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Family Trusts – Your Most Common Questions Answered

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Family Trusts – Your Most Common Questions Answered

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Making the decision to begin a family trusts can be plagued with a deluge of complex questions and unfamiliar territory. So, visit the website & get the answers of the most common questions related to family trust.

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Making the decision to begin a family trusts can be plagued with a deluge of complex questions and unfamiliar territory.

Unless you're well-versed in the legal and financial sectors, this can be an overwhelming process, which makes it even more difficult to discern the correct route for your own individual case.

Am I doing the right thing by my family? What are the tax implications? What if there is a relationship breakdown in the family? How about if I become too ill or incapacitated to manage my affairs?

Such uncertainty may cause one to postpone the process, eventually missing the opportunity to protect any hard-earned money and assets.

You might be thinking of setting up a family trust imminently, or you may simply be in the process of researching to decide if this is the best choice for you and your family. Either way, we've tried to answer the most common questions surrounding the typical 'Family Trusts'.

What is a family trust?

A trust is a legal arrangement involving a three-party fiduciary relationship in which a first party (a settlor or trustor) transfers (settles) asset, such as property, upon a second party (the trustees, of which there must be at least two) for the benefit of a third party (the beneficiary or beneficiaries).

The English trust law was created to protect asset funds which can be held by one party for another's benefit. The key characteristic of a trust is that it separates legal ownership and beneficial interest. A family trust in this case, is created to benefit a family member (either by blood, affinity or law in the case of adoption) and can be used as an instrument to pass assets onto future generations. As a legal device, it is often used to avoid probate delay, tax and protect one's assets.

What is the difference between a trust and a will?

The two are frequently confused, and while the ultimate goal is not always dissimilar, the distinction is somewhat technical. In the case of a family trust, the appointed grantor (or settlor) will continue to have full control and use of all assets, and the appointed trustee has no role until the grantor is deceased or incapacitated. The trust therefore, covers the individual's assets in terms of dispersing those assets following one's death or incapacity.

How are family trusts set up? Do I need a legal personality?

Administering a trust is a complex and laborious process, so it is highly recommended that you employ a solicitor to do this. The language and terminology used in a trust must be meticulous and precise, and an experienced legal personality will have the knowledge to do this professionally and correctly.

There will be an initial cost depending on your solicitor of choice and the nature of your trust. Although some charities have schemes where they will contribute to the parents' cost of setting up a trust for a disabled child, for example.

It is vital that good advice is sought from the offset - setting up a trust is a complex process and is best kept in the hands of a legal professional who can foresee and mitigate any potential oversights during those initial stages. This will help you to avoid costly mistakes further down the line.

What type of 'assets' can be held in the trust?

You might wish to place assets of a high value or importance into a trust. This could be anything from:

What are the advantages of having a family trust?

A family trust can be advantageous for a number of reasons, and its protection can provide peace of mind in many scenarios. Here are the most common:

Preserve or increase value of assets

A trust is often used to preserve or increase the value of certain assets overtime. Unlike a will, an estate doesn't have to simply be divided and shared among the heirs but can be retained in the fund for the purpose of accumulating more value. In this instance, payment provisions can be arranged and paid to heirs when the need arises, but the property value is preserved and able to accumulate over time which can be kept for later generations. This can be extremely advantageous if you, as a grantor, have concerns about a vulnerable family member's ability to manage their financial affairs following your death.

Continuation of a family business

The family entrepreneur may wish to transfer shares of their business to a family member (trustee) to prevent unnecessary liquidation of the business following their death or incapacitation. This ensures continuation of the family business.

Tax planning

Inheritance tax would be eliminated in the case of a family trust since the assets transferred are no longer considered as belonging to the settlor. This can also protect future generations from potential tax law changes; a correctly administered trust could ultimately provide substantial financial savings in the future.

Confidentiality

Trust assets and their value are kept completely confidential since they are not publicly registered, unlike a will, which, as a public procedure requires you to inform tax authorities.

Protection of assets

Assets held in a family trust are protected from creditors if the settlor were to come into any financial difficulty.

What are the disadvantages of a family trust?

There are potential obstacles and disadvantages to some legal arrangements, however these are not completely insurmountable:

Complex administration

As previously mentioned, administering a family trust can be a laborious and time-consuming process, which requires professional legal assistance. Any vague and ambiguous vocabulary could render your trust obsolete which could cause distress and costly problems for your trustees.

Loss of ownership

Of course, once the trust is set up, legal ownership of said assets will be passed onto the trustees. While the settlor still maintains some level of control, in that they can add or remove trustees, they no longer have legal ownership of the assets.

Initial set up cost

There is of course an initial cost to employing professional help to set up your family trust. This cost is completely dependent on the nature, complexity and types of assets pertaining to your trust.

Family trusts provide numerous financial benefits, some of which are immediately apparent, such as protection from relationship breakdown or claims from business creditors. The benefits of course vary depending on the nature of your own objectives, your estate, and your assets.

Family trusts, as the name permits, help to keep assets of financial value 'in the family', and can therefore be used to protect valuable assets from your own past partners, or partners of your children and/or grandchildren. Whether there is a business, a substantial monetary gift, or a property you wish to protect, it might be worth speaking with a member of our team to discuss how we can build a tailored approach to your own family trust.

Speak to a member of our team today about Family Trusts on 01234 802 391 / 0345 222 0022, or by email at info@goodwills.net

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Family Trusts - Your Most Common Questions Answered |

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Making the decision to begin a family trusts can be plagued with a deluge of complex questions and unfamiliar territory. Unless you're well-versed in the legal and financial sectors, this can be an overwhelming process, which makes it even more difficult to discern the correct route for your own individual case.

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The Perils Of Being Amongst The Two Thirds Of Us Who Die Intestate

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The Perils Of Being Amongst The Two Thirds Of Us Who Die Intestate

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If there is any complication or any chance that the situation might change in some way either after your will has been written or after your death, then it is worth asking good solicitors to help you. Visit the website for more details.

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Two thirds of adult Brits don't have a will. To 'die intestate' is to expire without one. That could be a terrible mistake, not least because the majority of the legislation which determines how assets are apportioned when there's no will is almost a century old. So it doesn't reflect the reality and complexity of many modern relationships. And, even if the law had changed with the times, you might well be horrified at the consequences of not sitting down to think about your legacy.

The UK's RECENT and SIGNIFICANT SURGE in UNEXPECTED DEATHS

For anyone who wants to attempt to calculate the likelihood of their own death sometime soon then the Office for National Statistics has a wonderful resource at www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/datasets/deathsregisteredinenglandandwalesseriesdrreferencetables (this is the last set of data available, as I write, for 2017). But the truth is that most of those in graveyards had little intimation of their impending demise.

And, actually, our ability to predict death is getting worse and not better. In March 2018 'The Independent' reported that '10,000 more people than expected died at the beginning of the year in the UK - and no one really knows why'. See www.independent.co.uk/voices/england-wales-mortality-health-medicine-nhs-death-rate-a8256931.html. This is bad news indeed. Clearly it's not bad news for me. Or you since you're reading this. Yet it's bad news for anyone who was amongst those 10,000 people. And their friends and relatives. Not just because of the loss of life. But because many of those who are not expecting to die won't have left a will when they unexpectedly did.

WHY PLAN on an UNCERTAIN LIFE but NOT on a CERTAIN DEATH?

None of us wants to be a doom-monger. Yet it is a sad fact that we're all doomed. And, though we all plan meticulously for an uncertain life we often neglect to plan for a certain death. Interestingly even the Office of National Statistics has no data on precisely how many UK residents die intestate (leaving no will). See www.ons.gov.uk/aboutus/transparencyandgovernance/freedomofinformationfoi/deathsintestate. But it's a lot. The Financial Times thinks it's about two-thirds of us (see www.ft.com/content/81212cfe-4322-11e4-8a43-00144feabdc0; it cites research by Investec Wealth & Investment).

A GLIMPSE into WHAT MIGHT GO WRONG

We'd all like to think that those we leave behind would sort it out if we haven't organised a will. But here are just a few examples of the current intestacy rules:

Only married or civil partners can inherit from you. Any other partners including supposed 'common law' spouses have absolutely no rights. It doesn't matter if you've been together for aeons and everybody considered you to be inseparable

Nor does it matter if you've had 20 children together; if you're not married or civil partners then the survivor has no rights to assets

There would be no provision for any step-children you have, no matter how long they have been your step-children and no matter how much love and/or care you'll have demonstrated for each other

Of course it is always possible that the situation might be complicated by adoptive, fostered or illegitimate children. These possible beneficiaries could include people you care for - or would care for had you been aware of their existence.

More to the point, the sad fact is that those around you may not behave well after you've passed away. They may not respect your wishes if those wishes are not recorded in a will. And, in your absence, they may well not respect each other.

NOT SCAREMONGERING

This is not scaremongering. The British Government's advice is to be found at www.gov.uk/inherits-someone-dies-without-will and you'll see that this takes you on a step-through guide to what would probably happen if you died intestate. It begins by sending you down separate trails according to whether you're resident in England and Wales or Scotland or Northern Ireland.

A GENERAL GUIDE

There is a pecking-order if there's no will. In England and Wales that's governed by The Administration of Estates Act (1925). And the pecking-order's something like this:

Any married or civil law partners get the first £250,000 (importantly this is less than the average UK house-price, meaning a home might need to go under the hammer) including possessions

After that anything else is halved between the aforementioned partner and any kids as soon as they're over 18

If there's no married or civil law partner and no kids then parents are next in line

Siblings are next

Grandparents are next

Uncles and aunts are next

Any other living blood-relatives could follow

Her Majesty's Government - the Crown - is the final resort.

In any event any party that inherits may well be left to deal with any unsettled liabilities that you've racked up. And any such entitlement is sometimes going to be contentious, something that could further deplete whatever you leave behind.

THIS is IF YOU DIE INTESTATE. YET WITH a WILL YOUR WISHES SHOULD be RESPECTED

With a will you at least set out, for the record, what you want. Though you should remember that a will can be challenged. If you want to leave everything to your cat, and nothing to your wife or kids, then your sanity or fairness might be questioned. And on that basis your will could be overturned.

YOU DON'T NEED a SOLICITOR - THOUGH it MAKES SENSE to HAVE ONE

You can write your own will, a voluntary declaration, and have it signed by two witnesses who are not - and could not be - amongst the beneficiaries. But if there is any complication, any chance of your wishes being unclear, or any chance that the situation might change in some way either after your will has been written or after your death, then it is worth asking good solicitors to help you.

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The PERILS of BEING AMONGST the TWO THIRDS of US WHO DIE INTESTATE | Goodwills Legal Services Ltd

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Two thirds of adult Brits don't have a will. To 'die intestate' is to expire without one. That could be a terrible mistake, not least because the majority of the legislation which determines how assets are apportioned when there's no will is almost a century old.

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LPA for Property and Financial Affairs - Goodwills Legal Services Ltd

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LPA for Property and Financial Affairs - Goodwills Legal Services Ltd

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LPA for property and financial affairs gives an attorney power to immediately make decisions about money and property on the donor’s behalf. Contact Goodwills Legal Services Ltd for LPA as they have a vast experience to anticipate a broad range of scenarios and advise accordingly.

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The LPA allows those donors to make appropriate arrangements for one or more family members (who subsequently become the donor's 'attorney' or 'attorneys') to make decisions on the donors' behalves. LPAs are overseen by the Office of the Public Guardian (OPG) and that, in itself, falls within the remit of the Ministry of Justice. Moreover, if something went wrong, the Financial Ombudsman would have the power to investigate and rule too. So there are stringent safeguards to protect donors.

Obviously such LPAs might kick in where such circumstances are expected e.g. where the donor has been diagnosed with early-onset Alzheimer's. Or where they would be unexpected e.g. where the donor is in a persistent vegetative state (PVS) or coma after a road traffic accident, a stroke or a life-saving emergency operation.

Importantly different regulations apply in Scotland and Northern Ireland. But for an LPA to be drawn up here in the UK a donor does not need to be a resident or even be a British citizen. And the donor can end or change an LPA, if they possess the faculties to do so, using a 'deed of revocation' or a 'partial deed of revocation' respectively.

Could an LPA be Abused When I Still Have All My Marbles?

Not easily.

