Trusts

The 6 Duke of Westminster died in August 2016. Leaving the bulk of his £9 Billion  Estate to his eldest son Hugh, who at 25 year of age became the 7th Duke of Westminster.

Unlike the rest of us, if Gerald ( the deceased Duke) had left his estate in a Will. Giving everything to his eldest son Hugh. Hugh would have had to pay an Inheritance Tax Bill of somewhere in the region of £3.6 Billion.

This sum is not far off the total sum raised by Inheritance Tax per year. But do not worry, gentle reader, as the Westminster’s had access to the finest Lawyers in the land and accountants and financial advisers and the rest, and the whole of the Duke’s Estate was left in Trust.

So lucky young Hugh ( 25) got the Estate and didn’t have to pay any  tax. Trebles all round. Well done old chap.

Well they hadn’t done anything wrong. But my mother was absolutely livid about it. “I’ve paid tax on mine and your father’s money” She said “I’m not going to pay it twice” “You’ll never pay the children’s University Fees” Well she’s right. But we aren’t talking about an estate of £9 Billion, even if Dot and Al were careful savers.

What Hugh’s Dad had done was put all his estate in to a Trust. Think of it like a box, stuffed full of 9 Billion pound coins or £100,000,0000.00 tenner’s (used of course) if that’s easier.

You choose who the Beneficiaries are ( the survivors of your death, oldest child etc) Appoint Trustees to manage the Trust. Pay the 10 yearly Inheritance Tax Periodic Charge ( currently at 6%) and watch the money cascade from generation to generation. Bingo.

It gets better; Because Gerald and his Dad’s before him were all landowners, there are really generous Agricultural and Business Property reliefs available, to further mitigate tax. Brilliant. And we live in a Democracy.
Now, having cheekily smirked whilst we tug our forelocks. There is nothing to stop you, Yes You. From creating a Trust for your own children.

Get money out of your estate and into Trust.

So you can get assets and property out of your estate and into Trust, so when you die, they don’t belong to you, or form part of your estate. Therefore, not counted for Inheritance Tax purposes. (40% saved Jonny.)

However, remember, all the Cash, stocks shares, property and precious items, belong to the Trust. Not in someone’s estate where they can be taxed.

Using a trust also means you can say what happens to the assets, who the money goes to, at what age, so you can protect young and vulnerable beneficiaries, or spend thrift children.

Don’t give them anything till they are 30 for example.

You can give your new wife boyfriend girlfriend lover the right to live in a house or the penthouse for life and still retain the right to pass it onto the children when they die. It’s only fair.

The options are limitless. We are being frivolous about what is a very serious business and when we at Paul Darnborough Legal come to prepare your Trust, please be assured we will give you the most serious, accurate, considered and thoughtful advice. We will also run the draft Trust passed our Expert Barrister. You only need to do it once. So let’s do it properly.

You will need to appoint Trustees, who have a legal duty to manage the trust assets and look after the trust.

There are many types of Trust for example

  • A Bare Trust. This is formed in writing a Will where you leave something to a Beneficiary in a Will.
  • Interest In Possession Trust. This allows the beneficiary of the trust to get income from the Trust, or live in Trust owned property. It does not allow the beneficiary to have ownership of the cash property or other assets that are in the trust, So they can’t sell your house, or reduce the estate. The Beneficiary could be your partner and the trust used to pass on your investments and other assets to your surviving children. Use this if you have remarried and want to protect your children from your first marriage.
  • Discretionary Trusts. Here you give the trustees absolute power to determine how to manage the trust. Including making investment decisions.
  • A Mixed Trust, Trust for a Vulnerable Person, Non Resident Trust. The list is endless depending on the purpose and what you want to achieve.

Have a look at our Website and it’s advice and guide to Trusts at Paul Darnborough Legal.

The options are dizzying and the process can be a bit intimidating. We are here to take all that stress away.

This is what we do, as your trusted advisers and Lawyers.

You don’t have to be as rich as the Duke but we all lead busy complex lives that need managing and putting in order. Let us take the strain out of that.

Come in for a confidential chat with Paul Darnborough Legal. Your personal legal service. For you and only you.

