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Is it a cliché or is it a fact that someone can be cut out of a Will?
It really depends on who the person is, for example, if a spouse wished to pass all their wealth to their children rather than to each other, then there are still certain rights a married person has.
These are known as Prior Right and Legal Rights and were brought in to help protect people where there was no Will or an old Will which perhaps didn’t truly reflect what the person wanted to happen. Such as the single man who had bought a house on his own, then met someone and married. His Will on buying a property may have left this to his parents in the absence of any clear succession. Without updating this and without the presence of these rights then the new wife could be left homeless if he were to die prematurely.
Prior rights come first and give the surviving spouse rights to the family home up to £300,000, items within the home (chattels) to £24,000 and cash of £42,000 where there are children or cash of £75,000 if there are not.
Legal rights then look what is known as moveable estate, or basically what’s left after all debts and Prior Rights have been met. A spouse with children then has legal rights to a third of this or half if there are no children.
The remainder then follows the Rights of Succession in Scotland, http://www.scotland.gov.uk/Publications/2005/12/05115128/51285
So you can see without a Will or the wrong Will, then the spouse could unintentionally be cut out of part of their partners estate.
Updating and creating the correct document pointing everything to each other may be a more sensible option but would depend on the person’s financial position and potential Inheritance Tax Issues.
Even if the individuals needs are quite straightforward it may not always be the best option to pass 100% to each other, depending on their long term view.
What I mean by this is, family units are more diverse than ever and people may be on their second or third marriage and with children from previous relationships.
Whilst the “new couple” have the best intentions for each other, they may both have created their own wealth prior to meeting and want to ensure part or all of this goes to their blood children rather than the new spouse and their children.
Creating a Will leaving everything to each other could expose a risk that on second death the estate could bypass some children and effectively “cut them out of the will” either by accident, remarriage or intentionally.
The service I offer all my clients during the initial fact find meeting, is to explore and challenge these areas, to help educate my clients on the worst case scenario, debate whether this is a concern or not, and produce the appropriate document based on their response.
So for me, Estate Planning is not just a case of “taking an instruction” from the client, who is probably unaware of just how powerful a Will document is.
It is a consultation and explanation to guide the client to reach their own conclusion which can only be achieved through conversation.
So in summary, a Will for me is not about dying, it is creating the “document which underpins the conversation”, which will hopefully not come into play for a very long time.
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Often when I sit down with clients to arrange their Will, if there are young children, I always ask the question of who would look after them if one or both of them were to die.
Both generally give the same response. If I die first then the other will look after them and vice versa.
But is this always an automatic right?
Parental responsibility is always a right of a mother, but depending on whether or not the couple were married at the time the child was born will give bearing to what rights the father has.
If they are not married then the father has no automatic right but he can ask for Parental Responsibility immediately from his partner. However, if he was in the unfortunate position that his partner had already died then he would need to apply for a court order.
This is also the case if the couple marry after the child is born as the specific point is they need to be married at the point of conception!!
Not really an issue some might say, but if the maternal grandparents had issues surrounding this then they could also apply for rights to look after the children and conflict arise.
Guardianship is an important part of a Will to ensure and maintain children are disrupted the least should both parents die. The choice is very much down to the parents and I always get them to consider the geographical and monetary considerations.
As with everything I do, a Will is not really about dying, that is the trigger. Your Will is your voice to ensure the correct events happen and to protect those that are left behind.
I watched the final episode of BBC 2’s “http://www.bbc.co.uk/iplayer/episode/b00yspky/Cant_Take_It_with_You_Disability
last Friday and must say a big thank you to the BBC and Sir Gerry Robinson for raising public awareness of the need to speak to an Estate Planner.
This week’s subject matter for me is one probably closest to my heart as it deals with the sensitive issue of how to leave your Estate to your children when one of them has a disability.
I work with a number of local charities in Edinburgh to help with their immediate fundraising and legacy work. However part of the time I offer is to run education workshops to the parents of those who are receiving the help of the charity.
Why? Well it’s very straightforward. The disabilities being dealt with are varied, there are young adults who have physical disability but will be able to manage their affairs. There are other children who unfortunately will not have the “capacity” to deal with or understand finance, such as the autistic grandson highlighted in this weeks programme.
Regardless of the level of disability the fundamentals of the work these charities are doing are the same.
They provide a support mechanism for the parents, respite care, physical, occupational and holistic therapies. The support is wide and varied but as with all charities relies heavily on regular donations today and in the future.
The education process I offer at workshops dovetails into this support by guiding parents to consider what will happen when they have passed on. Leaving a considerable share of your estate to your disabled child is the right thing to do. However if they are already receiving direct payments from the state or have assisted carers, this is means tested, and any income above £24k would be used to pay for this care.
I always, therefore, recommend a disabled discretionary trust, which means any inheritance is never wholly owned by the recipient but they can enjoy the benefits of access to it. This ring fences the income and means that all state benefits and support can continue.