The MCA has lots of built-in safeguards to prevent wilful abuse - or accidental misuse - by attorneys. But most importantly there are 5 guiding principles that are best understood as questions that must be asked about the donor's mental state before LPAs are executed:

The donor is assumed to have capacity unless it's clear that actually they don't

A donor can't be considered as unable to make a decision unless all practicable efforts to involve them in the process have failed

A bad decision already made by the donor does not mean they are henceforth deemed to be incapable of making good decisions

Any decisions or acts made under a LPA have to self-evidently be made in the donor's best interests

Any decision or act under an LPA should still respect, as much as possible, the donor's rights and freedom of action.

If Push Comes to Shove, How Does Anybody Decide Where I Have (or Have Not) Lost My Faculties?

Of course any decision regarding a donor's capacity might easily be thought of as subjective rather than objective. But commonly the question asked of a donor is decision-specific. It is: 'Could they safely be left to use a gas ring without supervision?' Indeed the MCA says this question is 'a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time'.

What Might Go Wrong?

Sadly quite a few things. Of course matters could be complicated if, for example, a sole attorney dies before the donor. This is where you would be better talking to Goodwills. We don't have a crystal ball but we do have the vast experience to anticipate a broad range of scenarios and advise accordingly.

A Property and Financial Affairs Lasting Power of Attorney (LPA)

An LPA gives an attorney powers to immediately make decisions about money and property on the donor's behalf. Their decisions and actions might include:

Managing bank and building society accounts

Paying bills

Collecting benefits and pensions

Selling your home(s)

Where Can You Find Out More About LPAs?

You can find out more on LPAs at Goodwills though the government website will tell you a lot at www.gov.uk/power-of-attorney.

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Property and Financial Affairs Lasting Powers of Attorney (LPAs) | Goodwills Legal Services Ltd

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The LPA allows those donors to make appropriate arrangements for one or more family members (who subsequently become the donor's 'attorney' or 'attorneys') to make decisions on the donors' behalves. LPAs are overseen by the Office of the Public Guardian (OPG) and that, in itself, falls within the remit of the Ministry of Justice.

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Lasting Power Of Attorney - Goodwills Legal Services Ltd

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Lasting Power Of Attorney - Goodwills Legal Services Ltd

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If you have more than one attorney, you can decide if you want them to be able to make decisions independently, or together with Lasting Power Of Attorney (LPA) by Goodwills Legal Services Ltd. Visit the website for more details of LPA.

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It us up to you who you appoint as Attorneys, however they must be over the age 18, have mental capacity, and must not be bankrupt. It is sensible to appoint someone who understands your business so that they can make appropriate decisions. It is also important to trust them enough to act in your best interests.

You can also appoint reserve attorneys. This is useful if the attorneys you appoint are unable or unwilling to act when required.

What can an appointed attorney do?

An attorney appointed in a Business Lasting Power of Attorney will have the responsibility of making decisions as you would You can help the attorney by defining what they can and can't do in the LPA document, and you can also include preferences which are not legally binding, but the attorney should take these into account whilst making decisions.

Registering your Business Lasting Power of Attorney

A Business LPA cannot be used until it has been registered with the Office of the Public Guardian. You can decide at outset whether the LPA can be used as soon as it is registered, or only once you have lost capacity. There is a registration fee, payable to the Office of the Public Guardian (currently £82) and registration takes 10 weeks, so it should be done as soon as possible after the Business LPA is made.

Who should have a Business Lasting Power of Attorney?

Sole traders, partners in a partnership and controlling directors of a limited company might need a Business LPA. Without the powers afforded to attorneys in a Business LPA the company could stop being able to function properly which could affect cashflow, goodwill and the reputation of the company.

This could directly or indirectly affect the income of the business owner's family either in the short term, or permanently, especially if the business is forced out of business because it has its hands tied when decisions need to be made.

What If there isn't a Business Lasting Power of Attorney?

An application can be made to the Court of Protection to appoint a deputy. This process can take up to 9 months, and the court fees and solicitors fees would be much higher compared to setting up a Business Lasting Power of Attorney.

The waiting period to get the deputyship in place could be catastrophic for the business. The powers of a deputy are usually less than an Attorney, and they are much more accountable, having to have their decisions assessed at the end of each year, and annual costs are attached to this too.

The deputyship can only be applied for if the business owner has permanently lost mental capacity. The LPA could be used for example if the donor was in hospital, or overseas when important documentation needed signing.

This Business LPA could make the difference between a deal happening or a deal breaking down, or finances being available or not available in a variety of different circumstances.

How can I get a Business Lasting Power of Attorney?

You can create a business LPA yourself, however it is important to ensure that your LPA does exactly what you need it to, and you can avoid the many pitfalls which will invalidate your document.

Goodwills has made over 15,000 LPAs and EPAs since 2003 and has regular dealings with both the Office of the Public Guardian and the Court of Protection. We charge a competitive professional fee to complete your business LPA and deal with the Office of Public Guardian to get it registered.

Storing a Business Lasing Power of Attorney

It is easy for a Business LPA to get lost, stolen, damaged, destroyed or defaced. It is important that it can be found quickly when needed.

If you do not intend to use the LPA immediately, we can store the document on your behalf. We have secure fireproof and floodproof facilities, and are insured in case the documents get damaged, lost or destroyed whilst in our care. Documents in our care can usually be returned to the donor within 2 to 3 working days.

Business LPA frequently asked questions (FAQ)
Can we have a business LPA that covers all the owners of a business?
Individual LPA documents will need to be created for each member of the business and each document will need to be registered separately. There will be a registration fee for each LPA that needs to be registered.
How long does a Business LPA last for?
A business LPA will last for the life of the donor (the person who the LPA is for), however the donor can revoke the LPA if they have the mental capacity to do so.
What if a Business LPA is lost and cannot be found?
If the document has been registered, office copies can be requested, and these can be used as the original document could. There is a charge made by the Office of the Public Guardian for issuing office copies.

If the document has not yet been registered, then a new LPA would need to be created. This is only possible if the donor has the mental capacity to do so.
What if I am an owner of multiple businesses?
You can name which businesses you want the Attorney to be able to make decisions for. You can also give the attorney different decision-making capabilities for different businesses too.

Can the LPA be used for business decisions after the donor has died?

No. Not under any circumstances. It is important to add business continuation clauses in your Will if you would want your attorneys or somebody else to continue to act after your death. This is a different mechanism, and will work in a different way, but will ensure that the business can continue whilst Probate is being dealt with which might take six months or longer to administer.

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Business Lasting Powers of Attorney (LPAs) | Goodwills Legal Services Ltd

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It us up to you who you appoint as Attorneys, however they must be over the age 18, have mental capacity, and must not be bankrupt. It is sensible to appoint someone who understands your business so that they can make appropriate decisions. It is also important to trust them enough to act in your best interests.

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Agricultural Property Relief - Goodwills Legal Services Ltd

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Agricultural Property Relief - Goodwills Legal Services Ltd

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If you own part or all of a farm, then you can pass on some agricultural property without paying much – or any – inheritance tax. Just contact Goodwills Legal Services Ltd and they will provide agricultural property relief that will save you, or those close to you, hundreds of thousands of pounds.

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What is agricultural property relief?

What is agricultural property relief? If you own part or all of a farm then you can pass on some agricultural property including land and working buildings without paying much - or any - inheritance tax (also known as IHT) on it. That could easily save you, or those close to you, hundreds of thousands of pounds.

APR can be complex, and this is where it is useful to harness the knowledge of professionals with specific experience in Will, Trust and Estate Planning for farmers. Of course it is useful that Goodwills understand the Inheritance Tax Act (1984) in the same way that you know farming. But this page outlines the most important facts.

You Don't Need to Buy the Farm!

This tax-break can be after your death, if the inheritance is mentioned in a will, so it would then be tied to a bequest. But it can also be a tax-break during your lifetime if you choose to pass it as a gift to an individual or even into Trust.

Importantly APR is available to the owner whether that owner farms the land or has a tenant or tenants do so instead. But as the transferor you must have been the owner for at least 2 years prior to your death or the transfer.

What is APR Worth?

How much is APR worth? APR is either 50% or 100% of the agricultural value (not the market value or the development value, so what the property would be worth if it could only ever be used as a farm). You'd need to speak to a local land agent or land valuer to settle on the sum involved. Goodwills are also able to help advise when it comes to the valuation itself.

The 50% applies if the land is currently let out, was let out before 1st September 1995, and the lease for that let has still 2 years to run before your own intended transfer. Otherwise the 100% applies. This may mean that, if your land was let before 1st September 1995 and the lease is running down towards 2 years, you might need to take early action in order to ensure you benefit from APR. If youâ€™re in any doubt, then contact us and weâ€™ll be able to assist.

What Farm Assets Are Covered by APR?

The agricultural property may be land that is used to grow crops. Or pasture that is used to rear animals intensively. Stud farms for breeding and rearing horses, and grazing, would also qualify. As would trees that are planted and harvested at least once a decade i.e. they are short-rotation coppices. It even covers the value of the milk quota associated with the land, as well as some shares and securities. (There is more. But we are limited here by space. Yet Goodwills will be able to rattle off a list if you speak with us.) Often APR will also apply to residential buildings e.g. farmhouses that are clearly occupied by still-active farmworkers. But HMRC is a little vague on this! Likewise there is some latitude on farm cottages given the possible occupants and their relationships with the land.

Which Agricultural Assets Are Not Covered by APR?

What APR won't cover is farm equipment, machinery, livestock harvested crops and derelict buildings. (Again this is not an exclusive list because we're limited by space. Yet Goodwills will be able to rattle off a list if you speak with us.)

Where Can You Find Out More About APR?

You can find out more on Agricultural Property Relief at Goodwills though the government website will tell you a lot at www.gov.uk/guidance/agricultural-relief-on-inheritance-tax. It also lets you work out whether assets in an estate qualify for APR and the rate at which it is due. If you want some advice or a fixed-price quote then you can call Goodwills on 0345 222 0022 or email us on info@goodwills.net.

Why Did We Mention Business Property Relief (BPR) and Entrepreneur's Relief (ER)?

Agricultural Property Relief sometimes ties in with Business Property Relief (BPR) and Entrepreneur's Relief (ER).

Business Property Relief (BPR) in Brief

Business Property Relief (BPR) is also defined by the Inheritance Tax Act (1984). Like APR it can mean the avoidance of 50% or 100% of inheritance tax (IHT) using the market value. And it might be relevant to farm-owners because it spans, for example, machinery. (Remember that APR did not!)

But the situation here is enormously complex, and legitimacy depends very much on the timing of transfer / death. If these are 'fluffed' then HMRC can investigate the matter and call in all of the paperwork then void the claim, since entitlement to Business Property Relief (BPR) is occasionally abused and that triggers tax-avoidance alarm-bells. In particular what the HMRC do not like is to see BPR claimed on business property that is promptly sold on to a 3rd party. Or the fudging of market value. They might quite rightly perceive that BPR is being harnessed to release cash, and it's not designed for that purpose.

Again BPR can be complex. But this page outlines the most important facts.

Where Can You Find Out More About BPR?

You can find out more on Business Property Relief at Goodwills ( www.goodwills.net), although the government website will tell you a lot at www.gov.uk/business-relief-inheritance-tax. It lets you see which assets qualify for BPR and the rate at which it is due.

If you want some advice or a fixed-price quote, and it is useful that Goodwills understand the Inheritance Tax Act (1984) in the same way that you know farming, then you can call Goodwills on 0345 222 0022 or email us on info@goodwills.net. Entrepreneur's Relief (ER) in Brief

Lastly here we should mention Entrepreneur's Relief (ER). Entrepreneurs selling their qualifying assets can claim a lifetime allowance of £10m in gains to be taxed at just 10% if they have at least 5% of the shares and have been an employee or director for at least a year but after 5th April 2013. So Entrepreneur's Relief can save fortunes.

Further details are available on the government website at www.gov.uk/entrepreneurs-relief. Should you want some advice or a fixed-price quote then you can call Goodwills on 0345 222 0022 or email us on info@goodwills.net.

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AGRICULTURAL PROPERTY RELIEF (APR) | Goodwills Legal Services Ltd

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What is agricultural property relief? If you own part or all of a farm then you can pass on some agricultural property including land and working buildings without paying much - or any - inheritance tax (also known as IHT) on it. That could easily save you, or those close to you, hundreds of thousands of pounds.