Contact paul@darnborough legal or ring 0161 241 2734 if you need our services.

The Will of Unintended Consequences

Can You Make a Will?

“Can you make a Will for my friend Brian?” Asked his best friend Ally  “Yes”

“Can you make it soon?  He’s ill” 

“Yes I but will need a letter from his Doctor saying he has ‘capability to make the Will he wishes to make. Meaning he has mental capacity.”

“Yes, no problem, we will have it done by tomorrow.”

So on Thursday I went to Brian’s house to prepare his Will. Brian, not his real name, was not well. He was connected to an oxygen tank and had very shallow breathing. The letter from his Doctor confirmed he had the necessary mental capacity to make a Will.

We managed, carefully,  to complete his instructions. Giving everything to his niece Michelle. That’s everything. And Nothing to his only surviving relative, his sister Anne.

I went home, it was 6.30pm determined to prepare the Will first thing next day.

I had a bad feeling and at 9.30am, this was confirmed. Brian died in his sleep. I was the last person to see him alive. You don’t forget things like that.

But, but, but. He had died before I could prepare and him sign the Will he wished to make. Meaning he died intestate; Without a Will

In these, all too common, circumstances the rules of inheritance follow the Intestacy Provisions. A set of rules that govern the order of inheritance where someone dies without leaving a Will

In Brain’s case, he wasn’t married. He had no children. Mum and Dad were dead and his next surviving relative (following the rules) was. ………Ta Dah………… His sister, whom his in his last conversation before his death, with me, was to make sure she had NOTHING from his Estate; House and Pension and Life Insurance ( think decent cash here)

So the process began of managing (getting in all the assets)  and distributing Brain’s Intestate Estate. Giving all of his money to his sister who he had expressly sought to exclude from his Will. True story.

You can avoid this. Ask Paul Darnborough Legal to prepare your Will. We are flexible; happy to  attend you at evening or weekends. Happy to make home visits. Happy to attend to the detail and fine tuning of your wishes. Happy to make any amendments you may require.

Contact paul@darnborough legal or ring 0161 241 2734 if you need our services.

The Care Act 2014

The Care Act 2014 is a dramatic peace of legislation. It aims to modernise adult social care law and create a holistic framework for

  • Clearer, fairer care and support
  • Wellbeing – physical, mental and emotional – of both the person needing care and their carer
  • Prevention and delay of the need for care and support
  • People in control of their care.
  • A new emphasis on wellbeing of the individual being the central aim of the legislation and the driving force behind care and support.

We at Paul Darnborough Legalare concerned that the act is not capable of delivering all that it offers. Indeed it is the failings in delivery of the services statutorily required that may demand our intervention.

In plain English, what the Act says it will do, will be different to what it does. If so we are here to make sure the law is applied correctly for your benefit. We think the promise will be different from the reality which will lead to legal challenges.

To discuss it’s impact on you, please do not hesitate to make a confidential appointment to consider this evolving area of legislation.

The Care Act was first published as a Bill in the House of Lords on 9 May 2013, following prelegislative scrutiny. The legislation, which aims to modernise adult social care law, received Royal Assent on the 14 May 2014, becoming the Care Act (the Act).

The Act is divided into three main parts:

Part One deals with the reform of adult social care and support legislation and is structured around an individual’s journey through the reformed system (be they someone in need of care, or their carer). The Act will put a limit on the amount those receiving care will have to pay towards the costs of their care, with a cap on care costs beginning in April 2016. The remainder of Part One of the Act, such as national eligibility criteria and universal deferred payments, will come into force in April 2015.

In summary, Part One covers a number of areas, including:

  • the general responsibility of local authorities as enshrined in Section 1, ‘wellbeing principle’
    assessment of needs and defining eligible need
  • charging and the cap on care costs
  • paying for care
  • safeguarding
  • provider failure
  • transition for children to adult services.

Part Two of the Act seeks to improve care standards by putting people and their carers in control of their care and support. It also provides a legislative response to the Francis Inquiry by increasing transparency and openness. The intention is to enhance the quality of care.

Part Three of the Act establishes Health Education England and the Health Research Authority this has little concern for us at this stage.
The Care Act replaces a whole host of care provisions to unify the law in one act that makes the demanding area of Care law manageable.

