, what you can do now to prevent that from being the case.
What is the criteria for a Will to be valid?
- It must be in writing.
- It must be signed by the Testator (the person making the Will) or by another person at the direction of the Testator and in their presence. The Will must be signed with the intention that the signature gives effect to the Will.
- The Will must be signed in the presence of two witnesses who are both present at the same time.
- Each Witness must sign the Will in the presence of the Testator, but not necessary in the presence of each other.
- The Witnesses must be over the age of 18 and not benefit from the Will.
How should a Will be witnessed in order for it to be valid?
To protect you and your beneficiaries there are some strict rules that must be followed to ensure that your Will is witnessed correctly and failure to follow these rules will result in your Will being deemed invalid. These rules are as follows.
- You must sign your Will in the presence of two independent witnesses and then the two witnesses must sign the Will in your presence;
- The witness must be over the age of 18, independent, and not a beneficiary under the Will, or related to one of the beneficiaries;
- You must sign the Will whilst both witnesses are watching and your witnesses must sign the Will while you are watching;
- If the Will is not witnessed, or it is witnessed incorrectly, it will be considered invalid.
During the Coronavirus pandemic new legislation was introduced allowing for a Will to be witnessed via video link if necessary. It is best to have your Will witnessed by professionals such as solicitors to ensure the Will is witnessed properly.
What is Testamentary Capacity?
In England and Wales you are able to make a Will as long as you are over the age of 18 and have testamentary capacity. This means that at the time of making your Will you:
- Understand the nature and effect of the Will, including the impact on the beneficiaries;
- Understand the nature and extent of the estate and what assets you are gifting in the Will;
- Understand the implications of including or excluding certain people as beneficiaries and the potential for claims to be brought against the estate;
- Not have a disorder of the mind which affects their capacity.
In certain circumstances, if there is concern that testamentary capacity could be questioned after your death, an assessment of capacity can be obtained and report prepared confirming your testamentary capacity, which could go towards defending a claim. You could also request a medical professional to be one of the witnesses when the Will is signed, which could help uphold the validity of the Will. Some examples of where the validity of a Will can be challenged are:
Lack of knowledge and approval
If the person making the Will was not aware of its content, did not understand the content, did not understand the extent of their estate or who would benefit from it and therefore did not understand the effect of their Will this is known as lack of knowledge and approval. There could be suspicion for example about a large gift to a person who helped with the preparation of the Will.
Undue Influence
When the Testator has been pressured or coerced into making a Will, or changing an existing Will this is known as undue influence. For a challenge to be successful the court requires a high standard of evidence. Actual undue influence would need to be shown and proof there is no other reasonable explanation for the terms of the Will.
Fraud or forgery
If a Will has been forged or is the result of fraud then it will be invalid.
Getting married
It is important to note that if you marry after making a Will the Will is automatically revoked (cancelled) by that marriage, unless the Will has been made in anticipation of marriage and there is an appropriate contemplation of marriage clause included in the Will.
Losing a Will
The storage of your Will is an important consideration. If you store your own original and it is lost, there is an assumption at law that the person who made the Will destroyed it. This is why is it important to ensure that your Will is stored with solicitors.
What are the consequences of an invalid Will?
If the last Will made is not valid then it will be the previous valid Will that would stand, and the estate would be distributed in accordance with the terms of that Will.
If there is no previously prepared valid Will then the estate would be dealt under the rules of intestacy, as if no Will was ever made.
If your Will is found to be invalid after your death it could have serious consequences for your chosen beneficiaries and could be extremely costly to resolve.
It is extremely important to seek professional legal advice when preparing your Will, to significantly reduce the risk of mistakes being made, and to ensure that the Will achieves your intentions.
Blog: The Dangers of Unregulated Will Writing Services
When obtaining and paying for legal documents and services, it can seem to many as an unnecessary expense. Also, with the advent of online “quick wills” and standard pre-printed packs, many question why they should go to the expense of instructing a Solicitor.
A blog by Amanda Gait, Partner and Head of Residential Property
What can I do to ensure my Will is valid?
It is advisable to always seek professional advice when making a Will. A solicitor who is trained and has experience in making Wills will be able to ensure that your wishes are correctly documented. As regulated and qualitied professionals with many years of experience, we are here to assist you in making sure that your wishes are met.
The Rules of Intestacy determine how a person’s estate is distributed if they die without a valid will. Under these rules, only spouses, civil partners, and close relatives (children, grandchildren, parents, and siblings) can inherit. Unmarried partners and friends are not entitled to anything. The specific distribution depends on the size of the estate and the surviving relatives.
A will must be witnessed by two independent adults who are present when the will is signed. Witnesses must not be beneficiaries or the spouse/civil partner of a beneficiary; otherwise, they forfeit their inheritance under the will. The witnesses must be over 18 and of sound mind.
Contact us
☎️ Call our Wakefield office on 01924 290 029
☎️ Call our Garforth office on 0113 246 4423
☎️ Call our Sherburn in Elmet office on 01977 350 500
☎️ Call our Mapplewell office on 01226 339 009
☎️ Call our Ossett office on 01924 586 466
The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