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Islamic Wills - Goodwills Legal Services Ltd

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Islamic Wills - Goodwills Legal Services Ltd

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Al-Wasi needs to apply for a Grant of Probate which is a legal document that will authorize the Al-Wasi to distribute the assets in accordance with Al-Wasiyyah. For this, Goodwills Legal Services Ltd provides probate services to assist you in the Islamic wills. Visit the website now!

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The significance of Al-Wasiyyah (Will)

The significance of Al-Wasiyyah is clear from the following two hadith:

"It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a Will about it." (Sahih Al-Bukhari)

Sayyiduna Abu Huraira (RA) narrated that Prophet Muhammed ﷺ said that - "A man may do good deeds for seventy years but if he acts unjustly when he leaves his last testament, the wickedness of his deed will be sealed upon him, and he will enter the Fire. If (on the other hand), a man acts wickedly for seventy years but is just in his last will and testament, the goodness of his deed will be sealed upon him, and he will enter the Garden." (Ahmad and Ibn Majah)

Basic principles of Islamic inheritance

Unlike a UK Will, in an Islamic Will the Testator is restricted in certain aspects when gifting his estate. These restrictions include:

Al-Musi cannot gift more than ⅓ of his net estate unless the established heirs' (see point 2) consent to the gift of the estate or there are no legal heirs at all, or the only legal heir is the spouse.

It was narrated by Sayyiduna Sa'd Ibn Abi Waqqas (RA): "I was stricken by an ailment that led me to the verge of death. The prophet came to pay me a visit. I said, "O Allah's Apostle! I have much property and no heir except my single daughter. Shall I give two-thirds of my property in charity?" He said, "No." I said, "Half of it?" He said, "No." I said, "One-third of it?" He said, "You may do so, though one-third is also too much, for it is better for you to leave your offspring wealthy than to leave them poor, asking others for help." (Sahih Al-Bukhari, Sahih Muslim, Muwatta, Tirmidhi and Ibn Majah).

Unlike in English Law where Al-Musi can distribute their estate to whom they desire, in Islamic Law, Allah has already ordained the shares which shall pass in accordance with His commands in the Qur'an and the Sunnah. Allah stipulates who the established heirs known in Arabic as the Zawil Furood, are in Surah Nisa, Ayahs 11-13. Allah affirms with His statement "[This is] an ordinance from Allah, and Allah is Knowing and Forbearing". As you can see from Allah's statement, one cannot bequest beyond what Allah has ordered. The categories of Zawil Furood shall follow. All of the Islamic jurists agree that intentional or unjustifiable killing of Al-Musi would exclude a person from inheritance.

Al-Musi cannot make a Wasiyyah (Gift or legacy from the ⅓) in favour of a Zawil Furood unless all other Zawil agree to this bequest passing. So, a father who is a Zawil Furood cannot receive a bequest because he is already going to receive an established share but if the other living established heirs accept the bequeath, then they can benefit from this

The assets of the Al-Musi MUST be distributed in the following order of priority:

Funeral expenses - All funeral expenses must be paid;

Debts - Any outstanding debts must be repaid;
Even if there are not enough monies in the estate, the debtor is still owed their money unless they forgive this. The family can choose to repay the debt on behalf of the deceased, but this isn't a legal entitlement. If any debts are unpaid, then this matter is with Allah and the deceased;

Wasiyyah (gifts and legacies)- Any Wasiyyah (gifts and legacies) should be honoured as long as it does not exceed one-third of the value of the net asset; and

The remaining assets must be distributed to the Zawil Furood according to Quranic teachings.

Why make an Islamic Will?
Islamic Testimonial
To fulfil an essential religious duty.
Decide on funeral and burial arrangements
In the event that you die without leaving a Will you are considered to have died 'intestate' in English Law and so your wealth will be distributed in accordance with the English rules of intestacy - which do not apply the same criteria as those laid down by the Qur'an and Prophetic teachings. This will in turn make one sinful and negligent in fulfilling the commands of Allah and His messenger ﷺ.

Burial rituals to take place as soon as possible and having the body released for burial immediately after death without being subjected to a routine post-mortem examination because the Prophet Muhammad ﷺ said, "Breaking a dead man's bone is like breaking it when he is alive." (Sunan Abu Dawud);

The bathing of the dead body (known as Ghusl in Arabic);

Shrouding the body with a white cloth (known as Kafan in Arabic);

Collective funeral prayer (known as Al-Janazah in Arabic)

Burial of the dead body in a grave determined/purchased by Al-Musi. If not already purchased, then the Executors and family should arrange this.

Appointment of Executor(s) (Al-Wasi)
What to consider when making your Will

One of the most important parts of making an Islamic Will and one of the greatest contrasts to a UK Will is to open with the declaration of Islam "I testify that there is no deity worthy of worship except Allah, and Muhammad ﷺ is His final Messenger". Along with the testimony of faith, one should praise Allah, His Messenger ﷺ and declare his intentions and belief in Islam.
Appointment of a guardian for children
Al-Musi should specify that they would like their funeral and burial arrangements to be carried out in accordance with the practices of Islam. These include:
Decide on any Wasiyyah (gifts and legacies)
Al-Wasi (the Executor) of the Will is the one who deals with the administration of the Estate. The Executor has to carry out the wishes of Al-Musi according to Islamic law. Ideally, Al-Musi should select an Al-Wasi who is trustworthy and truthful. Al-Musi may appoint more than one Al-Wasi, male or female and Al-Musi can choose how Al-Wasi will act.

Al-Wasi will need to apply for a Grant of Probate which is a legal document that will authorise the Al-Wasi to distribute the assets in accordance with Al-Wasiyyah. If your Al-Wasi do not know how to calculate the Qur'anic shares, they can either find an 'Aalim' (Islamic Scholar) who has this knowledge to assist them. Goodwills provide probate services for Al-Wasiyyah.
The Residuary Estate (Al-Tareeka)
Choosing what is best for your child is an essential obligation in Islam. This is particularly significant for those who have non-Muslim relatives and want their children to be brought up with Islamic teachings. The person to be appointed as a guardian for the child should be whoever is most appropriate for the benefit and care of the child.

After the payment of any taxes, debts, and funeral and administration expenses, one-third of the estate can be left to anyone - this may include friends and family who are not entitled to inherit under Shari'a, as well as charities.

Sayyiduna Abu Hurairah (RA) said that the Messenger of Allah (saw) said, "When a person dies, his deeds come to an end except for three: Sadaqah Jariyah (a continuous charity), or knowledge from which benefit is gained, or a righteous child who prays for him". (Sahih Muslim)

The remainder of the estate is distributed in specific shares to the Zawil Furood. The Fixed shares under Islamic law may not be changed. The only changes to these shares occur when certain circumstances necessitate it as we will discuss below.

Who are these 'Zawil Furood (Established Inheritors)' and how does it all work?

The categories of those who inherit a set share include:

Husband Wife

Father Mother

Grandfather (paternal) Grandmother (paternal & maternal)

Half Brother (maternal) Half-sister (maternal)

Half-sister (paternal)
General guidelines to distributing the shares

1. The closest relatives (husband, wife, son daughter, father, and mother) will always inherit a share and will always have precedence over distant relatives (as we shall see below); or

2. In the absence of the closest relatives, the more distant relatives (such as grandparents and grandchildren, half-siblings) will then be entitled to inherit fixed shares.

Daughter

Granddaughter

Sister
But doesn't the son inherit double what daughters inherit
The above categories have been given set shares by the Qur'an and Sunnah and the shares will often fall into 6 which are either ¼, ½, ⅛, ⅓, ⅔ or 1/6.
The Residuaries ('Asaba)
Now, this is where it can get complicated because not all of the above categories will inherit depending on if anyone else from that category is alive. For instance, if the father is alive, then the grandfather will not inherit.

Another situation which can arise is that a share which a person is entitled to can vary depending on if anyone else from another category is alive or multiple people from the same category are alive. For instance, a deceased's husband will receive ½ of the estate but if any children of the deceased are also alive, then the husband will receive 1/4. Similarly, if there is one daughter alive, then she receives a ⅓, however, if there are 2 or more daughters alive, then they inherit ⅔ between them (both shares only occur if the deceased's son(s) is not alive).

This situation is very complex, and it is advised that an Executor dealing with an estate learns thoroughly the correct rulings of inheritance or seeks our assistance or a Scholar who has comprehensive knowledge of the religion. Goodwills has specialist team who deal with Islamic inheritance.

1. The deceased's Son and every generation of issue that follows (grandson and down from the medium of a male, so daughters' children and so on are not included etc.);

2. The deceased's Father and every paternal generation above (grandfather and above etc.);

3. The deceased's Brother and every generation below (nephews and below etc.); and

4. The deceased's Uncle and every generation below (cousins and below etc.)

Although we have stated that the Zawil Furood are the established inheritors of an estate, there is also another category of inheritors who are privy to benefit from the Tareeka. The relatives in this category are known as 'Asaba. The Asaba will inherit whatever is remaining in the Tareeka (after the Zawil Furood take their share) or if there is no Zawil Furood, then they will inherit the entire Tareeka. The complexity here is, where there is a particular 'Asaba, they will make those who are directly associated with them into 'Asaba as well. For example, if a deceased's son is alive with his sisters (the deceased's daughters), then the daughters will no longer inherit ⅓ or ⅔ as Zawil Furood, but they will now inherit half of their brother's share as 'Asaba. This is also the case with the deceased's brothers and half-brothers, they will turn their respective sisters (the deceased's sisters and half-sisters) into 'Asaba and they will inherit half of their respective brothers' share.

The only time a category from the Zawil Furood will become an 'Asaba in the case of a female is when a deceased's daughter is alive with the deceased's sister. The daughter will inherit her share as Zawil Furood, but the sister will now become categorised as 'Asaba so she will get the remainder of the estate (but only if the sister's respective brother and deceased's son are not alive).

One last note relating to 'Asaba is that there are 4 categories of 'Asaba and each will inherit the remainder of the Tareeka. These are:
But what if there are too many shares to distribute?
Please note that the categories are ranked in strength of who benefits, so the persons' category 1 have the strongest claim to inherit, then 2, 3 and finally 4. For example, if the deceased's son (category 1), father (category 2), brother (category 3) and uncle (category 4) are all alive, then the son will inherit, and the others will not inherit due being from lower category. If there is no son, then the father will inherit, and the others won't and so on. However, it is important to note that a person from a further generation in the same category will also not inherit, for example, the deceased's grandchildren will not inherit if the deceased's son is alive despite being from category 1 as well.

However an expansion to the fact that closer generation takes precedence is that this priority also applies between different categories, so if the deceased grandson is alive and so is the father, then although the grandson is in category 1, it is, in fact, the deceased's father who will inherit because he is closer in generation. The ranking of categories (from 1-4) only apply when each potential 'Asaba are from an equally close or distant generation (e.g. son with father, grandson with grandfather etc.)

But don't worry if all the above is getting complex and difficult to understand. We here at Goodwills will go over every step with you and discuss each share in as much detail.

Islamic inheritance is comprehensive, and the scholars have always been able to come to a solution to ensure shares go in accordance to how Allah has ordained. If there are, several inheritors and their shares equal more than 1, meaning there are too many shares to distribute, then each of the beneficiary's share will be reduced proportionately. This type of scenario is called Al- 'Awl'. An example of this was established by Sayyiduna Umar (RA) during his reign as Khalifah.

A typical example of this will be if a deceased left her husband and 2 sisters.

Husband 2 Sisters Lowest Common Denominator (Makhraj)

½ ⅔ 6
But what if there are not enough shares to distributed
Husband receives 3/6

Sisters received 4/6

As you can see, we have a case where the total shares are 7/6 and therefore the distribution cannot be established. In order to rectify this, we simply change to the Makhraj to 7 and the shares fit into place and both have been equally and fairly reduced.