Said Care Minister Norman Lamb:

“Until now it’s been almost impossible for people who need care, carers, and even those who manage the care system, to understand how the previous law affecting them worked. Over nearly 70 years, it has been added to again and again and is out of date and confusing. The Care Act has created a single, modern law that makes it clear what kind of care people should expect.”

The Care Act 2014 builds on recent reviews and reforms, replacing numerous previous laws, to provide a coherent approach to adult social care in England.

Part one of the Act (and its Statutory Guidance) consolidates and modernises the framework of care and support law; it set out new duties for local authorities and partners, and new rights for service users and carers.

What does the Act aim to achieve?

  • Clearer, fairer care and support
  • Wellbeing – physical, mental and emotional – of both the person needing care and their carer
  • Prevention and delay of the need for care and support
  • People in control of their care.
  • A new emphasis on wellbeing

The new statutory principle of individual wellbeing underpins the Act, and is the driving force behind care and support.

Prevention

Local authorities (and their partners in health, housing, welfare and employment services) must now take steps to prevent, reduce or delay the need for care and support for all local people.

Integration

The Act includes a statutory requirement for local authorities to collaborate, cooperate and integrate with other public authorities e.g. health and housing.

It also requires seamless transitions for young people moving to adult social care services.

Information, advice and advocacy

The Act places a duty on local authorities to ensure that information and advice on care and support is available to all and when they need it. Independent advocacy must also be arranged if a person would otherwise be unable to participate in, or understand, the care and support system.

Diverse care markets

There must be diversity and quality in the market of care providers so that there are enough high-quality services for people to choose from. Local authorities must also step in to ensure that no vulnerable person is left without the care they need if their service closes due to business failure.

Safeguarding

A new statutory framework protects adults from neglect and abuse. Safeguarding adults boards will be set up in every area Assessment and eligibility. Anybody, including a carer, who appears to need care or support is entitled to an assessment, regardless of financial contact with the council, must focus on outcomes important to the individual. Any needs currently being met by a carer should still be included in the assessment. The local authority must then apply a national eligibility threshold to determine whether the individual has eligible needs.

Assessment and eligibility

Anybody, including a carer, who appears to need care or support is entitled to an assessment, regardless of financial contact with the council, must focus on outcomes important to the individual. Any needs currently being met by a carer should still be included in the assessment. The local authority must then apply a national eligibility threshold to determine whether the individual has eligible needs.

Charging and financial assessment

If the type of care being considered is chargeable, then the local authority must carry out a financial assessment. From April 2015, all councils must offer deferred payments and from April 2016, all people with eligible needs will have a care account to set out the notional costs accumulated to date towards their cap on care costs.

Care and support planning

A local authority must help a person decide resources. The assessment, which starts at first how their eligible needs will met through the preparation of a care and support plan or support plan for carers, and review it regularly.

Personal budgets and direct payments

A personal budget will form part of the care and support plan or support plan. Where a person, including a carer, has a personal budget, they can have a direct payment. From April 2016, self-funders with eligible needs will have an independent personal budget (IPB) to record the notional cost of meeting their eligible needs.

When will the Act become effective?

Most of the changes take effect from April 2015. However, the major reforms to the way that social care is funded – including the care cap and care account – will not come into operation until April 2016.

Summary

The Care Act consolidates good practice in statute as well as bringing in new reforms. It should embed and extend personalisation in social care as well as increasing the focus on wellbeing and prevention. It should also enable local authorities and partners to have a wider focus on the whole population in need of care, rather than just those with eligible needs and/or who are state-funded. For people who need care and support, and their carers, there will be:

  • better access to information and advice, preventative services, and assessment of need
  • an entitlement to care and support
  • a new model of paying for care, with a cap on the care costs for which an individual is liable
  • a common system across the country (national eligibility threshold).

Contact paul@darnborough legal or ring 0161 241 2734 if you need our services.

Divorce is no fun

I know you don’t care, but for your information Divorce Lawyers have the highest rate of depression, suicide, alcoholism and stress within our esteemed or reviled profession.

