NSS Legal Blog

Pensions and Inheritance Tax from April 2027: Rethinking How You Leave Your Pension

Mon, 18 May 2026 00:00:00 +0100

From April 2027, most pensions will be brought within the scope of UK inheritance tax - a fundamental shift in how pension wealth is treated on death. For those with substantial pensions, the strategy of leaving a pot intact for the next generation requires further thought. We set out what is changing and the strategic options now worth considering.

For the past 11 years, defined contribution (“money purchase”) pensions have occupied a uniquely favourable position in UK estate planning.

While assets in an individual’s estate could be subject to inheritance tax (IHT) at 40% above the available nil-rate bands, since 2006 a pension – in the event of many pension members dying below age 75 - could pass to any beneficiary free of inheritance and other taxes. The funds inside the pension continued to grow free of income tax and capital gains tax. For HNW clients with substantial wealth, there was an obvious strategy: minimise pension drawings as much as possible to accumulate gross for future generations.

That position is changing. From 6 April 2027, most defined contribution pension funds will be brought within the scope of inheritance tax on death where there is no remaining spouse or civil partner. Other pension tax advantages such as tax relief on contributions and exemption from income tax and capital gains tax on the assets inside the wrapper remain in place. On death however, the pension will be valued and added to the deceased's estate for inheritance tax purposes, in much the same way as any other asset.

This is a fundamental change. Benefit drawing strategies that were tax-efficient under the pre-2027 regime are no longer optimal, and in some cases should be modified to retain tax efficiency. Wills, pension nominations and lifetime planning all need to be reviewed together rather than in isolation.

What is changing in April 2027

In summary:

Most defined contribution pensions will be brought within the inheritance tax net on the death of the pension member and his/her spouse or civil partner. This applies whether the pension is in drawdown or untouched.
Funds remaining in pension schemes will be added to the deceased's estate for the purposes of calculating inheritance tax due.
The spouse exemption will continue to apply. Pension assets passing to a surviving spouse or civil partner will remain exempt from inheritance tax, in the same way as other assets passing to a spouse.
Separately, the income tax position on death benefits continues to operate. Where the pension member dies before age 75, beneficiaries can usually draw the funds free of income tax. Where the pension member dies on or after age 75, beneficiaries pay income tax at their marginal rate on funds drawn depending on their tax residency. This income tax position is unchanged by the 2027 reforms.

The combination of inheritance tax (potentially 40% on the pension fund above the available nil-rate bands) and income tax on drawdown for post-75 deaths can produce effective tax rates on inherited pension wealth of up to 67%. That top headline figure is lower than the 82% rate which applied pre April 2015 but does not need to be incurred.

Some categories of pension schemes, particularly defined benefit pensions and certain pre-existing structures fall outside the scope of the new rules. The detail of what is and is not in scope continues to be subject to consultation and finalisation, and any individual pension structure should be reviewed individually.

Why previous strategies may no longer apply

Under the pre-2027 regime, the pension itself fell outside the scope of inheritance tax, so, leaving a large pension pot to children or grandchildren was an efficient way to pass meaningful wealth down a generation. Other assets in a personal estate such as investment portfolios, property, business interests needed to be drawn down or restructured for inheritance tax efficiency during the lifetime of an individual, while his/her pension could be preserved.

Under the post-2027 regime, that approach changes:

A pension fund is no longer outside the inheritance tax net. So, for example, a £1.5m fund say passing to children will, all other things being equal, attract the same 40% inheritance tax charge that any other asset would attract above the available nil-rate bands. Of course, the difference is that the pension scheme is the only asset that has been accumulated tax free with tax relief on the original sums invested.
For deaths on or after age 75, the layered income tax charge on beneficiaries' drawdown means the effective tax rate could be substantially higher than 40%.
The historic "preserve the pension intact and spend other assets" strategy does not now deliver the intended result automatically.

For couples where one or both spouses hold substantial pensions, the practical question becomes: how should the overall family wealth - pension and non-pension - be structured to minimise total tax exposure across both deaths, and to provide for children or grandchildren in the most efficient way subject to any required protection or control?

Alternative responses - gift during lifetime and leave both the estate and the pension to the surviving spouse

Where there is a surviving spouse/civil partner there are four straightforward steps to consider.

Step 1 - lifetime gifts

For pension members who have surplus income, there is an opportunity to begin moving wealth out of the estate now during their lifetime rather than waiting till death. The member can make use out of the “gifts out of normal income” exemption. It allows unlimited gifts from a donor's income to be made free of inheritance tax, provided three conditions are met: the gifts are made out of income (not capital); they form part of a regular, established pattern; and they leave the donor with sufficient income to maintain their usual standard of living.

Pension drawdown income, taken regularly, can qualify as "income" for these purposes. For a pension holder whose pension is meeting more than their lifestyle needs, the surplus drawdown can be gifted directly to children, grandchildren or other beneficiaries on a recurring basis which could be typically monthly, quarterly or annually and those gifts will fall outside the donor's estate for inheritance tax purposes from the moment they are made. There is no seven-year survival period to wait out as there is with a potentially exempt transfer.

To benefit from the exemption, the gifting pattern must be evidenced - typically through records of the income source, the gifts made, and confirmation that the donor's standard of living has not been affected.

Step 2 - direct both estate and pension to the surviving spouse

The Will is structured to leave the residuary estate (or as much of it as is consistent with the family's wider wishes) to the surviving spouse outright. The pension nomination is updated to direct death benefits to the surviving spouse. Both transfers attract the spouse exemption and are therefore free of inheritance tax on the first death.

The result is that the surviving spouse holds the combined family wealth, including the pension. Inheritance tax has been deferred although not eliminated until the second death. There could be family problems to consider if the surviving spouse is a second spouse

Step 3 - draw on capital or income from the pension during the survivor's lifetime

The surviving spouse can draw on the pension during their own lifetime, either by way of regular drawdown income or by drawing on capital as appropriate to their circumstances. Two points are worth making here:

The pension wrapper itself remains tax-efficient. Inside the pension, the assets continue to grow free of income and capital gains taxes - a meaningful structural advantage that does not change in 2027. For wealth that is being preserved, the pension remains one of the most tax-efficient holding vehicles available in UK law.
Funds drawn from the pension are subject to income tax at the survivor's marginal rate (where the original pension holder died on or after age 75) or are free of income tax (where they died before age 75). Drawdown strategy needs to take this layered position into account.

Step 4 - gift drawn funds during the survivor's lifetime

Where the survivor's own resources are sufficient to maintain their lifestyle, funds drawn from the pension can be gifted during the survivor's lifetime to children, grandchildren or other beneficiaries. Two principal routes are commonly used:

Potentially exempt transfers (PETs). Outright lifetime gifts that fall outside the survivor's estate for inheritance tax purposes if the survivor lives for seven years after making the gift. PETs are flexible and can be substantial, but they carry the seven-year survival risk.
Gifts out of normal income. As discussed in Step 1, this exemption can also be used by the surviving spouse on the same principles

The combined effect of this four-step approach is that:

No inheritance tax is paid on the first death (spouse exemption);
The pension wrapper remains tax-efficient during the survivor's lifetime;
Funds drawn from the pension are gradually moved out of the survivor's estate during their lifetime, either as PETs or as gifts out of normal income, reducing the inheritance tax exposure on the second death.

Whether this strategy is suitable depends on the specific circumstances of the family including the ages and health of the spouses, the relative sizes of the pension and non-pension wealth, the income needs of the surviving spouse, the pattern of income from the pension, and the family's wider planning objectives. It is one option among several and is set out here to illustrate the kind of structural rethink that the 2027 changes invite.

Why the pension structure still matters

It is worth emphasising what the 2027 changes do not affect. Inside the pension, the position remains as it was:

No income tax on investment income generated by assets held within the pension wrapper;
No capital gains tax on gains realised within the pension wrapper;
Continued tax relief on contributions, within the applicable annual and lifetime limits.

For HNW clients, this is significant. Even after the 2027 changes, the pension remains one of the most tax-efficient long-term holding vehicles available.

A wider point - strategy in an unsettled tax landscape

It is also worth noting a wider point. The 2027 pension reforms are one example of a broader pattern: UK estate planning is currently operating against a backdrop of continual Government changes to the tax landscape. The shift to a residence-based regime in April 2025, the reform of Business Property Relief in the 2024 Autumn Budget, the changes to non-dom taxation, and now the pensions reforms are all examples of a tax landscape in which the rules have changed materially in successive Budgets and may yet change again under the Labour government with a different chancellor.