Now if the opposite to Al-Awl happens and the total shares of the Zawil Furood falls below 1, and there is no 'Asaba to take the remainder of the estate, meaning after the shares are distributed, there will be excess funds left in the estate that will need to be distributed. In this case, each of the beneficiary's share will be increased proportionately through a process called Radd (redistribution). Every member of the Zawil Furood who received a share will receive the remainder in the proportions that they are inheriting. However, Radd does not apply to spouses except when there are no other relatives from any other categories alive (please note there are more categories beyond 'Asaba but these can get more complex so these can be advised upon if the scenarios ever arise). All other categories of Zawil Furood will receive Radd. If spouses are alive with other Zawil Furood, then the spouse will only take their share and the other surviving Zawil Furood will take their share and whatever proportionately the extra amount via Radd

An example of an instance where Radd occurs is if the deceased passes away leaving only 2 daughters.

2 Daughters Lowest Common Denominator (Makhraj)

⅔ 3

As we can see there is still a third remaining to be distributed and no Wasiyyah (gift and legacy) has been made. Using the process of Radd, we simply change to the Makhraj to 2 and the shares fit into place and both daughters will receive an equally increased amount.

Storage of the Islamic Will

It is important that your Islamic Will is safely stored and this is also a service that Goodwills are able to offer for you. Wills are frequently lost and, once you have gone to the trouble of making a Will, it is strongly recommended that it is stored professionally in a flood proof, fire proof and secure environment.

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Islamic Wills | Goodwills Legal Services Ltd

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The significance of Al-Wasiyyah is clear from the following two hadith: "It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a Will about it."

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Protecting Against Care Home Fees - Goodwills Legal Services Ltd

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Protecting Against Care Home Fees - Goodwills Legal Services Ltd

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Goodwills Legal Services Ltd offers trusts that can be used to protect property from care home fees, divorce, bankruptcy and third-party creditor claims within the wills they draft. Call 0345 222 0022 and talk to the experts now!

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As noted in the Wills sections of our website, we are able to include a wide range of Trusts within the Wills we draft. Trusts can be used to protect property from care home fees, divorce, bankruptcy and third-party creditor claims. On other occasions, Trusts might be used to save significant amounts of tax or to provide flexibility, so that a client's Estate can be distributed as fairly and efficiently as possible. A general breakdown of the main types of Trust we offer is given below and each Trust has its own dedicated page, which goes into far more depth.

As a regulated law firm, we are also able to draft Lifetime Freestanding Trusts. These include Home Protection Trusts, which are a type of Trust created during your lifetime and which help to protect your property from a range of third-party creditors and can also benefit you (and your beneficiaries) by avoiding the need for Probate on the property. We have a page dedicated to both Home Protection Trusts and Lifetime Discretionary Trusts and, if you'd like further information, just get in touch and we'll send out one of our detailed brochures. We're also always happy to help by phone or email.

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As noted in the Wills sections of our website, we are able to include a wide range of Trusts within the Wills we draft. Trusts can be used to protect property from care home fees, divorce, bankruptcy and third-party creditor claims. On other occasions, Trusts might be used to save significant amounts of tax or to provide flexibility, so that a client's Estate can be distributed as fairly and efficiently as possible.

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Will Writing Franchise - Goodwills Legal Services Ltd

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Will Writing Franchise - Goodwills Legal Services Ltd

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Goodwills Legal Services Ltd offer a low-cost nationwide will writing service, where their advisers will visit you in the comfort of your own home, take your instructions and your wills shall then be drafted by our legal team. Visit the website for more details.

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Funeral Wishes

Funeral wishes may be as simple as a request to be buried or cremated. They may also request a particular cemetery or place of service. We are able to include such wishes within our Wills for no extra charge. We also provide Funeral Plans, which have become an increasingly popular way of paying for funeral costs prior to death. Funeral Plans can not only reduce costs for your loved ones but can also take away the stress of dealing with the funeral during what is anyway a difficult time.

When the British Government Advises Citizents to go to Solicitors for Advice on Wills

The circumstances in which the government advises us to go to solicitors for help with wills can be summed up as when complexities arise because we:

· Share property with anyone who is not legally a spouse (NB 'common-law' wives and husbands are not legally recognised)

· Wish to leave assets to dependents who will rely on others for future care

· Will leave behind several family members, and this is especially likely if we've remarried, who might fight over assets

· Possess a permanent home overseas

But there are other considerations. Like, for example, whether you have step-children, foster-children or adopted children. Unless they are mentioned in a will they are likely to inherit nothing by default.

Execution of your Will (also known as the Attestation process)

It's never enough to simply write a will. Because you'll then need to formally sign it in front of appropriate witnesseses. Otherwise it won't be legally valid. And that means it could well be contested. In some circumstances, after your death, an old will which no longer represents your wishes might then be relied upon - with repercussions that would have you rolling in your grave.

Can you change your Will?

Relationships change. Assets change. And potential beneficiaries might come and go between when a will is written and when it is to be referred to in the process of dispersing assets. Sadly sometimes our children predecease us (they die first). Happily sometimes the circle of family and friends grows (through marriages, births and more). So there might be many reasons for you to wish to update or replace your existing will.

Anyone intending to update their will must make an official alteration called a 'codicil'. For our clients, we recommend that new Wills are produced and charge no extra to do so if clients are using our Storage and Amendments service.

What if you die leaving no Will? This is known as Intestacy.

If you die without a will, that's die intestate, the law decides on who gets what. The British Government's advice is online at www.gov.uk/inherits-someone-dies-without-will. It takes you on a step-through guide to what happens when people die intestate. There are separate trails for residents of England and Wales or Scotland or Northern Ireland.

The system in England and Wales is defined by the Administration of Estates Act (1925). And the pecking-order, when somebody dies without leaving a will, is something like this:

· Any married or civil law partners get the first £250,000 (importantly this is less than the average UK house-price, meaning a home might need to go under the hammer) including possessions

· After that anything else is halved between the aforementioned partner and any kids as soon as they're over 18

· If there's no married or civil law partner and no kids then parents are next in line

· Grandparents are next

· Uncles and aunts are next

· Any other living blood-relatives could follow

· Her Majesty's Government - the Crown - is the final resort.

So you have a valid Will? Where do you store your Will in order to keep it safe?

Goodwills shall ensure that your Will is valid and reflects your intentions. But what then?

· Firstly, ensure that the Executor (who has agreed to ensure your will is implemented) knows about the will and where it is going to be kept. Goodwills produce Certificates of Deposit for you to pass to your Executors if you make your Wills with us.

· Secondly, store it in a truly safe place. Goodwills offers a storage service to our clients and also an enhanced Storage and Amendments service.

· Thirdly review your will periodically. Just to remind yourself of it and to ensure that it still represents what you expect to be your final wishes.

Our other Services

We are also able to advise on a wide range of other services at your Will Writing appointment, including Lasting Powers of Attorney, Trusts and Advance Decisions. Get in touch with us today on 0345 222 0022 or at info@goodwills.net to find out more or to arrange an appointment.

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Funeral Wishes Funeral wishes may be as simple as a request to be buried or cremated. They may also request a particular cemetery or place of service. We are able to include such wishes within our Wills for no extra charge.

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Pilot Trusts - Goodwills Legal Services Ltd

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Pilot Trusts - Goodwills Legal Services Ltd

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Goodwills Legal Services Ltd team has a long term experience of creating Pilot Trusts which is specifically designed to receive lump sum payments from a pension scheme or life insurance policy. Call 0345 222 0022 and speak to them to contact your local Estate Planning Practitioner or Independent Financial Advisor.

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You would first need to check to see if the policy can pay the lump sum to a Pilot Trust. You would then need to arrange for the Trust or Trusts to be set up. Finally, you would nominate the Trust or Trusts (which you would name, such as The Smith Family Pilot Trust 1) with the insurance company or the trustees of the pension plan.

On your death, the proceeds of the pension plans or life insurance policies can be paid to the Pilot Trust or Trusts, but this needs to be done with exactly the right timing. If done correctly, the Pilot Trust can provide both Inheritance Tax benefits, and protect the assets in the Trust should the any of the nominated beneficiaries die, must go into residential care, get divorced or are made bankrupt.

What are the Inheritance Tax Benefits of a Pilot Trust?

You can have multiple Pilot Trusts; however, they must be set up on different days, and not have proceed paid into them on the same day as other Pilot Trusts you own either.

If these rules are followed, then each Trust will have a full Nil Rate band attributed to it, and periodic or exit charges will not apply, unless the value of the trust goes above the Nil Rate Band, which is currently £325,000.

If for example, you had a life insurance policy which paid out £3,000,000 on your death which wasn't in trust, then a 40% Inheritance Tax charge might be due on this, which could amount to £1,200,000. However if you had ten £300,000 policies, and ten Pilot Trusts set up on the different days, and the pay out to the trustees of the Pilot Trusts for each policy were all made on different days then it could be the case that no inheritance tax is due immediately, and there will potentially be no 10 year period charge or exit charge depending on the balance and withdrawals relative to the Nil Rate Band at the time.

What are the Protective Benefits of a Pilot Trust?

When a Pilot Trust is set up, the person setting up the Trust will be the Settlor. The Settlor can write a letter of wishes.

They will also appoint trustees who will oversee managing the assets of the trust and deciding on when assets might be distributed or loaned to potential beneficiaries. They can also allow income to be received by potential beneficiaries too.

Decisions will be based on the trust wording, and the letter of wishes. The Settlor can be a trustee, as can the beneficiaries, but it is important that the trustees can act impartially.

Whilst the assets are in the trust, they are not owned by the beneficiaries, but are instead held for the beneficiaries. This has the following benefits:

If a beneficiary dies, then no part of the Pilot Trust forms part of their estate and will not be distributed in accordance with their Will or the laws of Intestacy if no Will is made. However, the beneficiaries' spouse and children will be beneficiaries of the trust and can receive assets if agreed by the trustees in accordance with the trust deed, and your letter of wishes.

If a beneficiary goes into residential care, then the assets in the Pilot Trust will not normally be assessed for care home fees. The trustees can however use some funds to enhance the level of care provided to the beneficiary over and above the amount the local authority will pay.

If a beneficiary gets divorced, then the assets in the Pilot Trust will not form part of the divorce settlement as the assets do not belong to the beneficiary.

If a beneficiary is made bankrupt, then the assets in the Pilot Trust will not have to be used to clear the bankruptcy, but the trustees can choose to do so, should it be the right decision in their opinion.

What else do I need to know about Pilot Trusts?

When a Pilot Trust is set up, it needs to have a nominal amount transferred to the Trustees. This is usually £10 and is usually attached to the Trust Deed.

If a gift is to made by Will to an existing Pilot Trust, it must be set up before the Will is executed. It is important that any Trust is created. Of course, a codicil can be executed, or a new Will drafted.

There are circumstances where a Pilot Trust might have disadvantageous tax advantages if you die after the age of 75 and the proceeds come from a Self-Invested Pension Plan (SIPP). It is important that you seek advice on this from a pension advisor.

There is a 10 year periodic review on Pilot Trusts to see if any inheritance tax is due. The review date is based on the date the pension or life insurance policy was started, not the date the Pilot Trust was created or added to. If you have multiple pension plans, it is a good idea to have one Pilot Trust for each policy, so that you do not have multiple 10 year anniversary dates for a Trust.

Assets can be added to a Pilot Trust however, it is important to note that these are treated as separate to the payment from the Pension or Life Insurance Policy and will have separate anniversary periods based on the date added. Also, apart from the initial transfer, you should not add to a Pilot Trust until after the gift from the life insurance policy or pension plan is made to the trustees.

How can I set up a Pilot Trust?

The Goodwills head office legal team has long term experience of creating Pilot Trusts. Speak to Goodwills wo can put you in contact with your local Estate Planning Practitioner or Independent Financial Advisor. Call us on 01234 802 391 or email at info@goodwills.net for further details.

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Pilot Trusts | Goodwills Legal Services Ltd

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You would first need to check to see if the policy can pay the lump sum to a Pilot Trust. You would then need to arrange for the Trust or Trusts to be set up.

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Home Protection Trusts - Goodwills Legal Services Ltd

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Home Protection Trusts - Goodwills Legal Services Ltd

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Home protection trust by Goodwills Legal Services Ltd allows your property to be sold after your death before a costly and time consuming Grant of Probate needs to be obtained. Visit the website for more details.

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It is a fact of life that the divorce rate is increasing and if your children (or beneficiaries) get divorced, your home could be included in a divorce settlement and lost to future generations of your family.

If one of your children died, your home could pass to their spouse and so not to your other children or grandchildren.