If you are involved in fundraising for a local charity and would like to find out how I can help your strategy please give me a call.
0131 44 11 000 or email email@example.com
In my blog last week I was telling you about a young client who is going through the trauma of winding up her father’s estate who had died without a Will.
You will remember that the whole process is being aggravated due to the issues surrounding relationships, marriage and ownership of property. Well it would appear from chatting to my client at the end of last week that events have taken an even stranger turn.
Although the father died prematurely at 50 he had kept up to date with technology and used email, . At the time of his death, the family contacted his email provider to gain access to check any potential emails and close off Facebook and Twitter accounts.
This seemed the logical thing to do and all companies involved were sympathetic to my clients situation and allowed access following evidence of the death certificate. A painful process but once done then my client and her family could gain closure.
It therefore came as a complete shock last week when the aunt of my client received a “friend request” via Facebook purporting to be from my clients dead father. My client fortunately found it slightly amusing to think that her father was using Facebook to contact the family beyond the grave, rather than through the usual medium. But the serious point is, someone out there is purporting to be him potentially with a view to gain confidence, or aggravate the on-going feud, the bottom line is that it will be very difficult to prove.
This is the first time I have come across this which has led me to think about the need to “plan for a digital death”.
For example, what would happen to your email and on-line accounts? Do you own domain names that have a value, are there implications to your business?
Facebook in particular is an important one as they may hold a lot of memories including photos that family and friends may not otherwise have access to. And what about storage sites such as Flikr.
As a business we will be discussing this week how we can create a specific legacy which will allow you to give instructions on how you want all digital media to be dealt with on your death.
In the meantime I guess it all gives us something to think about and as I often say, “what and how you think people will react following your death is unfortunately not always the reality” emotion and money can influence people.
I met with a young client last week who had contacted me as she desperately wanted to get her first Will set up. I was of course delighted to help but was curious when we first met on why, at age 25, she had such determination to get her house in order.
Unfortunately, the reasons became clear very quickly. During our chat it emerged that her father had died suddenly last summer aged only 50. This in itself is tragic but as we spoke further, the full extent of the issue came out.
Prior to his death, the client’s father had left her mother in the early 1990’s as a result of an affair, and bought a new flat to live in on his own. His relationship with this new partner grew and whilst they never co-habited they were in the eyes of everyone who knew them a “couple”.
His ex-wife continued to live in the marital home but over the subsequent years neither party forced the issue of “separation” or “divorce”. Not really an issue when you have time to sort everything out, but as you have read, this gentleman never knew when his exit would be and never arranged a Will.
The consequence of this means his estate must follow the Rights of Succession under Scots Law (http://www.scotland.gov.uk/Publications/2005/12/05115128/51285) This confers that his estate be split between his ex-wife and children. The ex-wife gains to inherit as technically they had never divorced.
Needless to say the deceased’s new partner is extremely upset at this as she feels she has lived her life as his common law wife and has rights to his home which they shared.
So you will guess what happens next? The new partner feels aggrieved that this is happening and has issued a claim against his estate. The deceased’s children on the other hand are defending the petition as they feel this is what their father would have wanted.
Bottom line is a potentially expensive legal case which is being fought out between both sides law firms. So far my client has spent in excess of £1000 in pre-court negotiations but with no resolution.
How much easier would it have been had her father taken the time to get his house in order and for a few hundred pounds, create a lasting Will which would give his voice after he had passed.
As I have said before, no one wants to think about dying. But by creating the “insurance document” during your lifetime can prevent further heartache, distress and loss of potential inheritance.
I was reading an interesting article yesterday which suggested that only 4% of the population have taken steps to fund their long-term care.
Which basically means the remaining 96% of us are either blissfully unaware of the consequences and have not even considered the matter.
Results from the ABI survey illustrate that people understand costs will be significant but few could afford to plan ahead. 1 in 5 thought they would not have to move into a home and 8% believe that the state will provide for them.
Sadly this is not the case and as I have mentioned previously without taking the correct advice early on can mean that people’s homes and money are at risk.
By planning early, there are a number of strategies that can be adopted to prevent loss and potential Inheritance.
The scary thing for me, however, is that Estate Planning and creating discretionary trusts is often viewed as something only the “well off” do.
For me this is so far from the truth but getting the message out to the masses takes time and is an education process. The reality is the “typical” person who needs advice are those who during their lifetime have amassed the one thing they never thought they would, a property.
It’s value may not be significant but importantly it does have a value and therefore, if possible, any local authority would try and achieve a sale to fund long term care.
By taking steps to break the “common chain” of passing wealth from husband to wife on first death can ring fence property, allow the survivor to live in the property in perpetuity, or if Long Term Care is needed to prevent the sale.
As I often say, taking the time during your life to create the “insurance document which underpins a conversation”.
To find out how to create your insurance document contact;