Importance of an up to date Will
Sadly it is true that many people in the UK either do not have a will or have one that is so out of date that it does not reflect the specific wishes of the individual concerned.
Key reasons for having an up to date Will:
- if you have children or other dependents who rely on you financially
- if you want to leave something to non-family members
- it can help reduce the amount of Inheritance Tax that might be payable on the value of your Estate
- it will help make it much easier for your family or friends to deal with matters when you die
- in the absence of a legitimate will your Estate will be distributed in the way defined by the Laws of Intestacy which is very unlikely to reflect your personal wishes
Consequences of Dying Without a Will
If you die without leaving a will then the law will decide how your Estate is distributed.
This would mean:
- if married, your spouse might inherit most or all of your estate and your children might not receive anything. This would be the case even if you were separated, but not if you were actually divorced. Different rules do apply in Scotland
- if you have either children or grandchildren it will depend on where you live as to how much they will receive from your Estate
- if you are not married nor in a civil partnership, your partner will not be legally entitled to any part of your Estate when you die
- the Inheritance Tax bill on your Estate could be significantly higher than if you had written a will
- should you have no close living relatives then your whole Estate will revert to the Crown or the Government (bona vacantia)
In certain situations where one of the partners dies in unmarried relationships the living parent has had to sue their own children to get a share of their partner’s Estate as the law states the children will receive everything.
Writing a Will to Meet Legal Requirements
For a will to be legally valid, you must:
- be 18 or over
- make it voluntarily
- be of sound mind
- make it in writing
- sign it in the presence of two witnesses who are both over 18
- have it signed by your two witnesses, in your presence
Lasting Power of Attorneys
A power of attorney is a legal document that allows someone to make decisions for you, or act on your behalf, if you are no longer able to or if you no longer want to make your own decisions.
The reasons for doing so may include:
- you may need to make plans for the future if, for example, you have been diagnosed with dementia and may be unable to make decisions at that time
- in a temporary situation where, for example, you are incapacitated and require help with day to day activities such as paying the bills
Power of Attorney Options
It’s important to be aware that there are different types of power of attorney and you may want to set up more than one. We'll explain:
- Ordinary Power of Attorney – will instruct one or more person, your attorney, to make financial decisions on your behalf usually for a temporary period only
- Lasting Power of Attorney - will instruct someone you trust the legal authority to make decisions on your behalf if you lose mental capacity in the future
- Enduring Power of Attorney – replaced by Lasting Power of Attorney on the 1st October 2007 although ones signed prior to this date are still valid
Importance of Lasting Powers of Attorney
You can ensure that people you trust, who you know will look after your best interests, are appointed to look after your finances, health and care at a time when you may no longer wish to have that responsibility or are unable to do so for some reason.
Inheritance Tax (IHT) is a tax levied on the Estate of someone who has died which would be their property, money and possessions. The Estate will normally become liable to pay IHT if it is in excess of £325,000 when the individual dies.
Who is liable to Pay Inheritance Tax
In the event of a will it is normally the appointed Executor who arranges to pay the Inheritance Tax. If there is no will then the appointed Administrator of the Estate will organise the tax payment which is normally due within six months of death.
Inheritance Tax and any debts are usually paid first from the Estate funds or sale of the assets. Once these have been paid either the Executor or Administrator can distribute the remainder of the Estate to the legally entitled beneficiaries.
Inheritance Tax Exemptions
Inheritance Tax does not normally apply where:
- the value of the Estate falls below the current IHT threshold of £325,000
- the Estate is left in its entirety to the living spouse of civil partner
- the Estate is left in its entirety to a registered charity
Inheritance Tax Costs
The current threshold for payment of Inheritance tax is £325,000 and will not be reviewed until 2021. This is called the nil rate band (NRB).
Any excess over the £325,000 nil rate band will be liable for Inheritance Tax at a rate of 40% which would be reduced to 36% if 10% of the net Estate is left to charity.
Estate value - £750,000
Nil rate band - £325,000
Excess - £425,000
Tax payable at 40% - £170,000
The Residence Nil Rate Band (RNRB) – also known as the home allowance has been recently introduced.
This is an additional nil rate band allowance when a residence is passed on death to a direct descendant. This amendment is being phased in over the next four years.