As much as you love your children and grandchildren, they or their spouse may be a spendthrift and your home, for which you've worked so hard, could be sold to pay off their creditors.

There could be a liability in Capital Gains Tax if your home increases in value after you have given it away.

There could be a difference of opinion between your children.

The Goodwills Home Protection Trust can help prevent these problems from arising, whilst helping to ensure your property is protected for your loved ones. Additionally, the Home Protection Trust allows your property to be sold after your death before a costly and time consuming Grant of Probate needs to be obtained. A consequence of setting up a Home Protection Trust is that, in certain circumstances, assets held within the Trust may be protected from the impact of long term care home fees.

Who can set up a Home Protection Trust?

Any homeowner(s) can set up a Home Protection Trust as long as they enjoy full 'mental capacity' at the time of signing the Trust, which means that you must have a complete understanding of the Trust and the documents you are signing. Ideally, homeowners must not have a mortgage or charge on their home - if you do, then please speak with us prior to your application.

How the Home Protection Trust works

The Home Protection Trust is a legal transfer of your home into a Trust, which is managed by your chosen Trustees in accordance with the Trust document. It is therefore essential that you pick Trustees who shall act in the best interests of the beneficiaries (you may also appoint yourselves as Trustees). Most people pick their children or close family members to be Trustees of their Home Protection Trust. The Trust lists potential beneficiaries who can benefit from the Trust and these would typically include yourselves, your children and grandchildren, and any other people who you might wish to benefit should your immediate family not survive you.

The Trust gives you the right to live in the house for the rest of your lives and also gives you the right to downsize or move home, should you wish to do so in the future. Subject to you having a life interest in the house until your death, your home is held within a 'discretionary Trust'. A discretionary Trust has potential beneficiaries such as your children and grandchildren but they do not receive anything from the Trust unless the Trustees agree to this (though they may, of course, be Trustees themselves).

The Home Protection Trust can run for up to 125 years, so when you no longer wish to live in your property or have died, the Trustees will then make a decision as to whether the home should be sold and the Trust wound up, or that the Trust should continue. The Trustees will be guided by the Trust document as to whom, and in what shares, beneficiaries should receive the capital of the Trust.

One advantage of Trustees being given the right to continue the existence of the Trust is that if a beneficiary is going through divorce, the Trust assets do not need to be transferred to them until the divorce has been completed (otherwise, they may well form part of the divorce settlement and so be lost from the family). Your home is effectively held by the Trustees and does not automatically belong to any of your children after your death. Therefore, the value of the house will also not be considered if they go through a bankruptcy or require recourse to state help, such as disability or employment support benefits.

The Benefits

If you should remarry, any Will that you have made would be revoked and if you died, your assets could become the property of your new spouse and subsequently pass to their children. The Home Protection Trust offers assurance that your property will remain within your family.

If your children get divorced, your property could form part of the financial settlement. The Home Protection Trust ensures that because the assets are held in a Discretionary Trust, they cannot form part of the settlement as no beneficiary has an absolute right to the assets of the Trust (although it may be a factor taken into account).

If your children die prior to their spouse, your property could form part of the survivor's Estate and could then pass outside your family. The Home Protection Trust ensures that because the assets are held in a Discretionary Trust, they cannot form part of the survivor's Estate and only your nominated beneficiaries (eg. children and grandchildren) can benefit.

If your children become bankrupt, their creditors could take your property to repay the debts. The Home Protection Trust ensures that because the assets are held in a Discretionary Trust, they cannot be included in any bankruptcy settlement since no beneficiary has an absolutely right to the assets of the Trust (although it may be a factor taken into account).

If any of your children or grandchildren were unable to effectively manage their affairs due to vulnerability for health, addiction or social reasons, then the Home Protection Trust would protect your assets, as the Trustees could choose not to give the vulnerable beneficiary money at a time when it could place them in harm's way. Likewise, if one of your children or grandchildren are or were to become disabled, the capital of the Trust would not be considered in terms of assessing whether they are eligible for state aid or benefits.

Home Protection Trusts also provide a great advantage during Probate, as no Grant of Probate is required if the house needs to be sold straight away. Usually, before a house can be sold, Probate needs to be granted, which is a part of a process that can cost thousands of pounds. If you need any assistance with Probate, either now or in the future, please contact Goodwills Legal Services Ltd or your adviser directly, as we are able to carry out Estate Administration work for highly competitive fees.

Frequently Asked Questions
Am I still in control?
Yes, it is important that you remain in control and are involved in any decisions involving the Trust. Therefore, the Trust ensures that your permission is necessary prior to any decision being made.
Can we move home?
Yes, you are able to move home should you wish to do so. Your home can be sold and a new one purchased in the name of the Trust.
Who will be the Trustees?
Trustees should be people you Trust; it is normal for adult children or trusted adult family or friends to be Trustees. You are also able to appoint yourselves as Trustees, although others will of course need to be appointed alongside you. You should appoint between two and four Trustees.
How will my Trustees know what my wishes are after my death?
You can write a Letter of Wishes that will explain to your Trustees your intentions with regard to the property for after your death. If you opt for our Storage and Maintenance services, we will safely store this alongside the Home Protection Trust document.
Will there be any tax to pay?
Home Protection Trusts are not tax saving devices but they are tax neutral, and so do not lead to any extra tax needing to be paid. Provided that less than the value of the Nil Rate Band is put into the Trust, there will be no inheritance tax to pay and no Stamp Duty Land Tax to pay. Capital Gains Tax will not be payable on any increase in value which would not be the case if your children owned the property themselves.

The new Residential Nil Rate Band means that the amount that can be given by a married couple to children or grandchildren free of inheritance tax has increased, in the right circumstances, to £850,000 and is due to increase incrementally up to £1,000,000 in 2021 (it is half these amounts for an individual). If you need further information regarding the tax implications of setting up a Home Protection Trust, or otherwise, please do not hesitate to contact your adviser directly.
Can I put a property other than my main residence into a Home Protection Trust?
For tax reasons, it is not generally advisable to put a home into a Home Protection Trust unless it is your primary residence. If you are considering doing this, please contact your adviser directly for further information.
Can I add other assets to the Home Protection Trust?
Yes, although the Home Protection Trust is primarily to protect your home, you can add other assets to the Trust. Please seek your adviser's advice should you wish to do so.
Will the Home Protection Trust protect my home from long term care fees?
The primary objective of the Trust is to protect your home from future events involving your beneficiaries, and to allow your property to be sold after your death before a Grant of Probate has been obtained. Depending on your circumstances, however, a Property Trust may also protect your home from your future creditors such as your local authority. The Home Protection Trust is not a guaranteed solution for protection from long term care fees.
Who will deal with the legal work on my case?
The legal work relating to your Home Protection Trust will be carried out by Goodwills Legal Services Ltd, which is a regulated and fully insured law firm.
How much does the Home Protection Trust cost?
The price varies depending on your circumstances and value of your home - please ask your adviser directly for an exact quote. Goodwills always offers a highly competitive price for all Trust services, including Home Protection Trusts.
I want to proceed- what next?
In order to start work on drafting and establishing the Home Protection Trust, we will need to gather some further information. Your adviser will assist you in completing an application form and gathering the required information. We will also need to see ID documents from yourself and also your Trustees, as the work involves a Land Registry transfer and so verification of identity is required for compliance purposes.

Goodwills Legal Services Ltd will allocate a dedicated "case officer" to deal with your work, whose role will be to ensure the efficiency of the process, to liaise with you on any additional information they may need and to answer any further questions you may have.
Information about Long Term Care Home fees
One person in four will spend time in long term care - a ratio that is likely to increase as the population continues to age in the future. Since the introduction of the Community Care Act 1990, thousands of Estates have been wrecked through having to pay the cost of care fees. Over 500,000 people are currently resident in nursing and residential care homes and less than half of these are cared for by the local authorities. It is currently estimated that around 70,000 homes are sold each year to fund these care costs. The cost of care often exceeds £1,000 per week and, in some areas of the country, costs can reach as much as £2,000 per week. Your children will see their inheritance disappearing week by week and they may inherit as little as £13,000.

Currently, anyone with over £23,250 of assets has to pay the full costs of their care home fees, and over one in ten ends up spending over £100,000. Even those with assets valued at between approximately £13,000 and £23,250 still need to make a 100% income contribution and a partial contribution from their capital. Even those with under £13,000 of assets must still contribute all of their income towards their care home fees, which includes income from all sources, including pension, state benefits and any other income.

The Home Protection Trust is primarily a solution for Estate Planning issues but may also protect the capital value of your assets from being used to fund long term care home fees, provided that it was set up for other reasons, and it was not reasonably foreseeable that you would enter long term care.

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Home Protection Trusts | Goodwills Legal Services Ltd

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It is a fact of life that the divorce rate is increasing and if your children (or beneficiaries) get divorced, your home could be included in a divorce settlement and lost to future generations of your family. If one of your children died, your home could pass to their spouse and so not to your other children or grandchildren.

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Asset Preservation Trusts - Goodwills Legal Services Ltd

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Asset Preservation Trusts - Goodwills Legal Services Ltd

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Goodwills Legal Services Ltd can draft the asset preservation trust into your wills and ensure that your wealth and property will cascade down the generations of your family. Visit their website for more details.

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When her husband dies, the assets will pass to his own family and not to Mr and Mrs Greens children. Clearly, this is not fair and certainly not what Mr and Mrs Green would have wanted.

Even if Mrs Green makes a new Will after her remarriage, she may subsequently divorce, which could put half of the property at risk of being lost in the divorce proceedings. This loss of (part of) the house in the divorce of course means that the property will never pass to the children.

Divorce - The Problem

We all hope that our children (and grandchildren) will make good marriages but, with around 40% of marriages ending in divorce, it is important to at least consider the possibility of divorce. When your children inherit your estate, a future divorce settlement would take that settlement into account and your hard-earned assets could become the property of an ex-spouse.

Bankruptcy of beneficiaries - The Problem

If your children suffered bankruptcy, their inheritance could be considered by the court as an asset to be included in a settlement with their creditors effectively ending the cascade of your wealth through to future generations.

Long Term Care Fees - The Problem

Since the introduction of the Community Care Act 1990, thousands of estates have been wrecked by the imposition of paying for Long Term Care fees. Around 480,000 people are resident in nursing and residential care homes; less than 20% of these are cared for by the Local Authorities, families are paying the cost either directly or through the loss of their inheritance. It is currently estimated that around 70,000 homes are sold each year to fund Long Term Care fees which could be as high as £2,000 per week (with £1,000 per week now being the nationwide average). The children will see their inheritance disappearing week by week and they may inherit as little as £13,000.

The Solution - Asset Preservation Trust

Goodwills can draft an Asset Preservation Trust in your Will and when the first dies, their assets are held in a protective trust. The trustees may be the surviving spouse and adult children or a trusted family member; this means that you and your family remain in control. The trust gives the surviving spouse an absolute right to live in the home and a life interest in all the other assets; this means that they have an indefeasible right to the income produced and if they do require capital, the trustees can simply make cash advancements.

If the surviving spouse remarries, the assets held in trust are not part of their estate and remain in the trust to pass to the children when the survivor dies.

Upon the second death, all of the family's assets pass to a 'discretionary trust' with the children as the discretionary beneficiaries. This means that if they should divorce, the inheritance is protected from the ex-spouse. Similarly, in the event of bankruptcy, the inheritance is protected from creditors.

In the event that one of the beneficiaries is considered as a 'vulnerable person', the trustees shall hold 'their share' in trust to ensure that their inheritance is not squandered or cause them harm.

If the surviving spouse goes into Long Term Care, the local authority cannot take into account any assets there are held in trust; they can only take into account income and assets outside of the trust. The local authority is likely to disregard the value of the property altogether but you can be certain that at least half of your estate is protected for your children to inherit. The surviving spouse may sell the house and move to another property; in effect nothing changes.

Inheritance tax planning

Although lifetime gifts are tax efficient, it is difficult to know how much to gift to your children whilst you are both living. After the first death, the survivor may decide that the income they are receiving is in excess of what they need; they may surrender their life interest in any part of the trust assets (Potentially Exempt Transfers) and this will be free from Inheritance Tax as long as the surviving spouse lives for 7 years: on average, widows live for 9 years. Even if the surviving spouse dies before 7 years has elapsed, Inheritance Tax is saved on a pro rata basis, so that if they survived for 6 years, 80% of the tax liability would still be saved.

