Benefits fraud and the subject of benefits affected by an inheritance can raise some questions by clients. As a Will Writer it is common practice to use trusts to protect the inheritance of a beneficiary who currently obtains benefits. (Ed. For more information on special trusts to avoid benefits fraud, click the link. Few Wills are regularly reviewed and updated to keep up to date with changing circumstances. For one such service which may help to prevent accusations of benefits fraud click the link.)
The use of a discretionary trust prevents the inheritance being classed as an asset of the beneficiary for the purpose of any ’means tested’ benefit. This is not fraudulent activity just sensible estate planning. When it comes to dealing with probate however the unsuspecting professional advisor could find themselves in a position where they are being asked to assist a beneficiary commit benefits fraud and prevent their benefits being affected.A person in receipt of means tested benefits must declare any inheritance so that their entitlement can be reassessed. It is not uncommon for someone to attempt to ‘hide’ their inheritance by requesting that it is paid into the bank account of a different family member or friend and caution must be exercised in respect of any such requests. Proper planning means that such deception is entirely unnecessary – but sadly few people take proper advice which would avoid accusations of benefits fraud.The serious approach taken by the courts in relation to benefits fraud has been highlighted this week after a 57 year old benefits cheat was jailed for nine months and is now subject to a proceeds of crime investigation into his affairs after he fraudulently claimed £64,000 despite his wife receiving a £105,000 inheritance. (Ed. It bears repeating that charges of benefit fraud could easily have been avoided had the person who his inherited from had good advice which took into account their circumstances.)Michael Mead had appeared in court after being charged with benefits fraud for falsely claiming income support for eight years by saying that he and his wife were unemployed.When he appeared in court to face charges he failed to mention the inheritance which had already been paid to his wife at that time. Sentencing was delayed when he promised to repay the falsely claimed benefits however when appearing for sentencing this week he had repaid just £261. In addition, he had continued to claim housing benefit and council tax benefit while awaiting sentencing and claimed the inheritance had been used to buy inheritance bonds and he had no access to capital to make repayments.Also a bereaved wife has been charged with fraudulently claiming £8000 widow’s allowance despite her new partner moving into their home.The previously named ‘mum of the year’ had failed to declare her change incircumstances which meant that she was no longer entitled to the benefit.The Coventry Telegraph reported that Ian Reynolds failed to declare an inheritance of £25,000 and carried on claiming Housing Benefit, Job Seekers Allowance and Council Tax Benefit for five years.During a hearing at Rugby Magistrates Court Mr Reynolds pleaded guilty to three counts of benefit fraud and was given 200 hours of community service. The defendant was also ordered to pay £200 in court costs and was given a 12 month supervision order.With cases on the rise, it is important that you do not inadvertently get involved in assisting with fraudulent activity. Be aware of the possibility of fraud occurring and be on the lookout for any signs of deception.
Over here, it is not always possible for beneficiaries to see the Will until after probate has been granted. But prompt action is essential as otherwise the funds might disappear and not be recoverable. Over here, there is a theoretical limit of 6 months after the grant to raise a dispute, so it pays to keep an eye on the list of Probate Grants so you can act as soon as Probate approval is granted, and request a copy of the Will (if any) and Grant. If there is no will, have a look at the Rules of Intestacy.
Our advice is always if you have suspicions, ask for a copy of the Will, and hit that you will take it further if you don’t get one. Many executors will then comply (though they don’t have too!)
If that doesn’t work, we would ask a solicitor to write a letter requesting a copy, and gently pointing out the risk of enormously expensive probate disputes (contentious probate) which can leave everyone losing out badly.
If that doesn’t work, if you can gather any evidence of wrongdoing (or the intention of wrongdoing), then you may have a case for raising a dispute immediately, before probate is granted. But it is pointless raising a dispute without evidence, except as a negotiating tactic.
We don’t deal with contentious probate ourselves, but we do know some firms who are genuinely out to help and won’t charge excessive fees – unless you are so angry you push things too far, against advice, which does happen. Negotiated settlements often mean getting something rather than nothing.
But I would repeat the point that many executors do not understand the Wills they are administering, and given some help, would do the right thing, so don’t rush into legal action.
More help on Probate/ Will Disputes.
]]>From February 16th, each certificate will cost £11 – up from £4 each. Typically, families need 5 to 10 certificates for production to various authorities. Five will cost £55 instead of £20, ten £110 instead of £40.
Over the last few years, dozens of local Probate Registries have disappeared, making it unrealistic for the majority of the population to visit one.Not only that, but they don’t even have enough staff to answer the phone, never mind help anyone.Need forms – you are supposed to ring the HMRC Helpline on 0300 123 1072. The number of complaints we get would indicate that either the answering machine is overloaded or no one has time to deal with it. Yes, you can get the forms online, and even fill them in online: if you have the necessary computer and computer skills, which many people do not.And the HMRC “Help”line needs to be prosecuted under the Trades Description Act we are told. (Apparently, they don’t answer the phone very often either.)
