wills and tenants in common

Baggysdad

I suggest you express your concern to the professional as concern that your OH may at 88 be led astray by another man/woman entering into an unwise marriage and this is the reason you need to protect the children. I mean, trying to avoid care home fees is illegal, so you wouldn't want to do that.

Avoiding care fees is not illegal - nobody goes to jail for it. It is true that if you give assets away during your lifetime, and subsequently need care, you could still be assessed as owning those assets. However one of the clear advantages of this scheme is that it gets around this problem.

A and B make wills as described in this thread.

A dies. His share of the house goes into a trust created by the Will.

B subsequently goes into care (or is even in care at the time that A dies). B's share of the house is her own half share. This is the only share of the house that the Local Authority can assess. B hasn't given anyway anything - A did, when he died, and as he is now dead, he won't ever need care, so the Local Authority cannot assess what A did or didn't give away - because he is not the one needing care. There is nothing the Local Authority can do about this.

Therefore you can be as blatant as you want about the reasons for creating this type of Will.

One point to make though - if A and B both go into care, the whole house becomes assessable.

One other point about downsizing after first death. There are several options about what to do with any surplus cash arising from a downsize:
1) pay it to the spouse - provides them with cash, but if they go into care the cash will be assessable
2) pay it to the children - provides the children with cash - may be attractive if the spouse doesn't need the cash but the children are, say, struggling with their own finances
3) pay it into a trust and provide income to the spouse and hold the capital for payment to the children when the surviving spouse dies
4) as number 3, but also allow some or all of the capital to be lent or given to the spouse of the trustees looking after the trust agree that it is needed.

The trust could allow for any or all of the above options - and careful thought needs to be given to the issues and the consequences. This is a job for a face to face meeting with a professional who is trained and qualified - and that doesn't necessarily mean a solicitor, because Wills have not been a compulsory subject on law courses for some time. With all due respect to 10 minute Will and other Internet Will providers, this is not a job for an Internet Will.

There are three groups whose members stand a better chance of being up to speed on this subject:
1) Society of Trust and Estate Practitioners
2) Solicitors for the Elderly
3) Institute of Professional Will Writers.

Pee

Therefore you can be as blatant as you want about the reasons for creating this type of Will.

If you are blatant, and the Local Authority ask to see the will file, there would be a problem. The Local Authority can make a claim on behalf of the survivor in care, under the IPDFA. This has happened already, it doesn't usually happen. A life interest should be sufficient to set aside the claim, esp if you had separate good reasons.

This is a job for a face to face meeting with a professional who is trained and qualified - and that doesn't necessarily mean a solicitor, because Wills have not been a compulsory subject on law courses for some time. With all due respect to 10 minute Will and other Internet Will providers, this is not a job for an Internet Will.

There are three groups whose members stand a better chance of being up to speed on this subject:
1) Society of Trust and Estate Practitioners
2) Solicitors for the Elderly
3) Institute of Professional Will Writers.[/quote]

In all honesty, STEP practitioners may have been grandfathered into the scheme prior to about 1996 and may therefore be no more capable than the next solicitor, SFE - not aware of any easy way of getting in there. It is my understanding the Institute of Professional Will Writers are properly trained, but they are hard to distinguish from other will writers who simply set themselves up with frighteningly little training. It is only very recently - the last five years? - that Wills have not been a compulsory part of the solicitors final exams, the Legal Practice Course. A solicitor who specialises in Wills, Probate, Trusts and Court of Protection work and who doesn't do any other type of work, i.e. conveyancing, divorce, etc is what you want. Ask for a quote and speak to them on the phone. Are they helpful and do they listen to you? If so, you have founf the right person.

Pee

monkey_spank wrote: »

What would the effect be if the couple were above the nil rate band threshold then as you seem to be suggesting there could be IHT issues otherwise?

If you are over the IHT threshold, being for many couples £650k come April, then you really need to look at the tax planning aspects.

margaretclare

Pee wrote: »

So the house could be used for care fees, after the death of one of you or if you were both in care.

The value of it could be so used, and why ever not, if neither DH nor I required it to continue living in i.e. we were living under someone else's roof and had no need of our own?