Your children's estates may have a liability to Inheritance Tax when assets pass to their children. Your children are not compelled to take the full inheritance into their own estates but only what they need, or more likely, borrow what they need from the trust and create a 'friendly debt' on their estate which will be paid back to the trust upon their death thereby avoiding any liability to Inheritance Tax. The Asset Preservation Trust may run for up to 125 years after the first death. There may be a Periodic Charge every 10 years on assets in excess of the Nil Rate Band.

How we set up the trust

The effectiveness of the Asset Preservation Trust relies on you owning your joint assets as 'tenants in common; if your home is owned jointly, (as more are), we will register a 'severance of tenancy' with the Land Registry so that each of you owns half of the property. If you own capital assets jointly, we will draft an agreement stating that your assets are owned as 'tenants in common'; none of this actually affects you.

Only when the first dies is the trust actually set up (which is known as being 'settled'). Upon the second death, the trustees may end the trust and settle the assets upon the beneficiaries (your children) or they may continue the trust for up to 125 years, this will ensure the protection of the assets from divorce, bankruptcy and vulnerable beneficiaries and mitigate future Inheritance Tax Liabilities.

Summary of the main benefits of the Asset Preservation Trust

Assets are protected from Remarriage

Assets are protected from Divorce of Beneficiary

Assets are protected from Creditors

Assets are protected from Vulnerable Beneficiaries

Assets are protected from Long Term Care fees

Assets are protected for Future Generations

Enables IHT planning for Future Generations through 'friendly debts'

Spouse can be given Cash Advancements or Loans

Spouse can make Potentially Exempt Transfer to avoid IHT

Goodwills Asset Preservation Trust is a vital element of Estate Planning for couples who own their home or have significant assets.

The Asset Preservation Trust must be put in place prior to the first death.

Goodwills can draft the Asset Preservation Trust into your Wills and ensure that your wealth and property will cascade down the generations of your family.

This information is based upon our understanding of revenue practice at the time of issue.

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Asset Preservation Trusts | Goodwills Legal Services Ltd

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When her husband dies, the assets will pass to his own family and not to Mr and Mrs Greens children. Clearly, this is not fair and certainly not what Mr and Mrs Green would have wanted.

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Nil Rate Band Trust - Goodwills Legal Services Ltd

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Nil Rate Band Trust - Goodwills Legal Services Ltd

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Nil-rate band discretionary trusts of Goodwills Legal Services Ltd are used by estate-planners to reduce liabilities to pay inheritance tax on the death of surviving joint proprietors. Visit the website and get more details.

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What's a Nil-Rate Band Discretionary Trust?

Nil-rate band discretionary trusts are used by estate-planners to reduce liabilities to pay inheritance tax on the death of surviving joint proprietors.

They're usually appropriate if residential property prices exceed the inheritance tax threshold. And they can avoid the need to sell family homes.

Nil-rate band discretionary trusts can protect assets intended for specific beneficiaries, such as children from earlier marriages, if the survivor remarries.

They also protect assets otherwise liable to means-testing if survivors need long-term care, or are at-risk if survivors encounter financial difficulties.

Can the Man-on-the-Street Create a Nil-Rate Band Discretionary Trust?

There are lots of opportunities for DIY law. But Nil-Rate Band Discretionary Trusts are not amongst them. Lay down and avoid them. Better still, get a proper solicitor like somebody from Goodwills. Because, although Nil-Rate Band Discretionary Trusts are a great opportunity to duck some inheritance tax, are mind-bendingly difficult to comprehend.

How Does a Nil-Rate Band Discretionary Trust Work? It's Complex. It is Beyond Complex. But We'll Try to Explain

There are 2 routes. The trust can be:

Created before the 1st joint proprietor dies

Created after the 1st joint proprietor dies (but everybody pretends it's actually created before the 1st joint proprietor dies).

Let's look at these 2 processes and see if we can pin down how each operates.

The Process if it's created before the 1st Joint Proprietor Dies

If significant property destined for the trust isn't already held as 'tenancy in common' then the proprietors sever their joint tenancy

Spouses / civil partners make wills leaving bequests equal to the value of an individual's inheritance tax exemption (the 'nil-rate band')

On the 1st partner's death that would not go to the surviving partner but to the trust

It is actually then held for discretionary beneficiaries such as surviving partners, children and grandchildren

Often surviving partners benefit by receiving discretionary payments or loans from the trust

When surviving partners die property held under the trust doesn't class as part of their estate

The surviving partners' beneficiaries avoid the inheritance tax normally payable on property values.

The Process if it's created after the 1st Joint Proprietor Dies

After that 1st death the surviving partner and their family create a 'deed of family arrangement'

They need to do it within 2 years of that 1st death

The deed 'varies the disposition' of the property in the deceased's estate that has already taken place at the time of the death

In effect history is rewritten so the scheme is put in place as if the trust had been created before the death of the 1st joint proprietor

Under section 142 of the Inheritance Tax Act 1984 everybody acts as if this were the case

This permits the legal avoidance of inheritance tax savings.

If All of That Seemed Simple

If all of the above seemed to be simple, then there's more. Because there are a whole series of complications which start with the admittance by the British Government that nil-rate band discretionary trusts are a legitimate manipulation of tax law but they can contravene property law and create problems with the land registry. See www.gov.uk/government/publications/nil-rate-band-discretionary-trusts/practice-guide-70-nil-rate-band-discretionary-trusts#five-severance

A Wonderful Insight into HMRC's Sense of Humour

If anyone doubts the value of able solicitors like those at Goodwills they should read this wonderful piece on HM Government's website at www.gov.uk/government/publications/nil-rate-band-discretionary-trusts/practice-guide-70-nil-rate-band-discretionary-trusts#five-severance where they write, with no hint of irony:

'Confusion results because:

practitioners confuse B's capacities. B at this point is holding the legal estate in the land as sole trustee. B is holding their own equitable interest absolutely. B is also A's personal representative holding A's equitable interest under the will trust. B can do some things in one capacity and some things in another. What B cannot do, if a Form A restriction has been entered in the proprietorship register, is charge the legal estate if capital money arises (because B is still sole trustee of the land trust)

B can, if empowered to do so by the terms of the trust, charge the beneficial share they are holding as personal representative. This is a charge of an equitable interest. It cannot be registered. It cannot be noted in the register. It is of no interest to HM Land Registry except to the extent that its existence means that the legal estate is held under a trust of land that warrants the entry of a Form A restriction if one is not already registered

If B, as personal representative of A, assents to the share, this assent is of no interest to HM Land Registry. It is not of the legal estate. It cannot be registered or noted. However if the share is assented to B and, as a result, B becomes entitled to all of the beneficial interest under the land trust free from any encumbrances created by A prior to death or by B, B can apply to cancel any Form A restriction as there are no beneficial interests and B is entitled to the legal estate absolutely. B may also apply to withdraw any restrictions in Form B or along the lines of Form N, as the trust has ended

If B, as personal representative of A, charges the beneficial interest held in A's estate and then assents to the share, again this assent is of no interest to HM Land Registry. It is not of the legal estate. It cannot be registered or noted. However, in this case the trust has not ended because as long as the encumbrance exists on the share, there is a trust of land. There has been no unencumbered unity of beneficial interests with the legal estate. B cannot apply to cancel any Form A restriction'

Where Can You Find Out More about Nil-Rate Band Discretionary Trusts?

You can find out more on nil-rate band discretionary trusts at Goodwills though the HMRC website will tell you a lot at www.gov.uk/government/publications/nil-rate-band-discretionary-trusts/practice-guide-70-nil-rate-band-discretionary-trusts#trust-death. All in all, you'd surely be better off if you just hire Goodwills.

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NIL-RATE BAND DISCRETIONARY TRUSTS | Goodwills Legal Services Ltd

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Nil-rate band discretionary trusts are used by estate-planners to reduce liabilities to pay inheritance tax on the death of surviving joint proprietors. They're usually appropriate if residential property prices exceed the inheritance tax threshold. And they can avoid the need to sell family homes.

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Disabled Person's Trust - Goodwills Legal Services Ltd

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Disabled Person's Trust - Goodwills Legal Services Ltd

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Goodwills Legal Services Ltd knows how to overcome the technical complexities which are involved in order to help clients take advantage of those tax-breaks for disabled persons. Call 0345 222 0022 and find out more on disabled persons’ trusts.

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We should be clear on who the HMRC considers to be a disabled - or vulnerable - person. And they're this:

Somebody who, due to a mental disorder recognised by the Mental Health Act 1983 (this includes Alzheimer's and other forms of dementia, bipolar disorder, schizophrenia, depression or other mental illness, autism aka 'pervasive developmental disorder', or a learning disability g. Down's syndrome), can't administer their property or manage their affairs, or

Somebody receiving attendance allowance, disability living allowance (high / middle care or high mobility), personal independence payments, an increased disablement pension (under s104 SSCBA 1992 or s104 SSCBS[NI]A 1992), constant attendance allowance or an armed forces independence payment.

That's from the HMRC handbook. See www.gov.uk/hmrc-internal-manuals/trusts-settlements-and-estates-manual/tsem3421. Yet actually it's more complex than this (one good reason to use a competent solicitor like somebody at Goodwills). Because it also includes:

Somebody who is entitled to, but is not actually receiving, attendance allowance, disability living allowance (high / middle care or high mobility), personal independence payments, an increased disablement pension (under s104 SSCBA 1992 or s104 SSCBS(NI)A 1992), constant attendance allowance or an armed forces independence payment.

You can find this at www.gov.uk/trusts-taxes/trusts-for-vulnerable-people. And here you will also find that there is always going to be a lot of discussion whether a brain injury or disabilities such as Parkinson's disease might class as, or have repercussions that result in, mental illness. But the definition of 'vulnerable people' anyway goes well beyond those with disabilities. Vulnerable people, for example, would also include orphaned minors.

There are other anomalies. And these actually enable the disabled to qualify even if they are not resident or present in the UK, have kidney failure and are in hospital with it, or they're in a care-home paid for from the public purse.

So, self-evidently, it's easy for the regulations to be misinterpreted. This sort of complexity explains why it's worth going to a solicitor e.g. somebody at Goodwills. They are expected to know - or ascertain - the minutiae of entitlements.

Are All Disabled People Treated Equally?

No. Because, if the truth be told, administrative burdens would overwhelm some disabled people just as they overwhelm their able-bodied counterparts.

Disabled persons' trusts can often be run by the beneficiaries themselves if the disability or disabilities are purely physical. Yet if the disability is mental then usually the trust will be operated instead by reliable friends and relatives.

What is the Process Involved in Claiming Special Tax Treatment Because of a Disability?

The appointed trustees need to complete and sign what is called a 'vulnerable person election' form if they want to claim special treatment on behalf of a disabled beneficiary who must sign it too.

Yes you could do this online yourself. But HMRC doesn't make it easy. For example you cannot save a half-completed form. So you might well run up against questions for which you don't know the answers. And then you stand to lose everything you've already entered into the system.

Any special treatment might come in the shape of capital gains tax, income tax or inheritance tax. We cannot explain here precisely how that might pan out because the formulae are complex and the calculations difficult. Assuming the special treatment is sanctioned then the entitlement would be a rolling one but, should the beneficiary die or overcome their disability in some way, the trustees have a legal responsibility to promptly inform HMRC.

Why is HMRC being so Generous to Disabled People?

In all fairness, the tax-breaks which HMRC gives are intended to assist the trust to hold on to all the cash that it has. But that has the end-result of avoiding the disabled person being a liability to, and a burden on, the state. So there is a certain amount of self-interest involved.

Where Can You Find Out More about Disabled Persons' Trusts?

You can find out more on disabled persons' trusts at Goodwills though the HMRC website will tell you a lot at www.gov.uk/hmrc-internal-manuals/trusts-settlements-and-estates-manual/tsem3421. Self-evidently this really is technically complex so, whilst disabled persons' trusts are a great idea, anyone who is even thinking of setting one up should avail themselves of the expert help that's available (maybe both solicitors and accountants) and which should be considered to be indispensable.