Why is this you ask? There are many reasons; It isn’t easy being a trusted advisor, a heavy case load of bitter divorce cases is not easy to carry. The lengthy Friday evening phone calls can be wearisome. The general dissatisfaction from the whole process is ultimately….. depressing for everyone. Particularly the professional trying his or her best to help you through it. No one. No one wins.

Okay. Our approach is to be up front and honest about this with you. Let’s be clear, you are going to be worse off. What is in the matrimonial pot is going to have to stretch to 2 houses, 2 sets of bills and look after everyone’s needs. Everyone is likely to be hurt by the process.

So how can we approach this? At Paul Darnborough Legal. We will sit you down and say the above. Then work out a strategy, look at the figures, examine the contributions to the marriage, put the children first and address the needs of the parties in the marriage.

In British Law the starting point for the division of matrimonial assets is 50 50. Yes, I know she/he never worked but the lens of the law is unemotional. A good financial remedy is one that neither party is happy with. That’s the rub and don’t blame your lawyer, please.

We aim to get to the solution without the pain or cost. Still taking on clients.

Contact paul@darnborough legal or ring 0161 241 2734 if you need our services.

Stand Up to Bullies

These are coarse times. We need our leaders to behave well because if they don’t, no one else does.

People can be cruel. People think they can verbally criticise, or digitally attack you, your reputation and your character get away with it. They can’t. We have strategies applying the law to stop this and help protect you.

Everyone is a keyboard warrior, lot’s of people can try to mobilise opinion against you. This can have a devastating effect on your wellbeing, happiness, confidence and ultimately working environment.

Do not suffer alone.

Come and see us and tell us about it. A problem aired is a problem halved. We will listen and help your problem in it’s context. Then devise a solution to suit you and your wallet.

From a cease and desist letter, mobilising our contacts with the Police and the Crown Prosecution Service to ultimately a prosecution for damages. There are many options to consider. Do not underestimate the power of a well crafted Solicitors letter, dipped in the well of legal knowledge.

We just want to live in peace. Let us help you do so. Paul Darnborough Legal Standing up to Bullies since 2010.

Contact paul@darnborough legal or ring 0161 241 2734 if you need our services.

 

Social Media Trolls

At Paul Darnborough Legal are seeing a huge increase in people who are being trolled and bullied, harassed and lives made a misery on social media.

Each case is different and the solutions offered by us here at Paul Darnborough Legal are different and tailored, like a beautiful suit or chemise to the needs of the individual

For example.

A professional investor in the stock market found himself and his family being vilified and harassed by a disgruntled individual. In this rare and unusual situation the harassment had strayed from the civil into the criminal code. The behaviour, comments and abuse were clearly a pattern of conduct amounting to  and causing harassment, alarm and distress.

In this situation we arranged for our client to attend the police station and make a formal complaint and the police did the rest.

We were on hand to make it clear that if there were to be a repeat of any behaviour  there would be a civil damages claim to answer. This would have huge financial consequences along with legal and court costs for the respondent to pay.

Another case involved a strange situation where a jealous and disgruntled community closed ranks against a famous artist to insult and deride his work. Our solution was to look at the source of the problem. There were 3 individuals instigating and promoting the discord in the community.

By directing targeted correspondence separately to and personally crafted to isolate the people involved we were able to nullify the aggression from 2 of the individuals thus isolating the prime mover in the whole matter.

These tactics were specifically adopted to deal with the situation that existed. We were reluctant to issue court proceedings due to the cost and time an action would take and this was a matter which had not broken the criminal code.

It’s a sad fact of life that the power of social media can be used in such a destructive and hurtful manner. Where you can be slandered, defamed and be trolled with what appears to be no redress and consequence. We suggest a quick phone call or consultation with Paul Darnborough Legal may be a step in the direction of redressing that balance and provide you with the support and solutions to solve this modern day problem. 

Contact paul@darnborough legal or ring 0161 241 2734 if you need our services.

Some Lives Don’t Matter

Sam is a young man you would trust and instinctively warm to, someone who can handle himself and has a quiet assurance. Those traits suited the gang who recruited him for county lines work.

So when Sam left HMP Walton he was offered train tickets and heroin to sell in the Market Town of Macclesfield. Assisted by Thomas, who had made the move a few years earlier, but was back on the gear.