- £100,000 for deaths in tax year 2017 to 2018
- £125,000 for deaths in tax year 2018 to 2019
- £150,000 for deaths in tax year 2019 to 2020
- £175,000 for deaths in tax year 2020 to 2021
The residence nil rate band allowance will increase in line with the Consumer Prices index from 2021.To be eligible, the residence or a share of it must pass to the children or grandchildren, including step-children, adopted children, foster children but not nieces, nephews or siblings.
Reducing the amount of Inheritance Tax Payable
This is a complex area of tax planning but the following sets out a few simple tips:
- regularly giving away up to £3,000 a year in gifts
- paying into a pension scheme
- leaving the Estate to a spouse or civil partner
- leaving a legacy to charity
- placing assets into a trust for beneficiaries
What is a Trust
In essence, a trust is a legally enforceable contract set up by the settlor, the person who own the assets held within the trust, which gives the appointed trustees legal responsibilities to implement the wishes of the settlor including who should benefit from the trust. Trustees also have responsibility to manage the trust, decide how assets should be invested and pay any tax owing.
There are many reasons for setting up a trust with one of the most popular being the protection of family assets from the Inland Revenue or even other members of the family.
It is important for settlors to understand that once assets are placed in a trust in most instances they are no longer theirs, but fall under the care of the appointed trustees. As a result, the settlor has no responsibility to pay tax on these assets.
There are many different types of trust, some of which are taxed differently, so it is important to seek advice from a financial planner before making any decisions on what is best for you.
Most Popular Trusts
All assets placed within a bare trust are held in the name of a trustee. However, the nominated beneficiary has the legal right to all of the capital and income from the trust at any time if they are:
- 18 or over in England and Wales, or
- 16 or over in Scotland
In this situation the assets placed by the settlor within the trust will go directly to the designated beneficiary. Bare trusts are most frequently used to pass assets to younger family members with the trustees managing the assets until the beneficiary is old enough to be deemed financially responsible.
This type of trust allows the trustees certain flexibility to make decisions about how to use the trust income and capital. The extent of the discretion afforded to trustees will depend upon the conditions included within the trust deed and could include:
- which of the beneficiaries could receive payments from the trust
- will they be paid from income or capital
- the frequency of payments
- any conditions attaching to these payments
Discretionary trusts are used by settlors where it is felt that for whatever reason the beneficiary is not capable of managing their finances sufficiently well, for example due to age or some health condition.
This type of trust instructs the trustees to pass on all trust income to the beneficiary as it arises after the deduction of reasonable expenses incurred.
A common use of an interest in possession trust is where a wife may create a trust for any shares she may own. The trust deed might instruct that on her death all income deriving from those shares will go to the surviving husband. The husband is only entitled to the income throughout the remainder of his life and has an interest in possession in the trust, but on his death the shares themselves will pass on usually to her children or another nominated beneficiary.
The trustees do not distribute any income from the trust, but accumulate income and profits from the sale of trust assets until the trust expires which is at a time specified within the original trust deed.
This type of trust is used by parents or grandparents who will leave assets in a trust to be released for the benefit of their children or grandchildren at a specified age eg 21, 25.
An accumulation trust has become less popular post 2006 when much of the favourable tax treatment was rescinded and settlors opted to use discretionary trusts as an alternative.
Mixed trusts are a combination of more than one type of trust and are frequently considered when there are beneficiaries of different ages. Within the trust deed this mixture of trusts will allow, for example, child beneficiaries to be treated differently.
Non-resident trusts are where none of the trustees are resident in the UK for tax purposes, or only some of the trustees are resident in the UK and the settlor was not resident nor domiciled in the UK when the trust was first set up.
One of the key benefits of a non-resident trust is that it is not usually subject to capital gains tax in respect of either offshore or UK assets.
The tax rules for non-resident trusts are very complicated as in general each trust is treated differently and therefore professional advice should always be sought.
These trusts apply where a settlor. or their spouse or civil partner wish to benefit from the trust.in some way, whether this trust be an interest in possession, accumulation or discretionary trust. In this situation, the settlor will be subject to tax on the proceeds from the trust.
Important: The taxation and treatment of trusts is a complex subject. It is very important to seek professional advice as to what option is best for all parties as the consequences of any errors can be devastating.
The Financial Conduct Authority does not regulate inheritance tax planning or taxation advice.
This information does not represent financial advice and is not suitable for everyone - therefore if you have any questions as to its suitability for you, you should seek financial advice.
Tax treatment is based on individual circumstances and may be subject to change in the future.