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DISABLED PERSONS' TRUSTS | Goodwills Legal Services Ltd

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We should be clear on who the HMRC considers to be a disabled - or vulnerable - person. And they're this: Somebody who, due to a mental disorder recognised by the Mental Health Act 1983 (this includes Alzheimer's and other forms of dementia, bipolar disorder, schizophrenia, depression or other mental illness, autism aka 'pervasive developmental disorder', or a learning disability g.

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How Long Does It Take To Get Probate - Goodwills Legal Services Ltd

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How Long Does It Take To Get Probate - Goodwills Legal Services Ltd

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Once the application for a Grant of Probate has been made, it usually takes in the region of 2 – 4 weeks for the sealed Grant of Probate to be returned by the Court. Visit the website to know about the probate duration.

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How long does usually it take to Obtain a Grant of Probate?

Once the application for a Grant of Probate has been made, it usually takes in the region of 2 - 4 weeks for the sealed Grant of Probate to be returned by the Court. It is important that the application is made properly, as if there are errors or issues in the application, then this will inevitably lead to delays (and sometimes lengthy delays!). For this reason, we always recommend that Professionals are used. Goodwills Legal Services is a law firm specialising in Probate and we are able to assist with your application; we can be contacted on 01234 802 391 / 0345 222 00 22 or by email at info@goodwills.net

How long does it currently take to obtain a Grant of Probate after an application as been made (as at 24th May 2019)?

The Probate Registries are currently very far behind in terms of processing Grant of Probate applications. It is currently taking the Probate Registry three months or more to return Grants of Probate after application.

This is causing significant problems for those who wish to sell houses or who have important Trust work to be undertaken. It is also causing issues for those who need their inheritances urgently, perhaps to buy their own house or to settle their own debts.

In some cases, applications can be sped up and, if you wish to ensure your application is dealt with as quickly as possible, then contact us.

Why are the Probate Registries currently delayed?

The delays at the Probate Registry are caused by two different issues that have coincided to create a very long wait for those who are applying for Probate.

The first reason for the Probate delay, is that the Court Fees are due to rise significantly for some Estates, which means that the Probate Registries have received a very large amount of applications. This has naturally led to a significant backlog but this has been compounded by a second reason, as noted below.

The second reason for the Probate delay is that the Probate Registries have introduced a new electronic Grant of Probate. As is so often the case when the government introduces a new system, there is a significant teething process that is causing further standstills at the Probate Registries.

When are the Probate Registries likely to resume their normal service and timescales?

Unfortunately, nobody knows when the Probate Registries will be back to their usual timescales of 2 - 4 weeks. We would therefore recommend that all applications are made as swiftly as possible, especially if there is a house sale involved. Probate is something that Goodwills specialises in and, if you would like further information, then just get in touch.

Do the Probate delays affect Intestacies too?

The current Grant of Probate delays do also affect intestacies, as Letters of Administration are also dealt with at the same Probate Registries that deal with Grants of Probate. We therefore also recommend that if you are dealing with a loved one who died intestate that you get in touch.

Does Goodwills Offer a Probate Services?

Goodwills offers a comprehensive and competitively priced Probate Service. If you would like any further information regarding Probate, then just get in touch with a friendly member of our team on 01234 802 391 or at info@goodwills.net

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HOW LONG DOES IT TAKE TO GET PROBATE? CURRENT PROBATE DELAYS | Goodwills Legal Services Ltd

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Once the application for a Grant of Probate has been made, it usually takes in the region of 2 - 4 weeks for the sealed Grant of Probate to be returned by the Court. It is important that the application is made properly, as if there are errors or issues in the application, then this will inevitably lead to delays (and sometimes lengthy delays!).

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Contentious Probate - Goodwills Legal Services Ltd

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Contentious Probate - Goodwills Legal Services Ltd

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If a deceased’s will has been challenged, or if you wish to make a challenge yourself, then Goodwills Legal Services Ltd can help. Their probate solicitor will advise on the pros and cons of the options available regaring the issue. Visit the website to know more about them.

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A family member may be unhappy with provision made for them if it was not mentioned in the will but was certainly spoken of by the deceased (this touches on what is known as 'promissory estoppel')

A child or adoptive child might actually have an entitlement as a minor, under the Inheritance Act of 1975, But they may not be mentioned or properly provided for in the will (actually lots of relatives might fall into this bracket)

There could be more than one will

There may be some query about the validity of a will (e.g. the witnessing of the will-maker's signature) or allegedly-negligent will-drafting

There might be grounds for questioning the sanity of the will-maker, or what is called 'testamentary capacity', possibly if that's evidenced by the provision(s) they made in the will (e.g. they might leave millions to their hamster)

There could be a suspicion of foul-play such as forgery or a claim that the will-writer was under undue influence from others

Disputes can arise if the personal representation, the executor, might not be acting in a way which is considered by all parties to be correct

There might be a query over the estate administration if, for instance, a bank has naively disposed of properties at below-market-value because their administration is more irksome than it is to hold cash

A claim that an asset was actually not entirely the will-maker's to give away (this is referred to as 'constructive trust').

Why Speed is of the Essence if Something Seems Amiss with a Will

After a death, after a funeral, the will is usually read. And this may be the first intimation that something may be wrong. And, of course, thereafter the executors will be entitled to just get on with the job of distributing the assets according to the terms of the will. So speed is of the essence if the will is to be challenged.

How Do You Start to Challenge a Will? Get a Copy. Then Enter a Caveat.

Even if you are going to use a good solicitor like somebody from Goodwills, and contentious probate is a specialist area of the law so it is recommended, you might want to organise yourself quickly so you can speak with a copy of the disputed will in your hand. You can get that copy from the Probate Registry, the General Register Office or the Probate Ministry (the latter will only apply if a 'Grant of Representation' has been taken out - a 'Grant of Representation' can also be referred to as 'Letters of Representation' and even a 'Grant of Probate', but essentially it will be issued to somebody who is deemed to be the legitimate administrator). If you're challenging the will you're unlikely to be its executor, and if you're the executor then you'll probably already have a copy of the will, but we are trying to cover all bases here.

Then you - and really you should use a solicitor for this - need to 'enter a caveat' (which amounts to an objection that stalls execution of the will) with the Probate Registry. This action will prevent a 'Grant of Probate' being taken out for 6 months. And it can be extended for a further 6 months. So the deceased's assets will go nowhere (legally at least) until questions are answered about the legitimacy of the will.

What Happens Then?

The executor and the person who has entered a caveat then need to settle their differences. If they can. The caveat can only be removed by a registrar if the dispute is resolved. Otherwise the matter will go to court. Or, alternatively, to mediation. The latter can save a fortune. And has other advantages. A good solicitor will advise on the pros and cons of the options.

Where Can You Find Out More about Contentious Probate?

You can find out more on contentious probate at Goodwills though the National Will Register's website will tell you a lot at www.nationalwillregister.co.uk/contentiousprobate.aspx. Alternatively you could see the Law on the Web site at www.lawontheweb.co.uk/personal/contested-wills. Though, all in all, you'd surely be better off if you just hire Goodwills.

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Contentious Probate | Goodwills Legal Services Ltd

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A family member may be unhappy with provision made for them if it was not mentioned in the will but was certainly spoken of by the deceased (this touches on what is known as 'promissory estoppel') A child or adoptive child might actually have an entitlement as a minor, under the Inheritance Act of 1975, But they may not be mentioned or properly provided for in the will (actually lots of relatives might fall into this bracket) There could be more than one will There may be some query about the validity of a will (e.g.

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Lasting Power Of Attorney for Health and Welfare - Goodwills Legal Services Ltd

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Lasting Power Of Attorney for Health and Welfare - Goodwills Legal Services Ltd

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LPA by Goodwills Legal Services Ltd let donors make the necessary arrangements for one or more of their relatives for health & welfare to make and execute sensible decisions on the behalves of donors. Call 0345 222 0022 for more details.

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An LPA lets those donors make the necessary arrangements for one or more of their relatives (they consequently become the donor's 'attorney' or 'attorneys') to make and execute sensible decisions on the behalves of donors. All LPAs are regulated by the Office of the Public Guardian (OPG) and that body, in turn, falls within the auspices of the Home Office. Even more reassuringly, if something went awry then the Financial Services Ombudsman has powers to investigate and intervene. So there is a comprehensive raft of safeguards to protect the best interests of donors.

Clearly such LPAs might take effect where a loss of facilities is anticipated (for example where the donor has been diagnosed with premature senile dementia). Or they can take effect where that compromised capacity would be entirely unanticipated (for example where the donor is left on life-support and/or in a coma after an RTA, an ischaemic attack or a life-saving emergency intervention).

Importantly slightly different rules apply in both Scotland and Northern Ireland. Yet for an LPA to be drawn up here in the UK a donor need not be resident or even be British. Importantly a donor can adjust or terminate an LPA, if they are up to the task, using a 'partial deed of revocation' or a 'deed of revocation' respectively.

A Health and Welfare Lasting Power of Attorney (LPA)

An LPA gives an attorney powers only if you're definitely already unable to make decisions (this is where it is slightly different from an LPA apropos just money and property - one that kicks in as soon as it's been drawn up). The attorney's decisions and actions for a health and welfare LPA may well include:

Deciding on your daily routine in respect of getting you washed, dressed and fed

Deciding, with healthcare professionals, on your medical care

Deciding on if you should be moved into care or a hospice

Deciding, with healthcare professionals, on whether you should be given life-sustaining treatment or if it should be withdrawn.

Could LPAs be Misused When Donors are Still Perfectly Competent?

That's unlikely.

The MCA specifies numerous safeguards to prevent accidental misuse - or indeed wilful abuse - by any attorney. Critically there are 5 fundamental principles which boil down to questions that should be asked of the donor's intellectual capacity before any LPA is executed:

It's assumed that the donor's capable until it's clear that they aren't

Donors mustn't be judged incapable until every reasonable effort to include them in decision-making processes has failed

Poor decisions made historically by donors don't automatically prove they're subsequently unable to make sound decisions

All attorney decisions must self-evidently be made in the best interests of donors

All decisions or acts under LPAs must respect, where practicable, donor rights and each donor's entitlement to freedom of action.

In Extremis, What is the Acid Test for Whether or Not I've Lost My Faculties?

Self-evidently decisions apropos donor capacity may easily be considered to be objective when, in fact, they're actually subjective. Yet in the event the question usually asked of donors is decision-specific. That is something like: 'Would this donor be safe if we left them, on their own, to light and use a gas hob?' Usefully the MCA says this approach is 'a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time'.

What Could Possibly Go Wrong?

Unfortunately quite a few things can, and do, routinely go wrong. And they may be nobody's fault. Matters would be complicated if, for example, a single attorney died before the donor did. That's why you ought to talk to Goodwills. Our solicitors don't have second sight but we do have the next-best thing - vast hands-on experience of LPAs that enables them to anticipate an array of statistically-likely scenarios and so that they can dispense professional advice accordingly.

Where Can You Find Out More About LPAs?

You can find out more on LPAs at Goodwills though the government website will tell you a lot at www.gov.uk/power-of-attorney.

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Health and Welfare Lasting Powers of Attorney (LPAs) | Goodwills Legal Services Ltd

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An LPA lets those donors make the necessary arrangements for one or more of their relatives (they consequently become the donor's 'attorney' or 'attorneys') to make and execute sensible decisions on the behalves of donors. All LPAs are regulated by the Office of the Public Guardian (OPG) and that body, in turn, falls within the auspices of the Home Office.

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Family Trusts - Goodwills Legal Services Ltd

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Family Trusts - Goodwills Legal Services Ltd

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Safeguard the interests of your family with the family trusts services of Goodwills Legal Services Ltd. The firm performs a raft of functions including immediate access to funds; prevent the cashing-in of assets, forward planning, and much more. Visit the website for more details.

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The intended beneficiary or beneficiaries may be perceived to be too young and/or immature, at the point when the trust is established, to accept the responsibilities that the fund might involve

Trusts prevent the cashing-in of assets to cover debts or profligacy (reckless extravagance, as might happen when a youth gets hold of what they feel is an effectively-infinite mountain of money)

Usually the tenure of the trust allows the assets to appreciate in value and often that is swollen by revenue from rents and similar where property is involved

Trusts allow for continuity in respect of income where somebody might be temporarily or permanently incapacitated

Forward planning via family trusts allows for expenditure, such as for private schooling, that is a priority for most families

They tend to sidestep inheritance tax because the asset is not considered to be part of the benefactor's estate

Trusts can let benefactors pass on assets whilst they're still alive.