So the plan; pack Sam’s bags and sell the gear across county lines. Trip to the Market town of Mack to sell the smack.

All works well for a few months or weeks, who knows. Our boys don’t realize their street dealing makes them stand out like, well like street drug dealers. Plus there are few mixed race lads in Macc. It’s a brown town but only in bags.

So. Tom using with his girlfriend. He was one of 8. Mum had enough by the time Tom was 2. Dad gave up work to bring up the kids but it was too much. Tom left Liverpool for Bacup, to look after his big sisters kids, she was working and her partner was sentenced to 20 years for an attempt murder. Things were good until he lost his job. So back to the Pool. Back on the gear for Tom. He managed to escape to Macc. But kept his contacts and Sam came too.

Sam. Kicked off after a racist insult too much and got a 3. Was tapped up in Prison. It was all he could do.

Ho hum so hum drum. Tom and Sam, have made nothing. The gear and the cash and the phones are all those up the chain. The cash is accounted for and well. You work for others.

Charged with Possession with intent to supply class A Drugs. Sam, on license went down for 4 (years.) Tom negotiated a plea to allowing premises to be used blah blah. 35 weeks, result.

Tom was sanguine. He’s got a PT certificate. His family have disowned him. But he’s optimistic for a new start. Sam well. Back on the gear.

The Judge didn’t look up. Some lives don’t matter.

We are still representing the poor, disenfranchised and needy before the criminal courts.
Contact paul@darnborough legal or ring 0161 241 2734 if you need our services.

Four Reasons Why You Need a Will

It’s easy to make a will – and it will save your family unnecessary distress at an already difficult time.

  1. A will makes it much easier for your family or friends to sort everything out when you die – without a will the process can be more time consuming and stressful.
  2. If you don’t write a will, everything you own will be shared out in a standard way defined by the law – which isn’t always the way you might wish.
  3. A will can help reduce the amount of Inheritance Tax that might be payable on the value of the property and money you leave behind.
  4. Writing a will is especially important if you have children or family who depend on you financially, or if you want to leave something to people outside your immediate family.

It’s the most important document you can make and two thirds of us fail to get round to doing it.

Unexplained Wealth Order. All You need to Know.

Spent £16 million in Harrods, bought a £12 million pound house, plus the Yacht. Read on.

1. Introduction

This guidance is issued to raise awareness and a basic understanding of the provisions of the “unexplained wealth order” and “interim freezing order”. It is not a statement of law and is not detailed guidance or interpretation of the power. It should not be relied upon in operating the powers or in any related proceedings. Officers operating the powers must be aware of the provisions in, and the codes of practice issued under, Part 8 of the Proceeds of Crime Act 2002 (POCA). The legislation also provides a full definition and description of terms used and the relevant procedures that may be referred to below.

2. Description

The new powers of “unexplained wealth orders” (UWO) and the supporting “interim freezing orders” commence on 31 January 2018 (except they will not come into force in Northern Ireland at that time). A UWO is an investigation order issued by the High Court (Court of Session in Scotland) on satisfaction of a number of tests.

A UWO requires a person who is reasonably suspected of involvement in, or of being connected to a person involved in, serious crime to explain the nature and extent of their interest in particular property, and to explain how the property was obtained, where there are reasonable grounds to suspect that the respondent’s known lawfully obtained income would be insufficient to allow the respondent to obtain the property. The test for involvement with serious crime is by reference to Part 1 of the Serious Crime Act 2007.

A UWO can also be applied to politicians or officials from outside the European Economic Area (EEA), or those associated with them i.e. Politically Exposed Persons (PEPs). A UWO made in relation to a non-EEA PEP would not require suspicion of serious criminality.

A UWO is a civil power and an investigation tool. It requires the respondent to provide information on certain matters (their lawful ownership of a property, and the means by which it was obtained). It is important to note that, as an investigation power, a UWO is not (by itself) a power to recover assets. It is an addition to a number of powers already available in POCA to investigate and recover the proceeds of crime and should therefore not be viewed in isolation.