The Autumn 2026 Budget will be delivered against a backdrop of evolving political priorities, and continuing domestic and global uncertainty. It is genuinely not clear at this stage what changes that Budget or its successors will bring, or even who will be delivering them. The 2027 pension reforms are themselves still subject to consultation and could be modified before they take effect.

What follows from this is to take regular review. In a more stable tax environment, an HNW estate plan could reasonably be reviewed every five years, or on a material change in family circumstances. In the current environment, that cadence is not enough. The right approach is:

Establish a strategy based on the rules as they currently stand and as they are known to be changing;
Build in flexibility through properly-structured Wills, considered use of trusts, regular review of pension nominations, and disciplined documentation of any gifting strategy so that the plan can be adjusted as the rules evolve;
Review regularly ideally annually for clients with substantial wealth (in their estate or their pension), and certainly after any Budget that touches on inheritance tax, pensions, capital gains or domicile/residence rules.

The strategy that looks optimal in 2026 may need to be modified in 2027, 2028 or beyond. That is not a failure of planning; it is the realistic acknowledgment that planning in this environment is an ongoing conversation between clients, their solicitors, their accountants and their pensions and investment advisors - not a single decision taken once and left alone. Pension taxation changes regularly so any strategy may need to be revised. Changes may also need to be made to take into account the residency of the member or the beneficiaries.

How NSS Legal can help

NSS Legal advises HNW clients, business owners, professionals and internationally-mobile families on Wills, lifetime estate planning, trusts and considering their pension planning with the wider estate plan.

Both of our private client directors are full members of the Society of Trust and Estate Practitioners (STEP) and the Association of Lifetime Lawyers, and the firm's private client work is recognised by the Chambers UK guide.

If you would like to review your Will and pension arrangements ahead of April 2027, please contact Oli or Shamima directly on +44 (0)20 8209 1222 or at info@nsslegal.co.uk.

For more on our Will drafting service, our estate planning practice or probate and estate administration, please follow the relevant link.

^{This article is provided for general information only and does not constitute legal, tax or financial advice. The treatment of any specific pension or estate depends on the individual circumstances of the client and the rules in force at the relevant time. Clients should take advice on their own position from their solicitor, accountant and pension or financial advisor before making planning decisions. The rules summarised in this article are subject to ongoing consultation and may change before April 2027 or thereafter.}

How to reseal a Hong Kong grant of probate in England and Wales

Mon, 11 May 2026 00:00:00 +0100

Where a person has died in Hong Kong leaving assets in England and Wales - most commonly a UK property, a UK investment portfolio, UK bank accounts, a UK pension, or shares held by a UK registrar - the Hong Kong grant of probate does not, by itself, give the executors authority to deal with those assets. UK asset holders will require an English grant before releasing funds or transferring title.

In most cases, the executors do not need to apply for a fresh English grant. The Colonial Probates Act 1892 (as extended by subsequent Application Orders) allows a Hong Kong grant to be "resealed" by the Probate Registry in England and Wales - turning it into a document that English asset holders will accept. The resealed grant gives the executors named in the Hong Kong grant the authority they need to administer the UK assets directly.

This article sets out the process, documents required, the Hong Kong-UK tax interaction, and the practical issues that come up most often. We assist Hong Kong-based executors with the entire process remotely. For background on the resealing process across all Commonwealth jurisdictions, see our main page on resealing a foreign grant of probate.

Is the Hong Kong grant capable of being resealed?

Yes. Hong Kong is included in the Colonial Probates Act Application Orders, and grants of probate (or letters of administration) issued by the Probate Registry of the High Court of Hong Kong fall squarely within the resealing regime. This was true before 1997 and remained the position after the transfer of sovereignty - Hong Kong's legal system, including its probate and succession framework, has continued under the common law tradition.

A few preliminary points to confirm before proceeding:

The Hong Kong grant must have been issued (not merely applied for). The English application requires a court-sealed and certified copy of the grant.
The grant must name living executors or administrators who are willing to act. Where an executor named in the grant has since died or is unable to act, the position needs to be addressed before applying.
The estate must include UK-situated assets. Where there are no UK assets, no English grant is needed at all.

Hong Kong probate terminology

Hong Kong's probate terminology follows the common law tradition and is broadly aligned with English usage:

Grant of probate - issued where there is a valid Will and the named executor applies. Equivalent to an English grant of probate.
Letters of administration - issued where there is no Will (intestacy) or where the named executor cannot act. Equivalent to an English grant of letters of administration.
Letters of administration with the Will annexed - issued where there is a Will but no executor able or willing to act. The administrator administers the estate according to the Will. Equivalent to the same instrument under English law.

Hong Kong grants are issued by the Probate Registry of the High Court of Hong Kong and bear that court's seal.

Documents required

The following documents are needed for the application to the Probate Registry in England and Wales:

A court-sealed and certified copy of the Hong Kong grant (probate, letters of administration, or letters of administration with Will annexed, as applicable). This is obtained from the Probate Registry of the High Court of Hong Kong. A photocopy of an earlier sealed copy is not sufficient - the English Probate Registry needs a copy bearing the original court seal.
A court-sealed and certified copy of the Will and any codicil. The original Will is almost invariably retained by the issuing Hong Kong court.
The deceased's death certificate, in original or certified form. Hong Kong death certificates issued by the Immigration Department are acceptable.
The completed UK inheritance tax form appropriate to the estate. A return must be filed with HMRC before the application is lodged, even where no UK inheritance tax is payable.
A letter of authority signed by the personal representatives, authorising the English solicitor to act on their behalf.
The Probate Registry application fee (£300 where the UK estate exceeds £5,000, or no fee where the UK estate is £5,000 or less). Additional sealed copies of the resealed grant are charged at £16 per copy.

Hong Kong documents are typically issued in English (as one of Hong Kong's two official languages alongside Chinese), so no translation is generally required. Where any document has been issued in Chinese only - which is increasingly common for some administrative documents - a certified English translation will be needed before being lodged with the Probate Registry.

Hong Kong tax vs UK tax - the interaction

The Hong Kong-UK tax position is often a source of welcome simplicity in cross-jurisdictional estates. Two points worth understanding from the outset:

In Hong Kong: there is no estate duty. Hong Kong abolished estate duty in February 2006 and has not reintroduced it. Death itself does not trigger any tax in Hong Kong, though specific assets within the estate may be subject to tax in other ways (for example, Hong Kong stamp duty on the transfer of certain Hong Kong property, or income tax implications on subsequent realisation of assets). For the avoidance of doubt, there is no Hong Kong charge equivalent to UK inheritance tax.

In the United Kingdom: UK inheritance tax applies on the deceased's worldwide estate where the deceased was UK-domiciled or (since April 2025) a "long-term UK resident". For deceaseds who were neither UK-domiciled nor long-term UK resident, UK inheritance tax is confined to the UK-situated assets - typically UK real property, UK bank accounts, UK shares and UK pension interests.

The practical effect for many Hong Kong-resident executors is that UK inheritance tax is the only death-related tax in play. The absence of Hong Kong estate duty means there is no Hong Kong charge to net off, and no double-tax treaty calculation to perform on the estate tax position itself. The domicile and residence position of the deceased remains the starting point for the UK calculation, and should be established at the outset.

Whatever the tax position, a UK inheritance tax return must be filed with HMRC before the reseal application is lodged, even where no UK inheritance tax is ultimately payable.

The process step by step

The typical sequence for a straightforward Hong Kong reseal:

Initial review and instruction (week 1). We review the Hong Kong grant, the Will, the death certificate, and a schedule of UK assets to confirm the reseal route is available and identify any complications. The Hong Kong-based executors sign a letter of authority appointing us to act.
Obtaining sealed copies from Hong Kong (weeks 2-6). The Probate Registry of the High Court of Hong Kong issues sealed and certified copies of the grant and Will. Hong Kong's Registry is generally efficient and most requests are processed within two to four weeks. We coordinate directly with the Hong Kong executors or their Hong Kong solicitors.
UK inheritance tax return (weeks 4-10, in parallel with step 2). We prepare the relevant UK inheritance tax return based on the UK asset position and the deceased's domicile and residence history. Where IHT is payable, the executors arrange for payment before the return is filed.
Application to the Probate Registry (weeks 10-12). Once the sealed copies and IHT confirmation are in hand, we lodge the application for the reseal with the Probate Registry, together with the application fee.
Issue of the resealed grant (weeks 18-28). The Probate Registry currently issues most grants within 16 weeks of application, though this varies. Once issued, the resealed grant is sent to us and we provide certified copies to the UK asset holders.
Collection and distribution of UK assets (weeks 28-40). With the resealed grant, the UK asset holders release funds or transfer assets in the usual way. We arrange the UK administration and remit funds to the executors for onward distribution under the Hong Kong estate.