Baggysdad

A life interest should be sufficient to set aside the claim, esp if you had separate good reasons

Absolutely - that was what I meant by 'this type of Will', referring to my previous paragraph which mentioned a trust. Sorry if I didn't make that clear.


I won't use this thread to get into a discussion about the difficulties in picking out a competent solicitor from all the other numpties.

localhero

Pee wrote:

It is my understanding the Institute of Professional Will Writers are properly trained, but they are hard to distinguish from other will writers who simply set themselves up with frighteningly little training

I think it's quite simple - if the willwriter belongs to the IPW then they will be qualified, trained and insured - if they don't then the likelihood is they are not.

The government really ought to bring in compulsory regulation so that the unethical and incompetent no longer give the good guys a bad name.

sloughflint

Baggysdad wrote: »

I won't use this thread to get into a discussion about the difficulties in picking out a competent solicitor from all the other numpties.

But Sanfly (very wisely in my view) expressed concern over choosing the right professional.

Pee wrote: »

It is only very recently - the last five years? - that Wills have not been a compulsory part of the solicitors final exams, the Legal Practice Course.

A solicitor who specialises in Wills, Probate, Trusts and Court of Protection work and who doesn't do any other type of work, i.e. conveyancing, divorce, etc is what you want.

In the past this would have made sense to me but not anymore.

This forum alone contains examples of poor advice in this area. Of course, it's impossible to tell whether those particular solicitors were generalists. However, I know of several who specialised in Wills and Probate, did no other type of work, had practised for many years that the OP certainly should not approach.

Pee wrote: »

In all honesty, STEP practitioners may have been grandfathered into the scheme prior to about 1996 and may therefore be no more capable than the next solicitor,

I didn't know that. :eek:

Pee wrote: »

Ask for a quote and speak to them on the phone. Are they helpful and do they listen to you? If so, you have founf the right person.

How I wish it could be that simple to gauge competence in one short phone call.

Pee wrote: »

It is my understanding the Institute of Professional Will Writers are properly trained, but they are hard to distinguish from other will writers who simply set themselves up with frighteningly little training.

localhero wrote: »

I think it's quite simple - if the willwriter belongs to the IPW then they will be qualified, trained and insured - if they don't then the likelihood is they are not.

Baggysdad wrote: »

There are three groups whose members stand a better chance of being up to speed on this subject:
1) Society of Trust and Estate Practitioners
2) Solicitors for the Elderly
3) Institute of Professional Will Writers.

Well we have three separate positive comments about the IPW so maybe that’s the answer then.

localhero wrote: »

The government really ought to bring in compulsory regulation so that the unethical and incompetent no longer give the good guys a bad name.

I agree and I remember reading and agreeing with the following statement too:

If The Law Society truly wishes to support our views on regulation, it should insist that all solicitors be trained in will writing, pass examinations in this area of law and then commit to on-going training and development in this area.

Good luck Sanfly.

monkey_spank

pee wrote:

STEP practitioners may have been grandfathered into the scheme prior to about 1996 and may therefore be no more capable than the next solicitor.... A solicitor who specialises in Wills, Probate, Trusts and Court of Protection work and who doesn't do any other type of work, i.e. conveyancing, divorce, etc is what you want. Ask for a quote and speak to them on the phone. Are they helpful and do they listen to you? If so, you have founf the right person....It is my understanding the Institute of Professional Will Writers are properly trained, but they are hard to distinguish from other will writers who simply set themselves up with frighteningly little training.

sloughflint wrote:

This forum alone contains examples of poor advice in this area. Of course, it's impossible to tell whether those particular solicitors were generalists. However, I know of several who specialised in Wills and Probate, did no other type of work, had practised for many years that the OP certainly should not approach.

I'm afraid my family have also been on the receiving end of an incompetent solicitor who supposedly specialised in wills and probate work. To suggest a STEP member is no more qualified than a regular high street monkey is utterly ridiculous. STEP members must demonstrate their expertise in their particular field by passing exams and receiving ongoing compulsory training. Any fool can do a bit of schmoozing on the phone and this doesn't demonstrate that they have the necessary expertise and integrity.

sloughflint wrote:

Well we have three separate positive comments about the IPW so maybe that’s the answer then.

I had never heard of the IPW before joining this forum and I am extremely impressed with their standards and stance on having proper regulation in the profession.