Are All Family Trusts Essentially the Same?

No. There are really 4 types of family trust in the UK. All of them involve the 'settlor' (the benefactor or person with the original assets), 'deeds' (the documented agreement that says who, what and when funds may be accessed as well as how they can be used), trustees and a beneficiary or beneficiaries.

The most common is the 'simple' or 'accumulation' trust which gives beneficiaries automatic rights to assets and any income derived from them

Then there are 'interest in possession' trusts where the main asset, usually a property, is to be passed on to a progression of beneficiaries. So, for example, a husband might leave a home to his partner but when she dies it goes straight to his kids, and then the grandchildren

Then there is a 'discretionary trust' where the trustees have a lot of leeway in respect of deciding who will receive what help and when that happens

Lastly there is the 'accumulation and maintenance' trust that, in effect, is a 'discretionary trust' which becomes an 'interest in possession' trust. So the trustees run it until the beneficiaries are 'of age'. At that point the beneficiaries will be in charge themselves.

What Assets Can Be Put into a Family Trust?

All sorts of assets can be put into a family trust. They might include not only property (land and/or buildings) but stocks and shares, cash (including foreign currencies) and commodities including precious metals. You might include antiques, classic cars, heirlooms and even items of sentimental value.

What Else Will I Need to Consider?

Once you know what you want to leave if something happens to you, you need to decide:

Who gets the assets (the beneficiary or beneficiaries)

Who the trustee is (or the trustees are) going to be. Trustees, and you only actually need one, need to be not only capable but willing and able to commit to that long-term. This could be quite onerous and demanding on a day-to-day basis. It could also go on for years if any children involved are young when the trust is established, since it will run until those children are mature

Conditions to go into the deeds. So you need to really sit down and construct a set of conditions in response to questions such as 'Who?' 'What?' 'Why?' 'When?' 'Where?' and 'How'?' - questions that will let your trust deal with every likely scenario (as well as, maybe, some unlikely-but-possible ones)

Responsibilities to HMRC. They should know about the trust. And the trustees will be responsible for paying any tax to the HMRC.

What Else Will I Need?

Proof of ownership of the supposed assets

Very probably the assistance of a tax advisor or an accountant - or both

A good solicitor, for example somebody from Goodwills

Witnesses to your signing the documents.

Once They're Set Up Can Family Trusts Be Changed?

Yes. And no. What we have here are two types.

Revocable trusts that allow adjustments to the 'deeds' if not abandonment of the entire scheme, or

Irrevocable trusts must operate under predetermined conditions until the 'deeds' allow otherwise.

Where Can You Find Out More about Family Trusts?

You can find out more on family trusts at Goodwills though the HMRC website will tell you a lot at www.gov.uk/trusts-taxes.

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FAMILY TRUSTS | Goodwills Legal Services Ltd

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The intended beneficiary or beneficiaries may be perceived to be too young and/or immature, at the point when the trust is established, to accept the responsibilities that the fund might involve Trusts prevent the cashing-in of assets to cover debts or profligacy (reckless extravagance, as might happen when a youth

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Probate Solicitors - Goodwills Legal Services Ltd

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Probate Solicitors - Goodwills Legal Services Ltd

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Goodwills Legal Services Ltd offers a nationwide Probate service, including a free initial home visit, so no matter where you are in the UK, they will be able to help. They are a regulated law firm that has dealt with hundreds of Estates, ranging from straightforward to multinational Estates.  Call them at 0345 222 0022 now!

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We provide a nationwide Probate service, including a free initial home visit, so no matter where you are in the UK, we will be able to help. We also deal with Estates remotely for those who are abroad, so even if you're outside of the UK, we can still assist you. For free initial advice, get in touch with us on 0345 222 0022, email us at info@goodwills.net or message us through our contact form.

Goodwills is a regulated law firm that has dealt with hundreds of Estates, ranging from straightforward cash only Estates to large, taxable and multinational Estates. We offer some of the best prices in the industry, whilst you'll still have the peace of mind of knowing that everything is being undertaken by specialist professionals.

Our fees for obtaining a Grant of Probate start at £500.00 (plus VAT) but we are also able to offer a comprehensive complete Probate full estate administration service.

When is a Grant of Probate required?

A Grant of Probate is generally required in the following circumstances:

Where there is a house owned jointly as tenants-in-common on first death;

Where there is a house owned outright by the deceased;

Where there are sums in a bank account or investment valued at over £10,000; and

Where are there life insurance policies that were not held in Trust.

If you think a Grant of Probate may be required, then get in touch with us today and we are happy to give free initial advice on this.

Why use a lawyer to obtain Probate?

It is recommended that you use Probate Solicitors if you are dealing with the Estate of a loved one. As specialist Probate Lawyers, we are insured for the work we undertake and have experience of reducing the various risks involved in Probate. It is a little-known fact that Executors are personally liable for Probate and Estate Administration and, if a mistake is made, they are liable to pay the Estate for the loss out of their own pocket.

During the Probate process, there are many potential pitfalls, such as calculating/paying the wrong amount of tax (for which fines may also be due!), distributing the Estate prior to Trustee Act Notices being placed or distributing the Estate to the wrong beneficiaries (perhaps due to wrongly interpreting the wording of the Will document).

Does Goodwills deal with taxable Estates?

We deal with taxable Estates and can:

Deal with all of the tax forms, ensuring that HMRC is informed in a timely manner;

Ensure that the correct amount is paid and within the HMRC deadlines; and

Reduce the end tax liability through Deeds of Variation, Deeds of Appointment and other legal devices.

Reducing Inheritance Tax and Capital Gains Tax liabilities is one of the main objectives of our clients and something that we specialise in. In some cases, this involves doing a Deed of Variation to alter the shares received, to create a new Trust or in some cases to wind up a Trust within an existing Will.

What are the steps involved when undertaking Probate?

The Executor of a deceased Estate has various duties, including but not limited to:

Ascertaining what property and other assets were owned by the deceased at the date of their death.

Determining what liabilities were owed by the deceased at the date of death.

Arranging the funeral and making payment for this.

Establishing Capital Gains Tax, Inheritance Tax, Income Tax, Council Tax and any other tax owed as at the date of death. Importantly, this involves ensuring that all of the correct tax returns are completed and submitted to the Inland Revenue in a timely fashion. Failure to do so may result in fines, for which the Executors are personally liable.

Completing and submitting the various Probate forms, including the IHT205, IHT400 and associated forms to the Probate Registry.

Once the Grant of Probate has been obtained, Trustee Act Notices should be placed in the London Gazette and in a local paper. A waiting period of 6 months is then recommended, in order to mitigate the Executor's liability. This is one area that lay Executors often get wrong.

Where there is a property involved, this will need to be transferred or sold, depending on the circumstances.

Collecting in all the assets and paying any outstanding liabilities.

Any gifts and legacies left by the deceased will need to be distributed to loved ones. These usually pass tax free but this is an area where Executors need to be cautious, and so it's best to contact a solicitor or lawyer to verify this.

Prior to the final distribution of the residuary Estate, detailed accounts and a Statement of Assets & Liabilities should be passed to be beneficiaries of the Estate.

Finally, the residuary Estate should be distributed to the end beneficiaries in accordance with the Will. It's vitally important that this is done correctly, as otherwise you will be personally responsible for retrieving incorrectly paid amounts. There may be bespoke Trusts to be set up or monies may need to be held on Trust for minors who have not yet reached the age of attainment.

When we carry out our 'Complete Probate Service', we will guide you through all of the steps above and carry out all of the legal work on your behalf. If you would like a no cost initial consultation, then just get in touch with us.

What is the cost of obtaining Probate?

Our fees start from as low as £500.00 (plus VAT) to obtain a Grant of Probate. There are disbursements involved and the Court Fees are currently set to rise above the current level of £155.00, as follows:

Estates worth less than £50,000 will pay nothing, meaning estates worth between £5,000 and £50,000 will save £215 compared to the current system.

Estates worth from £50,000 up to £300,000 will pay £250, a rise of £35.

Estates worth from £300,000 up to £500,000 will pay £750, a rise of £535.

Estates worth from £500,000 up to £1 million will pay £2,500, a rise of £2,285.

Estates worth from £1 million up to £1.6 million will pay £4,000, a rise of £3,785.

Estates worth from £1.6 million up to £2 million will pay £5,000, a rise of £4,785.

Estates worth more than £2 million will pay £6,000, a rise of £5,785.

How long does it take to obtain Probate?

There are currently delays at the Probate Registry, as of today's date (15 June 2019), and it is currently taking around two months from the date of application to the Probate Registry to receive the Grant of Probate back.

We offer a fast, streamlined service to ensure that the application from the Grant is made at the earliest possible moment. Without speaking to you about your circumstances, we aren't able to give more precise estimates as to timescales but please do get in touch.

Does Goodwills deal with Intestacies?

Yes, we are able to obtain Letters of Administration where the deceased has died without having left a Will. We are also able to draft Deeds of Family Settlement and to help structure the end result so that all beneficiaries are happy with the outcome. Intestacies can be difficult to manage and, if you are in the position of having to deal with one, we'd suggest that you get in touch as soon as possible. In particular, it is possible to take steps to protect against future care home fees and potentially to reduce the tax liability of the Estate.

We always recommend Will storage to clients who make Wills with us, as we know that one of the most common reasons that intestacies occur is due to Wills having been lost prior to death.

What if another law firm or bank has been appointed as Professional Executors?

We offer a Professional Executorship service ourselves but we are well known in the industry for providing a high level of service for very competitive fees. This is not always the case and it is well known that some law firms and banks charge extortionate fees. If you contact Goodwills early enough, then it's usually possible to have a Professional Executors removed.

What if there is a claim against the Estate?

If there is a Probate claim against the Estate of the deceased, then Goodwills are also able to deal with Contentious Probate work. In cases where a claim has not yet been made but it looks likely, or a caveat has already been put in place, then we are also able to help. If a claim looks likely, then it's best to have Probate Solicitors involved from the outset as things may quickly escalate and you may be held personally liable for any errors/omissions.

If you wish to contest a Will, then that is also something we are able to assist with. In either case, get in touch with our team or take a look at some further information in our Contentious Probate section.

Does Goodwills do Deeds of Variation?

Yes, we are able to deal with Deeds of Variation on behalf of our clients. In some cases, we do these in order to reduce tax liabilities, to avoid future care home fees or to protect minor children. In some cases, it makes sense to create Trusts retrospectively by way of a Deed of Variation and, as a specialist Trust firm, this is an area where we are experts. There are many reasons why a Deed of Variation might be set up but it's of great importance that you seek proper advice before entering into any type of agreement.

Can Goodwills act as Professional Trustees?

If there is a Trust in the deceased's Will, or one is being set up by way of a Deed of Variation, then Goodwills are able to act as Professional Trustees. There are various advantages to having Professional Trustees, including knowing that monies will be properly managed, monitored and that all HMRC filings will be done professionally and on time. We act as Professional Trustees for many of our clients and we are also able to carry out Deeds of Appointment and Trustee Minutes/Resolutions, and other such Trust work.

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We provide a nationwide Probate service, including a free initial home visit, so no matter where you are in the UK, we will be able to help. We also deal with Estates remotely for those who are abroad, so even if you're outside of the UK, we can still assist you.

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Goodwills Legal Services Ltd is one of the fastest growing Will-Writing organizations in the country. As a regulated firm, they offer a wider range of services than just Wills, including LPAs, Probate, Professional Executorship, Trusts, and much more. Call 0345 222 0022 for more details.

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The Goodwills business has been in operation since April 2003 and, for over 16 years, has provided Estate Planning services for clients all across the country. From humble beginnings, we have grown into a company that has prepared over 50,000 Wills and advised over 55,000 clients.

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Will Writing, Estate Planning, LPA, Trust and Probate Lawyer | Goodwills Legal Services Ltd

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The Goodwills business has been in operation since April 2003 and, for over 16 years, has provided Estate Planning services for clients all across the country. From humble beginnings, we have grown into a company that has prepared over 50,000 Wills and advised over 55,000 clients.