For a straightforward Commonwealth reseal where the Hong Kong documents are available and no UK inheritance tax is payable, the total elapsed time from instruction to distribution of UK assets is typically four to six months. Where IHT reporting is required or where documents take longer to obtain, six to twelve months is more usual.

Practical issues that come up most often

Several issues recur in Hong Kong reseal matters and are worth flagging early:

Time zones and remote instruction

Executors based in Hong Kong rarely need to travel to the UK for the reseal process. We conduct the entire instruction remotely - initial scoping by video call, document signing by post or via appropriate electronic execution, and ongoing updates by email. The seven-hour time difference (eight in UK summer time) between the UK and Hong Kong means that Hong Kong morning calls work well for UK overnight or early morning scheduling, depending on the partners' availability.

UK property in the estate

Where the UK estate includes residential property, two further matters arise. The conveyancing of the property - sale or transfer to a beneficiary - sits outside the reseal instruction itself but typically follows directly from it. UK capital gains tax may also arise if the property has appreciated between the date of death and the date of sale.

For Hong Kong-resident families holding London or wider UK residential property, additional considerations may include the Annual Tax on Enveloped Dwellings (ATED) where property is held through a corporate structure, and the implications of any UK pension or investment platform holdings.

UK pension assets

UK pensions are increasingly significant UK assets for Hong Kong-resident individuals who previously worked in the UK. The treatment depends on the type of pension and the date of death. From April 2027, most UK defined contribution pensions will be brought within the UK inheritance tax net - a material change from the current position. For deaths after that date, the UK pension position will need to be reviewed alongside the wider IHT calculation.

Cross-border family structures

Hong Kong-resident HNW families frequently have multi-jurisdictional connections - to Mainland China, the UK, Singapore, Canada, Australia, or elsewhere. Where the estate involves assets in more than one jurisdiction, careful coordination between the various national probate processes is essential, and the order in which grants and reseals are applied for can have material practical consequences. We coordinate with Hong Kong counsel and other foreign counsel as required.

BN(O) status and recent emigration

Many Hong Kong-resident individuals have moved to the UK in recent years under the British National (Overseas) visa scheme. Where the deceased had recently relocated to the UK or had begun the process of relocating, the domicile and "long-term UK resident" analysis becomes more nuanced. We will discuss the residence-and-domicile position as part of the initial scoping conversation in light of the rules as they currently stand under the April 2025 residence-based regime.

Estates with assets in multiple Commonwealth jurisdictions

It is common for Hong Kong estates to include assets in other Commonwealth jurisdictions - most often Singapore, Australia, Canada, or the UK. Where the executors hold a Hong Kong grant, it can typically be resealed in each Commonwealth jurisdiction in turn. We have published separate articles on the Australian and Canadian reseal processes for executors administering assets in those jurisdictions.

How NSS Legal can help

NSS Legal is a private client law firm specialising in cross-border estates and the administration of UK assets for executors based overseas. We are regularly instructed by Hong Kong-based executors, Hong Kong solicitors, and Hong Kong-based accountants and financial advisors with UK-asset matters. We work entirely remotely with Hong Kong-based executors and coordinate with Hong Kong counsel where required.

Our work is recognised by the Chambers UK guide, and both of our private client directors are full members of the Society of Trust and Estate Practitioners (STEP) and the Association of Lifetime Lawyers.

To discuss a Hong Kong reseal matter, please contact Oli or Shamima directly on +44 (0)20 8209 1222 or at info@nsslegal.co.uk There is no charge for an initial scoping conversation.

For more on the resealing process generally, see our main service page on resealing a foreign grant of probate. For broader guidance on UK probate and estate administration, see our probate page. For comparable guides to Australian and Canadian reseals, see our Australian reseal article and Canadian reseal article.

How to Reseal a Canadian Grant of Probate in England and Wales

Thu, 23 Apr 2026 00:00:00 +0100

A practical guide for Canadian executors (or estate trustees) and their advisors on resealing a Canadian grant of probate for use in England and Wales. We cover provincial variations, the documents required, the Canadian-specific tax interaction, and the practical issues that come up most often.

Where a person has died in Canada leaving assets in England and Wales - most commonly a UK property, UK bank accounts, a UK pension, or UK-listed shares - the Canadian grant of probate (or local equivalent) does not, by itself, give the executors authority to deal with those assets. UK asset holders will require an English grant before releasing funds or transferring title.

In most cases, the executors do not need to apply for a fresh English grant. The Colonial Probates Act 1892 (as extended by subsequent Application Orders) allows a grant issued by a Canadian court to be "resealed" by the Probate Registry in England and Wales - turning it into a document that English asset holders will accept. The resealed grant gives the executors named in the original grant the authority they need to administer the UK assets directly.

This article sets out the process, the documents required, how the position varies by Canadian province, and the practical issues that come up most often. We assist executors based in Canada with the entire process remotely. For background on the resealing process across all Commonwealth jurisdictions, see our main page on resealing a foreign grant of probate.

Which Canadian provinces are covered?

All Canadian provinces and territories are covered by the Colonial Probates Act Application Orders. A grant of probate (or its provincial equivalent) issued by the Superior Court of any of the following can be resealed in England and Wales:

Ontario
Quebec
British Columbia
Alberta
Manitoba
Saskatchewan
Nova Scotia
New Brunswick
Newfoundland and Labrador
Prince Edward Island
Yukon, Northwest Territories and Nunavut

However, the terminology and process varies materially between provinces, and for Quebec in particular there are structural differences that affect what document is actually available for resealing. We address the position province by province below.

Canadian terminology - what is the "grant" called in your province?

One of the first sources of confusion in Canadian reseal matters is the difference in terminology between provinces. The document that gets resealed in England and Wales will have different names depending on where it was issued:

Ontario: Certificate of Appointment of Estate Trustee (With or Without a Will). Formerly known as "letters probate" (with a Will) or "letters of administration" (without a Will).

Quebec: Quebec operates under the civil law rather than the common law and does not use a grant of probate in the conventional sense. Instead, probate is typically established by a notarial Will (which is self-proving and requires no court grant) or by a court-issued "probate judgment" or “judgment of probate” for non-notarial Wills. The resealing process for Quebec estates has specific requirements - see below.

British Columbia: Grant of probate (with a Will) or grant of administration (without a Will), issued by the Supreme Court of BC.

Alberta: Grant of probate or grant of administration, issued by the Court of King's Bench.

Other provinces: terminology broadly mirrors BC and Alberta, with minor variations.

Whichever document was issued, the English Probate Registry's requirements are broadly the same: a court-sealed and certified copy of the original grant, plus a certified copy of the Will.

Is the Canadian grant capable of being resealed?

In most cases, yes. A few preliminary points to confirm before proceeding:

The Canadian grant (or provincial equivalent) must have been issued, not merely applied for. The English application requires a court-sealed and certified copy of the issued document.
The grant must name living executors or estate trustees who are willing to act. Where a named executor has since died or is unable to act, the position needs to be addressed before applying.
The estate must include UK-situated assets. Where there are no UK assets, no English grant is needed at all.
For Quebec estates proceeding on the basis of a notarial Will (with no court grant having been issued in Quebec), a different route may be needed - see the separate section on Quebec below.

Documents required

The following documents are needed for the application to the Probate Registry in England and Wales:

A court-sealed and certified copy of the Canadian grant (or provincial equivalent - Certificate of Appointment of Estate Trustee in Ontario, grant of probate elsewhere). This is obtained from the Superior Court (or Court of King's Bench in Alberta, etc.) of the province in which the grant was issued. A photocopy of an earlier sealed copy is not sufficient - the English Probate Registry needs a copy bearing the original court seal.

A court-sealed and certified copy of the Will and any codicil. The original Will is almost invariably retained by the issuing Canadian court.

The deceased's death certificate, in original or certified form.