The ability to apply for a UWO is limited to those agencies defined as an “enforcement authority”, namely, in England and Wales;

  • the National Crime Agency,
  • Her Majesty’s Revenue and Customs,
  • the Financial Conduct Authority,
  • the Serious Fraud Office, or
  • the Crown Prosecution Service)

The specific mandates of these authorities is provided in an annex to this circular. These mandates will inform the authorities as to the types of cases in which they may seek a UWO.

In Scotland, the powers are limited to the Scottish Ministers (who act through the Crown Office).

It is therefore not available to the wider law enforcement and prosecution community, except by referral to an “enforcement authority”.

If evidence is produced in response to a UWO, then a decision will be made on how to proceed using that material.

The subsequent use of the material may include referring the evidence to another body to consider criminal or civil action. It is important to note that evidence compelled under a UWO cannot normally be used against the person who provided it in any subsequent criminal prosecution.

A failure to provide a response to a UWO may give rise to a presumption that the property is recoverable under any subsequent civil recovery action. Civil recovery is a procedure in the High Court (Court of Session in Scotland) to recover the proceeds of crime (see Part 5 of POCA). Civil recovery powers are also only available to the enforcement authorities listed above.

A person commits an offence if, in purported compliance with a requirement under a UWO, they make a statement that the person knows to be false or misleading in a material way, or recklessly makes a statement that is false or misleading in a material way. A person guilty of an offence is liable to conviction on indictment to imprisonment not exceeding two years and/or a fine; or on summary conviction, to imprisonment not exceeding twelve months and/or a fine.

3. Points of interest

Law enforcement agencies and prosecution agencies who do not have direct access to the powers can consider referring a suitable case to an enforcement authority. Prior to making a referral, the referrer should have reasonable grounds for suspicion that an individual, who is either a PEP or involved in serious crime, has insufficient legitimate income for the purposes of enabling the individual to obtain specific identified property (of a value over £50,000), which can be shown to be in their possession. The enforcement authority can then determine whether or not an application should be made.

Agencies, including the enforcement authorities, will be required to consider their legal powers and abilities to share information. This is both when referring information to each other either to support an application for a UWO, or to consider civil or criminal action in regards to the information obtained in UWO.

If information or evidence is referred to an agency, it needs to be aware of the existence of any ‘interim freezing order’ against a property and the deadline by which that will be discharged (i.e. any other power to secure the property will need to be obtained in that period).

The codes of practice relating to the investigation powers under POCA are relevant to UWOs. The legal provisions are in sections 1 to 6 of the Criminal Finances Act 2017 which introduced new sections 362A – 362R and 396A – 396U of POCA.

Making a Will

Try thinking like this; Just because you have made a Will doesn’t mean you are going to die.

And; Because you haven’t made a Will doesn’t mean you are going to live forever.

You won’t none of us will unfortunately we will all leave this beautiful world. Let’s do it properly. I don’t mean like David Bowie, leaving a concept album and videos predicting your death. Just a straight forward will.

By making a Will you can

Save tax legitimately.

Decide to whom your property and possessions go to after your death

Amazingly 70% of British adults have not made a Will and a similar number who have children under 18 year of age. It is such a risk. And we make writing and preparing your Will a happy occasion and empowering

Just call it personal life planning

We all lead complex messy lives. If you die with out a will then the law determines how your estate is divided up. Taking NO account of your personal circumstances.

These provisions are dated and rigid and only cover a certain set of scenarios. So you lose any say in what happens to your estate.

You lose control of your assets and you could leave those who you love and have cared for you most. With nothing.

By failing to make a Will you could deprive your family of much needed financial support for University fees, a deposit for a house and be paying tax at 40%.

You will be surprised that using a Solicitor is not expensive, we are flexible and can come to see you, at your home at a time to see you.
We are Professional; 6 years training. Fully insured and regulated and based locally

We aren’t going anywhere. You know who you are dealing with and where we are. If you need to amend and alter your Will, easy, just let us know.

You should really alter your Will as circumstances change.

We are more than Will writers. We are trusted advisors.

Think about that, a trusted advisor on your doorstep. Empathetic Professional, discreet. And surprisingly cheap for what is the most important document you will ever prepare.

Contact me directly on paul@darnboroughlegal.uk or ring 0161 241 2734