When fees from Government Departments are supposed to cover costs, not be an additional source of tax, it was a little surprising to see costs rising from £215 to as much as £6,000. But fortunately, that didn’t happen, and it remains free if the estate is worthe less than £5000, and is £273 for all estates ocer that. A sliding scale might have been fairer but at least the original hike (below) didn’t happen.This didn’t happen:Interestingly, the increase does not carry on above that, so the very wealthy are far less affected than middle England. The “poor” do get a small tax break with no fee for estates under £50,000. Many of those will already have been ravaged by Community Care Tax!Estates over £2m will now pay £6,000.Between £1.6m and £2m the fee will be £5,000.Between £1m and £1.6m £4,000.Estates worth between £500,000 and £1m will pay £2,500.Those in the £50,000 to £300,000 bracket will pay a more reasonable £250.Those estates valued at less than £50,000 will be exempt compared with the current and lower threshold of £5,000.
]]>Children from 1 to 18 + react very differently to death and funerals – as do adults.One child we know was gently forced to see a dead relative and suffered badly from the experience. Another might find it comfortably. Perhaps it is important to let the child make the decision and not to be “led” by an adult? Who knows what is best – certainly not the author! Anyway, we thought these US resources might be of interest in opening up a discussion before any decisions are made.
https://vimeo.com/251702307
Children probably simply prefer straightforward, honest information. They need to understand what has happened as much as it is possible for them too. When they are older, they may not remember the full details of the funeral but they will ideally remember that it was a meaningful, non-threatening experience and that they were involved and included in it.Actually seeing the dead body may be more than they can cope with, especially if they are not carefully prepared for the experience and not thrust unsuspecting into a room with the body of a person they loved. Without careful planning and explanation that can be a horrific experience, perhaps thrust upon them by a well-meaning but distraught parent who may not be thinking clearly.Useful links
My husband and I were appointed executors by our best friend who was diagnosed with terminal cancer and given 6-8 months to live. He wrote a will stating that after debts, funeral and testamentary expenses, legacies and inheritance tax are paid then any monies left should be paid to his daughter. He has no property, he lived in a shared house, and the only money he has will be his private pension when that is paid out. A couple of weeks ago he stated to us both that he wanted to give each of his brothers and sisters £1000 each. We advised him to write a letter and put it with the will. Sadly he passed last week, just 6 weeks after being diagnosed without having a chance to write the letter, we had to take him to the hospital as he was so unwell. Are we allowed to uphold his wishes even though it was never written but it was something he stated to us both.
It depends. Sometimes assets are left to the executors to dispose of as they see fit, and in this case they certainly have the right to act on a verbal wish and are unlikely to be challenged. At other times they could get themselves in hot water if any other beneficiary feels they have lost out through an unauthorised gift.That said, Minor Gift Schedules are quite commonplace, but they should be mentioned in the Will and should only contain things which are very small in comparision with the total estate and of very limited value.
More on Probate Disputes. Probate Claim Checker. Probate Quotes
]]>We are often asked who has a right to see the Last Will and testament and the law in this area is rather peculiar, and if the author ran the country, many laws in the area of estate planning would be reformed to bring in some common sense. But I digress… More on Probate Disputes. Probate Claim Checker. Probate Quotes
My Dad passed away at the end of June. When he made his will several years earlier he asked me to be executor of his will and I agreed. Not understanding much I didn’t ask his wife, my stepmother, where I would get the will from to find out what he wanted until after he was cremated. Her reply was that she was sole executor and beneficiary and I would only have to step in only if she preceded him. She never let us see it. Being naive I thought I had no reason to disbelieve her. Just lately things seem to not be adding up and to top it off the funeral directors have contacted my brother and me to say she has not paid the funeral bill. I just would like to know where we would stand and if it is too late to see the will and where we would have to go to obtain a copy because we knew she will refuse to let us see it herself. Will we need to apply to probate or are we too late?
If your dad married after the Will was made, it was probably invalidated and he may have made a new one.If not, if he owned the home in his sole name, probate will be required, and once that is granted you will have the opportunity to see the Will once that is completed. But unless the executors chose to let you see a copy, you will have to get a copy Will the same as any other member of the public can once probate has been granted. To see how to see the Will after probate has been granted, click the link. If probate is not required, then you won’t be able to obtain a copy unless the executors decide to give you one.If the property was owned with the step mother, then it will depend on the type of ownership, as one way the step mother would inherit automatically (so no probate needed) the other way she would not and probate would be required.See http://www.theprobatedepartment.co.uk/your-probate-questions/inherit-the-house/The other alternative is to contact the person who made the Will, and they may confirm that nothing is wrong or if you are a named executor, they will give you a copy. As a beneficiary they may well too, or at least confirm whether you are mentioned in the Will, but you don’t have any rights, so you can’t demand information. Remember that a new Last Will could have been made, or a Codicil written cancelling or amending the previous Will.As the debts are not being paid you could possibly apply for letters of administration to sort out the estate. This would inevitably be contentious and we could certainly refer you to a firm who would advise you as we don’t deal with contentious estates. (That is ones where there will be a dispute!) However, we can put in a Caveat which is in effect an attempt to force the other side to talk to you, but that won’t work if probate is not required, and you may need to justify your suspicions that things are not being handled correctly.It may be of course that she just has no money.Let me know if you would like to be contacted, and good luck!Steve