The completed UK inheritance tax form appropriate to the estate. A return must be filed before the application is lodged, even where no UK inheritance tax is payable.

A letter of authority signed by the personal representatives (or estate trustees), authorising the English solicitor to act on their behalf.

The Probate Registry application fee (£300 where the UK estate exceeds £5,000, or no fee where the UK estate is £5,000 or less). Additional sealed copies of the resealed grant are available at £16 per copy.

Canadian documents issued in English (most provinces) do not require translation. Documents issued in French (common in Quebec and to some extent in New Brunswick) will need certified translation before being lodged with the Probate Registry.

Quebec estates - the position is different

Quebec is a civil law jurisdiction (unlike the rest of Canada, which operates under the common law) and the probate process differs structurally from other Canadian provinces. Two of the main variations executors need to be aware of when resealing a Quebec estate for UK purposes:

Notarial Wills. A notarial Will executed before a Quebec notary is "authentic" from the date of execution - no probate process is required in Quebec to prove it. However, because no Canadian court grant has been issued, there is strictly speaking no Quebec grant to reseal in England and Wales. In these cases the executors generally need to apply for a fresh English grant rather than proceeding by way of a reseal.

Non-notarial Wills. For Wills executed without a notary (holograph Wills, or Wills in the English-law form), the Will must be proved (probated) in Quebec before it can be relied on. A probate judgment/judgment for probate is issued by the Quebec Superior Court, and that judgment can be resealed in England and Wales on the same basis as a grant from any other Canadian province.

In practice, the first question on a Quebec estate is whether the Will was notarial or not. For notarial Wills, we advise on the fresh-grant route. For non-notarial Wills, we advise on the resealing route.

Canadian inheritance tax vs UK inheritance tax

Canada and the United Kingdom treat death-related taxation very differently, and the interaction is one of the most common sources of delay and surprise in Canadian reseal matters.

In Canada: there is no inheritance tax as such. Instead, tax arises on death principally through:

Deemed disposition on death: the Canada Revenue Agency treats the deceased as having disposed of their capital assets at fair market value immediately before death, potentially triggering capital gains tax on accrued gains. This is paid by the estate from its resources in Canada.

Provincial probate fees / Estate Administration Tax: levied by each province on grant applications. Rates vary materially - for example, Alberta charges a flat maximum fee of $525, while Ontario charges $15 for every $1,000 of estate value over $50,000 (~1.5%).

In the United Kingdom: inheritance tax applies on the deceased's worldwide estate where the deceased was UK-domiciled or (since April 2025) a "long-term UK resident". For deceaseds who were neither UK-domiciled nor long-term UK resident, UK inheritance tax is confined to the UK-situated assets - typically UK real property, UK bank accounts, UK shares and UK pension interests.

The interaction matters because:

Canadian capital gains tax paid by the estate in Canada does not offset UK inheritance tax.
For estates where both taxes apply (typically: deceased was UK-domiciled or long-term UK resident, holding both Canadian and UK assets), relief under the UK–Canada double tax treaty may be available but requires careful analysis.
The domicile/residence position of the deceased is the critical starting point and should be established at the outset of the instruction.

Whatever the tax position, a UK inheritance tax return must be filed with HMRC before the reseal application is lodged, even where no UK inheritance tax is ultimately payable.

The process - step by step

The typical sequence for a straightforward Canadian reseal:

Initial review and instruction (week 1). We review the Canadian grant, the Will, the death certificate, and a schedule of UK assets to confirm the reseal route is available and identify any complications. The Canadian executors or estate trustees sign a letter of authority appointing us to act.
Obtaining sealed copies from Canada (weeks 2–8). The relevant provincial Superior Court issues the sealed and certified copies of the grant and Will. Timing varies materially by province - Ontario is usually responsive within two to four weeks, Alberta and BC similar, while some provinces and territories can take considerably longer, particularly for older grants. We coordinate this directly with the Canadian executors or their Canadian counsel.
UK inheritance tax return (weeks 4–12, in parallel with step 2). We prepare the relevant UK inheritance tax return based on the UK asset position and the deceased's domicile and residence history. Where IHT is payable, the executors arrange for payment before the return is filed.
Application to the Probate Registry (weeks 12–14). Once the sealed copies and IHT confirmation are in hand, we lodge the application for the reseal with the Probate Registry, together with the application fee.
Issue of the resealed grant (weeks 20–30). The Probate Registry currently issues most grants within 16 weeks of application, though this varies. Once issued, the resealed grant is sent to us and we provide certified copies to the UK asset holders.
Collection and distribution of UK assets (weeks 30–42). With the resealed grant, the UK asset holders release funds or transfer assets in the usual way. We arrange the UK administration and remit funds to the executors for onward distribution under the Canadian estate.

For a straightforward Commonwealth reseal where the Canadian documents are available and no UK inheritance tax is payable, the total elapsed time from instruction to distribution of UK assets is typically five to seven months. Where IHT reporting is required or where documents take longer to obtain, seven to twelve months is more usual.

Practical issues that come up most often

Several issues recur in Canadian reseal matters and are worth flagging early:

Time zones and remote instruction

Executors based in Canada rarely need to travel to the UK for the reseal process. We conduct the entire instruction remotely - initial scoping by video call, document signing by post or via appropriate electronic execution, and ongoing updates by email. Time zone differences between Canada and the UK (five hours between the UK and Eastern Canada, eight hours to the West Coast) make mid-afternoon UK calls a good fit for Eastern Canadian morning.

UK property in the estate

UK pension assets

UK pensions are increasingly significant UK assets for Canadian-resident individuals who previously worked in the UK. The treatment depends on the type of pension and the date of death. From April 2027, most UK defined contribution pensions will be brought within the UK inheritance tax net - a material change from the current position. For deaths after that date, the UK pension position will need to be reviewed alongside the wider IHT calculation.

UK shares held by UK registrars or platforms

Where the deceased held shares in UK-listed companies, the registrar will require sight of the resealed grant before transferring or selling. For shares held through a UK nominee or investment platform, the process is similar but typically handled more quickly.

Canadian RRSPs, RRIFs and pensions

The converse also arises. Where the estate includes Canadian registered plans (RRSPs, RRIFs) or pension assets and the UK estate is modest, the UK administration is relatively straightforward - but the Canadian tax treatment of these assets (and any interaction with UK-resident beneficiaries) will need careful handling on the Canadian side. We coordinate with the executors' Canadian counsel or accountants where helpful.

Estates with assets in multiple jurisdictions

It is not uncommon for Canadian estates to include assets in another Commonwealth jurisdiction or in the United States, alongside UK assets. Where the executors hold a Canadian grant, it can typically be resealed in each Commonwealth jurisdiction in turn. US assets will usually require a separate process.

How NSS Legal can help

NSS Legal is a private client firm specialising in cross-border estates and the administration of UK assets for executors based overseas. We are regularly instructed by Canadian executors, Canadian estate-planning counsel, and Canadian-based accountants and financial advisors with UK-asset matters. We work entirely remotely with Canadian-based executors and coordinate with Canadian counsel where required.

To discuss a Canadian reseal matter, please contact Oli or Shamima directly on +44 208 209 1222 or at info@nsslegal.co.uk. There is no charge for an initial scoping conversation.

For more on the resealing process generally, see our main service page on resealing a foreign grant of probate. For broader guidance on UK probate and estate administration, see our probate page. For a comparable guide to Australian reseals, see our Australian reseal article.

Or, for guidance on Hong Kong reseals, see our Hong Kong reseal article.

How to reseal an Australian grant of probate in England and Wales

Mon, 20 Apr 2026 00:00:00 +0100

A practical guide for Australian executors, their solicitors, and advisors of clients with UK assets. We set out the documents required, the process, realistic timescales, and the practical issues that arise most often when resealing an Australian grant.

Where a person has died in Australia leaving assets in England and Wales — most commonly a UK property, a UK bank account, a UK pension, or shares held by a UK registrar — the Australian grant of probate does not, by itself, give the executors authority to deal with those assets. UK asset holders will require an English grant before releasing funds or transferring title.

In most cases, the executors do not need to apply for a fresh English grant. The Colonial Probates Act 1892 (as extended by subsequent Application Orders) allows an Australian grant to be "resealed" by the Probate Registry in England and Wales — turning it into a document that English asset holders will accept. The resealed grant gives the executors named in the Australian grant the authority they need to administer the UK assets directly.

