Frequently Asked Questions
Q - Surely my Will is perfectly safe at home, isn’t it?
If the original, signed and witnessed Will cannot be produced, the Testator will normally be presumed to have destroyed it, and to have died intestate. A copy may prove that a Will was made, but not that it was in force at the time of death.
The only way to guarantee the safety of those important documents, such as your Will, is to deposit them into a safe storage unit where they will be fully insured and secured against loss, damage, fire and flood, for a modest annual fee.
Q - We’ve heard that if we transfer our house to our daughter, it won’t be taken into account should one or both of us have to move into a care home
 If you sign over your house to your daughter during your lifetime and continue to live in it :-
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A local authority can overturn the transaction, without limit of time, if they consider that it was done to avoid paying long term care fees.
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The value of the house will be added back into your estate for the calculation of Inheritance Tax.
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Unless your daughter lives with you, there may be Capital Gains Tax to pay.
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If your daughter becomes involved in a marital dispute or financial difficulties, your home may be considered to be part of her assets.
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Income Tax may be payable on the rental value of your home.
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If your daughter dies before you, your house will be part of her estate and go to her beneficiaries.
There are, however, steps that can be taken which are perfectly legal and which severely limit the amount a local authority can charge, allowing a couple to save all or part of their home from care costs. It involves changing the way in which the home is jointly owned and at the same time each making Wills to deal with the future ownership and occupation of the house by their spouse in the event of their death.
Q - I live with the father of our ten year old son but we’re not married. If I die, my partner will automatically be able to look after our son, won’t he?
 Any father of a child born before 1st December 2003 who is not married to his child's mother will not automatically have parental responsibility for that child. This means that if the mother dies first, social services could become involved to formally appoint a guardian who may or may not be the child’s father, especially if there are applications made by the mother’s side of the family for guardianship.
This can all be avoided simply by the child’s mother making a Will appointing the child’s father as guardian or by entering into a Parental Responsibility Agreement or by the parents of the child marrying after the child is born.
Q – I have savings totalling around £25,000 and I live in a care home. This means that I currently have to pay all my care home fees. Is there any way I can avoid this?
The single capital limit (2011/12) for a resident living in a care home in Wales is £22,500 (for England there is an upper capital limit of £23,250). This means that once a resident’s capital falls below this level, they will be subject to means testing and receive a contribution from the local authority for part of the cost of their care fees. To legitimately reduce capital, consideration might be given to making gifts to relatives or friends (£250 per person per year), investing in a Pre-Paid Funeral Plan and paying off any loans you may have, or a number of other ways which are perfectly legal.
If you needs are primarily healthcare rather than social, then you may be eligible for the cost of some or all of your needs to be met by the NHS - even where you reside in a care home environment.
Q – Couldn’t I make my Will using one of those £19.99 online services and save money?
 A Will is an individual, personal document to suit your particular circumstances and needs to be written with skill and precision in order to ensure that it does what you want, how you want it. To do this adequately requires a face-to-face discussion, to consider your wishes and circumstances and how they can be incorporated clearly whilst minimising administration, potential disputes and taxation.
Even questions need to be clearly defined and understood before they are answered. For example, if you were asked "how many children do you have?" would you know whether to include natural children, step-children, illegitimate children, foster children or adopted children?
Ultimately, your Will also needs to be properly signed and correctly witnessed. If these formalities are not strictly adhered to, your Will could be invalidated.
If you consider all the pitfalls, £19.99 doesn't sound like such a good bargain after all, does it?
Click here to contact Advantage Legal.
We can offer you jargon-free, expert advice and practical solutions to these and many more questions relating to will-writing, estate planning, powers of attorney, court of protection, probate and estate administration, long term care issues and property-related matters.
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