This article sets out the process, documents required, realistic timescales, and the practical issues that come up most often. We assist executors based in Australia with the entire process remotely. For background on the resealing process across all Commonwealth jurisdictions, see our main page on resealing a foreign grant of probate.

Is the Australian grant capable of being resealed?

In almost all cases, yes. Probate granted by any Australian state or territory Supreme Court — New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory or the Northern Territory — falls within the Colonial Probates Act and can be resealed in England and Wales.

A few preliminary points to confirm before proceeding:

The Australian grant must have been issued (not merely applied for). The English application requires a court-sealed and certified copy of the grant.
The grant must name living executors who are willing to act. Where an executor named in the grant has since died or is unable to act, the position needs to be addressed before applying.
The estate must include UK-situated assets. Where there are no UK assets, no English grant is needed at all.

Documents required

The following documents are needed for the application to the Probate Registry:

A court-sealed and certified copy of the Australian grant of probate. This is obtained from the Supreme Court Probate Registry of the Australian state or territory in which the grant was issued. In most states this is referred to as an "exemplification" or a "sealed and certified copy". The copy must bear the original court seal — a photocopy of an earlier sealed copy is not sufficient. If an e-grant is issued in Australia, the executors will need to request a sealed hard copy (and pay the relevant fee).

A court-sealed and certified copy of the Will (and any codicil). The original Will is almost invariably retained by the issuing Australian court; the application proceeds on the basis of the certified copy.

The deceased's death certificate, in original or certified form.

The completed UK inheritance tax form, appropriate to the estate. Even where no UK inheritance tax is payable, a return must still be filed before the application is lodged.

A letter of authority signed by the personal representatives, authorising the English solicitor to act on their behalf in the application.

The Probate Registry application fee (£300 where the value of the UK estate exceeds £5,000, or no fee where the UK estate is £5,000 or less).

Australian documents are issued in English, so no translations are required — a practical advantage compared with reseals from many other Commonwealth jurisdictions.

Inheritance tax — the part that catches most executors out

The interaction between Australian and UK tax is the most common source of delay and surprise in Australian reseal matters. A few principles worth understanding at the outset:

Australia has no inheritance tax, but the UK does. The deceased's domicile (and now residence, following the April 2025 changes to the UK's residence-based regime) determines the scope of UK inheritance tax exposure.
For deceased’s who were UK-domiciled or who became "long-term UK resident" under the new rules, worldwide assets are within the scope of UK inheritance tax — meaning the Australian assets are also relevant to the UK calculation.
For deceased’s who were neither UK-domiciled nor long-term UK resident, only the UK-situated assets are within scope. The Australian assets are outside the UK net.
The form to be filed depends on the value and nature of the UK assets and the deceased's domicile/residence position. In a substantial number of Australian reseal matters, an IHT400 will be required even where no UK inheritance tax is ultimately payable. This may be due to, for example, the deceased having previously lived in the UK during their life.

The IHT position should be settled before the reseal application is lodged. Where IHT is payable, the application cannot proceed until HMRC has acknowledged receipt of the return and (where relevant) payment.

The process — step by step

The typical sequence for a straightforward Australian reseal:

Initial review and instruction (week 1). We review the Australian grant, the Will, the death certificate, and a schedule of UK assets to confirm the reseal route is available and identify any complications. The Australian executors sign a letter of authority appointing us to act. Based on this, we shall provide you with a quote of the fees and disbursements.
Obtaining sealed copies from Australia (weeks 2–6). Timing varies materially by state — some are responsive within a fortnight; others can take six weeks or more, particularly where the grant was issued some years ago. We coordinate this directly with the Australian executors or their solicitors.
UK inheritance tax return (weeks 4–10, in parallel with step 2). We prepare the relevant inheritance tax return based on the UK asset position and the deceased's domicile and residence history. Where IHT is payable, the executors arrange for payment before the return is filed. If the IHT400 needs to be filed with HMRC, then we will need to be wait for a probate code to be issued before proceeding.
Application to the Probate Registry (weeks 10–12). Once the sealed copies and IHT confirmation are in hand, we lodge the application for the reseal with the Probate Registry, together with the application fee.
Issue of the resealed grant (weeks 18–28). The Probate Registry currently issues most grants within 16 weeks of application, though this varies. Once issued, the resealed grant is sent to us and we provide official copies to the UK asset holders.
Collection and distribution of UK assets (weeks 28–40). With the resealed grant, the UK asset holders release funds or transfer assets in the usual way. We arrange the UK administration and remit funds to the executors for onward distribution under the Australian estate.

For a straightforward Commonwealth reseal where the Australian documents are available, no UK inheritance tax is payable, and there are no complicating factors, the total elapsed time from instruction to distribution of UK assets is typically four to six months. Where IHT reporting is required or where documents take longer to obtain from Australia, six to twelve months is more usual.

Practical issues that come up most often

A handful of issues recur in Australian reseal matters and are worth flagging early:

Time zones and remote instruction

Executors based in Australia rarely need or want to travel to the UK for the reseal process. We conduct the entire instruction remotely — initial scoping by video call, document signing by post or via the appropriate electronic execution platform, and ongoing updates by email. Where helpful, we hold scoping calls in the Australian morning (UK overnight or early morning) to fit around executors' working days.

UK property in the estate

Where the UK estate includes residential property, two further matters arise. First, the conveyancing of the property — whether to sell or transfer to a beneficiary — sits outside the reseal instruction itself but typically follows directly from it. Second, UK capital gains tax may arise if the property has appreciated between the date of death and the date of sale.

UK pension assets

UK pensions are increasingly the largest UK asset for many Australian executors. The treatment depends on the type of pension and the date of death. From April 2027, most defined contribution pensions will be brought within the UK inheritance tax net (a material change from the current position). For deaths after that date, the pension position will need to be reviewed alongside the wider IHT calculation.

Shares held by UK registrars

Where the deceased held shares in UK-listed companies, the registrar will require sight of the resealed grant before transferring or selling. This is straightforward but adds a few weeks to the overall timeline. For shares held through a nominee or platform, the position is usually simpler — the platform deals with the transfer or sale on receipt of the resealed grant and instructions.

Estates with assets in multiple Commonwealth jurisdictions

It is not uncommon for Australian estates to include assets in another Commonwealth jurisdiction — most often New Zealand or Hong Kong — alongside the UK assets. Where the executors hold an Australian grant, that grant can usually be resealed in each of the other jurisdictions in turn. The order in which the reseals are applied for, and which solicitors take the lead in each jurisdiction, is worth thinking about at the outset.

How NSS Legal can help

NSS Legal is a private client firm specialising in cross-border estates and the administration of UK assets for executors based overseas. We are regularly instructed by Australian executors, their solicitors, and Australian-based financial advisors with UK-asset matters. We work entirely remotely with Australian-based executors and coordinate with Australian counsel where required.

To discuss an Australian reseal matter, please contact Oli Sloam or Shamima Begum at info@nsslegal.co.uk or +44 208 2091222. There is no charge for an initial scoping conversation

For more on the resealing process generally, see our main service page on resealing a foreign grant of probate. For broader guidance on UK probate and estate administration, see our probate page.

For a comparable guide to Canadian reseals, see our Canadian reseal article. Or, see our Hong Kong reseal article if that is more appropriate for your situation.

If something happened to you tomorrow, who would raise your children?

Tue, 14 Apr 2026 00:00:00 +0100

Resealing a Foreign Grant: A Practical Guide for Commonwealth Estates with UK Assets

Fri, 02 Jan 2026 00:00:00 +0000

When someone dies owning assets in the UK but probate has already been obtained overseas, it may be possible to reseal the foreign grant of probate in the UK, rather than applying for a full UK grant from scratch.

Resealing can be a more efficient route, but it is a technical process that requires careful handling — particularly for high-value estates, business owners and families with international assets.

At NSS Legal Ltd, we regularly advise executors and beneficiaries on resealing a foreign grant of probate in the UK, especially where estates include UK property, investments or business interests.

This guide explains when resealing is available, how the process works, and when specialist advice is essential.

What does it mean to reseal a grant of probate in the UK?

Resealing allows a grant of probate or letters of administration (sometimes referred to as a Letters of Executorship or Representation Grants/Estate Grants) issued in certain overseas jurisdictions to be recognised and given legal effect in England and Wales.

Once resealed, the foreign grant has the same standing as a UK grant, enabling executors to:

Deal with UK property
Access UK bank accounts and investment portfolios
Transfer or sell UK assets
Complete UK estate administration

Which foreign grants can be resealed in the UK?

Resealing is generally available for grants issued in Commonwealth jurisdictions covered by the UK resealing regime.

Common examples include grants from:

Australia
Canada (certain provinces)
New Zealand
South Africa
Hong Kong
Singapore
India (in some circumstances)

Not all overseas grants qualify, and even where the country is eligible, the form of the grant and supporting documentation must meet UK requirements.

When is resealing appropriate?

Resealing is commonly used where:

The deceased was domiciled overseas
Probate has already been obtained abroad
The estate includes UK property or investments
Executors wish to avoid duplicating probate processes

For estates with significant UK assets, resealing can be quicker and more cost-effective — but only if the estate is suitable for resealing.

How the resealing process works

While each estate is different, the process typically involves:

1. Reviewing the foreign grant

Confirming that it qualifies for resealing under UK law.

2. Preparing the UK resealing application

Including court documentation and certified supporting evidence.

3. UK Inheritance Tax reporting

Even where no IHT is payable, UK reporting obligations often apply.

4. Submission to the Probate Registry

Once approved, the foreign grant is formally resealed for use in England and Wales.

Delays often arise where documentation is incomplete or UK tax issues are not properly addressed

Inheritance Tax considerations

Resealing a foreign grant does not remove UK tax obligations.

Depending on the deceased’s domicile and the nature of the assets, UK Inheritance Tax may apply to:

UK real estate
UK investments
UK business interests

High-value estates frequently require coordination between UK and overseas advisers to ensure correct reporting and to avoid double taxation.

Common pitfalls when resealing a grant

We regularly see delays caused by:

Assuming all foreign grants can be resealed
Incomplete or incorrectly certified documents
Failure to address UK IHT reporting
Domicile or residence issues
Business, trust or pension assets within the estate

Early advice can prevent costly delays.

High-value and business-owned estates

Where an estate includes:

UK property portfolios
Shares in UK companies
Business interests
Trust or pension assets

The resealing process often intersects with wider estate planning and succession issues. These cases benefit from a co-ordinated, senior-led approach.

How NSS Legal can help

At NSS Legal Ltd, we advise executors, beneficiaries and professional advisers on resealing foreign grants of probate in the UK, particularly for estates involving:

Commonwealth jurisdictions
High-value UK assets
Business or investment structures
Cross-border tax considerations

We provide:

Clear advice on whether resealing is available
End-to-end management of the resealing process
Coordination with overseas lawyers and accountants
Specialist UK probate expertise

We are a Chambers-ranked private client firm, based at Marlborough House, Regents Park Road, Finchley, advising clients across the UK and internationally.

Speak to our private client team

If you are dealing with an overseas estate that includes UK assets and need advice on resealing a grant of probate in the UK, please contact NSS Legal Ltd.

We would be pleased to assist.

Lasting Powers of Attorney for High-Net-Worth Individuals: Protecting Assets, Businesses and International Holdings

Tue, 09 Dec 2025 00:00:00 +0000

For high-net-worth individuals, business owners and families with international assets, a Lasting Power of Attorney (LPA) is not simply a precaution — it is a critical part of long-term wealth protection and continuity planning. When wealth is complex, diversified or held across borders, the absence of a well-drafted LPA can expose families, businesses and advisers to significant risk.

At NSS Legal Ltd, we regularly prepare LPAs for clients whose financial affairs involve companies, investment portfolios, property across jurisdictions and long-term succession objectives. In these cases, a standard LPA is rarely sufficient. The document must reflect the client’s values, intentions and expectations — and give attorneys clear authority to act confidently on their behalf.

Why LPAs Matter So Much for High-Net-Worth Clients

1. Protecting Complex Financial Structures

Affluent clients tend to hold wealth in a variety of vehicles, including:

Limited companies and family-owned businesses
Investment companies and FICs
International holdings
Multi-property portfolios

An LPA ensures that, if capacity is lost, attorneys can:

Manage and instruct professional advisers
Approve transactions
Oversee business operations
Maintain investment strategies
Protect liquidity and tax efficiency

Without an LPA, families may face long delays, court applications and uncertainty — all of which can damage the value and stability of a complex estate.

2. Business Continuity During Periods of Incapacity

Founders and business owners face unique vulnerabilities if they lose capacity, even temporarily. Decisions may be required on:

Banking and cashflow
Regulatory obligations
Contract approvals
Staff and payroll issues
Shareholder decisions

A carefully drafted LPA can ensure attorneys have:

The necessary authority to keep the business operating
Clarity on when and how they can step in
Guidance on the donor’s commercial priorities

This protects both the company and the family.

3. International Wealth Requires Tailored Planning

Clients with overseas homes, bank accounts or investments must consider:

Cross-border tax exposure
Conflicts of law
Recognition of LPAs abroad
Local requirements for asset management

While an English LPA may not be recognised overseas, it remains essential for UK-based wealth and often forms part of a wider international planning strategy.

4. Private Healthcare Preferences Must Be Explicit

One of the most overlooked aspects of LPA planning for high-net-worth individuals is healthcare choice — particularly should the donor wish to rely on private medical treatment, rather than the NHS, wherever possible.

It is vital that attorneys understand:

The donor wishes to use private healthcare as the first choice.
Funds should be used to secure private consultants, hospitals, treatments or care facilities.
The donor explicitly authorises attorneys to allocate money for private care, even when NHS options exist.
Quality, speed and comfort of treatment should be prioritised in line with the donor’s lifestyle and expectations.

These preferences can be included in:

The Health & Welfare LPA (as guidance or binding instructions).
A Letter of Wishes to accompany the LPA, giving clear detail on standards of care, preferred hospitals, medical insurers, and how funds should be deployed.

Clarity prevents uncertainty or hesitation at difficult moments. It also avoids disputes between family members and ensures the donor’s wealth is used as they intended.

5. Attorneys Must Understand How the Donor Wants Money to Be Spent

For affluent clients, attorneys need guidance on:

When to use wealth for care
Whether to prioritise private medical treatment
Standards of residential care expected
Funding levels for in-home care or professional assistance
Maintaining lifestyle commitments

High-net-worth clients often prefer:

Private carers rather than local authority arrangements, at home rather than in a home
Premium residential care if needed
Quick access to private specialists
Continuity of professional advisers

A bespoke LPA can explicitly direct attorneys to spend money on these priorities — providing reassurance and preventing future conflict.

6. What Makes an LPA “High-Net-Worth Ready”?

An LPA for a wealthy client should incorporate:

Clear investment and business guidance
Express authority to employ professionals (lawyers, accountants, investment managers)
Directions regarding private healthcare and care funding
Instructions about international assets
Authority to restructure portfolios where appropriate
Clarity on gifting, tax planning and estate protection

A poorly drafted LPA can leave attorneys hesitant or restricted, causing avoidable financial harm.

Why HNW Clients Choose NSS Legal

At NSS Legal Ltd, we prepare LPAs that:

Reflect the complexity of high-value estates
Incorporate business, tax and international considerations
Provide attorneys with clarity and confidence
Protect family wealth while respecting personal wishes
Include tailored guidance on private healthcare and lifestyle expectations

Our private client team is Chambers-ranked and experienced in advising founders, entrepreneurs, family offices and clients with multi-jurisdictional wealth.

Speak to NSS Legal

If you would like to review your LPAs or prepare new documents that properly reflect your wealth, responsibilities and wishes, please contact the private client team at NSS Legal Ltd, Marlborough House, Regents Park Road, Finchley.

We would be pleased to assist.

Why Every High-Value Estate Needs a Professionally Drafted Will - The Risks of 'Homemade' Wills for Wealthy Families

Mon, 01 Dec 2025 00:00:00 +0000

For families with significant wealth, property portfolios, business interests or international assets, a Will is not simply a formality. It is the legal foundation that protects the estate and ensures wealth passes to the next generation as intended.

At NSS Legal Ltd, we regularly advise high-net-worth individuals, entrepreneurs and international families on the importance of having a properly drafted Will. For wealthy families, “homemade” or template-based Wills often create risks far greater than any short-term cost saving.

This article sets out the key reasons why specialist drafting is essential for high-value estates.

Complex Asset Structures Require Tailored Drafting

High-net-worth clients often hold assets such as:

Multiple UK and overseas properties
Family business interests
Shares in trading or investment companies
Family investment companies (FICs)
Substantial pension assets including property held in a SSAS/SIPP
Trust interests
Jointly owned or inherited wealth

A generic or template Will cannot accommodate the legal and tax implications of these structures. Bespoke drafting ensures each asset is dealt with correctly and in line with the client’s intentions.

Tax Consequences Can Be Significant

Incorrectly drafted Wills can lead to avoidable tax charges, including:

Loss of the residence nil rate band if applicable
Failure to secure Business Relief
Unnecessary Capital Gains Tax exposure
Double taxation on foreign assets
Poor structuring of lifetime gifts and trusts

For high-value estates, the financial impact of such errors can be substantial.

Ambiguity Creates Disputes

Common problems arising from homemade Wills include:

Conflicting or unclear clauses
Missing definitions
Invalid gifts
Incorrect witnessing
Outdated or contradictory provisions

High-value estates are more vulnerable to disputes, particularly where blended families or complex wealth arrangements exist.

Professional drafting reduces the risk of litigation and disagreement between beneficiaries.

Business Ownership Requires Proper Succession Planning

For business owners, a Will must coordinate with:

Shareholders’ agreements
Partnership agreements
Articles of association
Cross-options or buy-back arrangements

Homemade Wills rarely address these issues in sufficient detail. Proper drafting ensures clarity for directors, shareholders and family members.

International Assets Add Additional Complexity

High-value families frequently hold assets in the USA, Israel, UAE, Europe or other jurisdictions. Specialist advice is essential to manage:

Forced heirship rules
Local probate processes
Double taxation
Domicile issues
Whether separate foreign Wills are advisable

Without guidance, international assets can become tied up in delays or conflicting legal regimes.

Choosing the Right Executors Is Critical

Executors in a high-value estate must be capable of handling:
Complex valuations
Cross-border issues
HMRC reporting
Business and trust interests
Collaboration with accountants and advisers

Homemade Wills can often appoint executors who are not equipped for the role. Professional advice ensures the right individuals are appointed. This could include professional executors.

Wealth Needs Regular Review

The financial position of wealthy families often changes due to:

Business exits or liquidity events
Property acquisitions
International relocation
Legislative changes
New beneficiaries or family circumstances

A Will must be reviewed periodically to remain effective.

The Cost of Errors Often Exceeds the Cost of Proper Advice

Issues arising from homemade Wills can lead to:

HMRC enquiries
Litigation
Asset delays
Loss of tax reliefs
Misdistribution of wealth

For high-value estates, specialist drafting is essential to protect the family and the estate.

How NSS Legal Can Help

At NSS Legal Ltd, we prepare bespoke Wills for high-net-worth individuals, entrepreneurs and clients with complex or international assets. Our service is:

Senior-led and discreet
Focused on clarity and efficiency
Integrated with business, trust and cross-border considerations
Tailored to the unique needs of wealthy families

We are a Chambers-ranked private client firm based at Marlborough House, Regents Park Road, Finchley, advising clients throughout the UK and internationally.

Speak to Our Private Client Team

If you would like to review your existing Will or discuss preparing a new one, please contact us.

Our private client team and Will planning solicitors at NSS Legal Ltd would be pleased to assist.

Inheritance Tax Thresholds Frozen Until 2031: What High-Value Estates Need to Know

Tue, 25 Nov 2025 00:00:00 +0000

HMRC has confirmed that the current Inheritance Tax (IHT) thresholds will remain frozen for an additional year, up to and including the 2030/31 tax year. This extension means more high-value estates are likely to fall within the scope of IHT over the coming years.

What’s Staying Frozen?

The following thresholds remain unchanged until April 2031:

Nil-Rate Band (NRB): £325,000
Residence Nil-Rate Band (RNRB): £175,000
RNRB taper threshold: £2 million
£1 million combined allowance for 100% APR and BPR

Any increases linked to inflation will now only take effect from 6 April 2031, unless policy changes again.

What This Means for High-Value Estates

HMRC estimates that a further 2,100 estates will become taxable in 2030/31 as a direct result of this freeze.

For wealthy families, business owners and clients with international assets, this makes forward planning even more important.

Key implications include:

More estates exceeding the NRB and RNRB
Greater exposure to the RNRB taper for estates over £2 million
Increased IHT on agricultural, business and investment assets
A stronger need for lifetime planning, trust reviews and professionally drafted Wills

How NSS Legal Can Help

At NSS Legal Ltd, we work with high-net-worth individuals, entrepreneurs and international families to structure their estates tax-efficiently and ensure their Wills, trusts and lifetime planning reflect the current IHT landscape.

Our private client team offers clear advice on:

Inheritance Tax mitigation
Use of reliefs (APR, BPR, RNRB)
Structuring high-value estates
Cross-border assets and domicile issues
Complex or business-owned wealth

As a Chambers-ranked private client firm based in Finchley, we provide specialist, senior-led guidance tailored to complex estates.

Speak to Our Private Client Team

If you would like to review your IHT exposure or update your estate planning, please contact NSS Legal Ltd.

Our estate planning solicitors would be pleased to assist.

Probate for High-Net-Worth Individuals & Business Owners

Mon, 24 Nov 2025 00:00:00 +0000

Administering an estate involving significant wealth, business interests or international assets requires careful handling and specialist legal expertise. At NSS Legal Ltd, our private client team is well-known for dealing with complex and high-value estates with discretion, clarity and technical excellence.

From our offices at Marlborough House, Regents Park Road, Finchley, and as a Chambers-ranked firm, we regularly assist high-net-worth families, entrepreneurs and international clients who value a measured, senior-led approach to probate.

Our focus is simple: to provide a reliable and comprehensive administration service, delivered with accuracy, continuity and complete professionalism.

Why High-Value Estates Require Specialist Advice

Seeking expert guidance here is advisable for several key reasons.

Complex and Varied Asset Structures

Many estates we administer include:

Substantial property portfolios
Family investment companies
SSAS/SIPP-held property, sometimes jointly owned with the estate outright
Private equity and investment holdings
High-value personal and business assets

These require coordinated valuation, tax analysis and careful reporting.

Business Interests and Succession Issues

For business owners, probate often involves:

Shareholdings
Director loan accounts
Ongoing trading considerations
Advising fellow directors and shareholders

We work closely with accountants and valuers to ensure continuity and compliance throughout.

International Considerations

A significant proportion of our clients hold assets outside the UK, including in the US, Israel, UAE, Europe and elsewhere. We advise on:

Resealing foreign grants
Domicile and tax implications
Double-tax risks
Forced heirship conflicts
Liaising with overseas advisers

Our team coordinates the entire process so executors receive a consistent and joined-up service. See our guide to find out more about resealing a foreign grant of probate and the expertise we can provide.

Tax Exposure in High-Value Estates

We provide guidance on:

Inheritance Tax
Business Relief
Trust taxation

Our approach ensures compliance while identifying opportunities for efficient outcomes where available and we liaise with accountants and tax advisers where appropriate.

The NSS Legal Approach to Probate

As experienced probate solicitors, we are able to support you through every stage.

Senior Involvement From Start to Finish

All probate matters are led by experienced private client lawyers. Our clients value direct access, continuity and clear advice.

Comprehensive Estate Administration

We manage the estate from initial enquiries to final distribution, ensuring each stage is handled thoroughly and without unnecessary delay.

Discreet, Calm and Practical

Our clients often appoint us during difficult periods. We take a steady and practical approach, providing reassurance whilst ensuring the estate is administered properly.

Specialist Collaboration Where Needed

We work with trusted professionals — including valuers, accountants and SSAS/SIPP specialists such as Nigel Sloam & Co — to ensure every aspect of the estate is dealt with accurately.

Supporting Business Owners and Their Families

Where a business forms part of the estate, we advise executors on:

Succession planning and share transfers
Management of the company during administration
Reliefs and tax considerations
Coordinating with directors and advisers

Our aim is to ensure the business remains stable during the probate process and that beneficiaries receive their entitlement in an efficient and compliant way.

Why Clients Choose NSS Legal

High-net-worth families and business owners instruct us because we offer:

A steady, senior-led approach
Experience with complex and international estates
Clear, direct and pragmatic guidance
High standards of client care and confidentiality
A reputation for technical expertise, recognised by Chambers

Contact Our Private Client Probate Solicitors

If you require assistance with a high-value or international estate, please contact our private client team at NSS Legal Ltd, Marlborough House, Regents Park Road, Finchley.

We support high-net-worth individuals, business owners and families with complex estates, and would be pleased to help.

Resealing a Foreign Grant of Probate

Tue, 04 Nov 2025 00:00:00 +0000

If someone has died domiciled or permanently living outside of England and Wales, you may find that the grant (or the local equivalent) does not automatically enable the personal representatives to deal with the assets located in the England and Wales.

Depending on where the deceased died, it may be possible to reseal a foreign grant of probate which provides the legal authority to collect in the English and Welsh assets and thereby avoid having to apply for probate again in England and Wales.

The ability to reseal is not extended to all foreign grants. The Colonial Probates Act Application Order lists the countries and territories whose grant can be resealed, including Canada, Australia, New Zealand, Virgin Islands, Gibraltar and Hong Kong.

What Does it Mean to Reseal a Grant of Probate?

A grant of representation is the official authorisation for the personal representatives to manage the deceased’s estate and administer it according to their Will (or intestacy or succession laws). In the UK, asset holders (i.e. banks or pension/insurance companies) will usually only accept a UK grant.

Resealing a foreign grant of probate provides the personal representatives with the legal authority to manage the deceased’s UK assets.

Grants of probate are ‘sealed’ in the county in which they’re issued. ‘Resealing’ is enacted by the Probate Registry in England and Wales, effectively allows a foreign grant of probate to be used in the UK and will be accepted by UK asset holders.

It is a simplified process that means personal representatives don’t have to submit a full inheritance tax account in regard to the probate application, and can instead use the existing probate document issued in the foreign jurisdiction.

How to Reseal a Grant of Probate

If a reseal is possible, then the person(s) named on the grant by the issuing authority, up to a maximum of four, will be able to apply for the reseal. The English and Welsh seal will be applied on either the original grant (or equivalent), a court sealed and certified copy, or an exemplification of the probate document. A court sealed and certified copy of the Will (and codicil) will also need to be produced, if there was one. Invariably, the issuing jurisdiction will retain the original Will. The relevant tax form will also need to be filed, together with a letter of authority signed by the personal representatives and the court fee.

There is no need to reseal the Scottish confirmation or the Northern Irish grant, where the deceased domiciled into those jurisdictions; these will have a similar standing to the English and Welsh grant.

If the deceased died in a non-Commonwealth country, including Isle of Man and the Channel Islands, then a full application for a grant will need to be submitted.

As specialists in resealing a foreign grant of probate, NSS Legal Limited can assist with:

Reviewing the foreign document(s) and confirming whether a reseal is possible;
Liaising with foreign jurisdictions;
Preparing the application to reseal the foreign documents, inheritance tax form and liaising with HMRC, where relevant;
Submitting the application to the probate registry on behalf of the personal representatives;
Checking the re-sealed document;
Collecting in the English and Welsh assets; and
Distributing the assets to the personal representatives

Who Can Apply to Reseal a Foreign Grant of Probate in the UK?

Whether or not you can apply for reseal will depend on which country the deceased died in and where the original grant was issued.

The Colonial Probates Act

If the original grant was issued in a commonwealth or previously recognised commonwealth country, the Colonial Probates Act means it is likely possible for the Probate Registry in England and Wales to reseal it.

The Colonial Probates Act covers 70 jurisdictions, including:

Australia
New Zealand
Hong Kong
Singapore
Kenya
South Africa
Canada

Countries Not Included in The Colonial Probates Act

If not recognised by the Colonial Probates Act, it is unlikely the foreign grant of probate can be resealed. Where this is the case, a full application for a grant of probate may be required to administer UK assets.

Who Can Apply to Reseal Foreign Grants of Probate?

The person named in the original grant will most likely create this new application. This may be:

The executor in the Will.
A legal professional who has been officially assigned with the administration of the estate in the country where the deceased permanently resided.
A beneficiary who will be inheriting from the estate in the country where the deceased permanently resided.

Which Documents Do You Need to Apply For A Foreign Grant of Probate?

There are several probate documents required as part of the application. A formal translation is also necessary if the original documents are not written in English.

The foreign grant
The death certificate
The Will
The letter of authority
Inheritance tax returns
Probate Registry fee

Any copies of the sent documents will either need to be originals or need to be properly sealed or certified.

Inheritance tax returns must be filed with HMRC, even if there is no tax to pay, before the application can be made. The appropriate form will depend on the value and/or types of assets involved.

How Much is the Probate Registry Fee?

If the value of the estate exceeds £5,000, there is a probate application fee of £300. For estates valued at £5,000 or less, there is no application fee. Court sealed copies of the probate document cost £1.50 per document.

How Long Does it Take to Reseal a Foreign Grant of Probate?

Grants of probate are usually issued within 16 weeks of making your application. However, the process may take longer if additional information or documents are needed.

How Can NSS Legal Help?

Our specialist resealing a foregin grant probate solicitors can guide you through the resealing process and help prepare and submit the application.

If you require our expertise, please contact us to find out more about our services.

We've moved!

Tue, 21 Oct 2025 00:00:00 +0100

Chamber Global Practice Guide? Private Wealth 2025

Thu, 24 Jul 2025 00:00:00 +0100

We are thrilled to announce that NSS Legal has achieved its first ever ranking in the Chambers and Partners High Net Worth Guide - London for 2025.

Congratulations to Shamima Begum for being ranked “Up and Coming” - a well deserved accolade which reflects her hard work and expertise. This recognition highlights the strength of our Private Client Team and the high calibre of work and instructions we are privileged to handle.

We're grateful to our clients and referees who took time to share their feedback and for their kind words and positive reviews.

Why You Should Plan Ahead with a Health and Welfare Lasting Power of Attorney

Mon, 30 Jun 2025 00:00:00 +0100

Planning for the future is one of the most important things you can do to protect your health and wellbeing, especially as you get older. A Health and Welfare Lasting Power of Attorney (LPA) allows you to choose someone you trust to make decisions about your care, treatment and daily life if you lose the ability to decide for yourself.

Without a legally binding LPA in place, your loved ones may be unable to act on your behalf, even in urgent situations. That’s why planning ahead with a Health and Welfare LPA is essential for anyone who wants peace of mind and control over their future.

What is a Health and Welfare Lasting Power of Attorney?

A Health and Welfare LPA is a legal document that lets you appoint one or more people (known as attorneys) to make decisions about your personal health and care if you lose mental capacity in the future.

It covers decisions such as:

Where you live and who cares for you
What you eat and wear
Your daily routine
The medical treatment you receive
Whether to continue or refuse life-sustaining treatment
Your end-of-life care and organ donation wishes

By creating an LPA, you make sure that your preferences are known and legally recognised, and that someone you trust is empowered to speak up on your behalf.

1. Think about your future wishes and write them down

Take some quiet time to reflect on what you would want if you could no longer make decisions about your own care. Would you prefer to stay at home rather than move into a care facility? Do you have strong feelings about life-sustaining treatment or pain relief? Are there cultural, religious or personal preferences that should be respected?

Writing down your thoughts can help you understand what matters most and start to form a clear plan.

2. Have the conversation

Once you’ve thought about your wishes, it’s time to talk to those closest to you. Choose someone you trust such as a family member or close friend and let them know how you feel about your future care.

These conversations can be difficult, but they’re important. Talking now means your loved ones won’t be left guessing later. It also gives them the chance to ask questions and feel confident in their ability to support you.

Remember: it’s never too early to start the conversation, but it can be too late.

3. Speak to a specialist and get your wishes finalised in a legal document

While it's possible to create an LPA yourself using online forms, mistakes or vague wording can cause serious problems down the line. A DIY LPA may not fully reflect your wishes, or it could be rejected altogether.

That’s why it’s best to speak to a specialist legal professional who understands the complexities of Health and Welfare LPAs. They’ll make sure your document is legally valid, accurately reflects your preferences, and considers all the right questions, even the ones you haven’t thought of.

Feeling ready to take the next step?

A Health and Welfare LPA helps give you the confidence that your wishes will be followed and that someone you trust will be there to make the right decisions on your behalf.

Don’t delay, get in touch with our Accredited Lifetime Lawyer/s Oli Sloam and Shamima Begum on the NSS Legal Ltd team today to get your LPA in place.

Law Commission Proposes Overhaul of Wills Law

Fri, 16 May 2025 00:00:00 +0100

The Law Commission has published its final report, Modernising Wills Law, recommending significant updates to the Wills Act 1837 to align with modern societal and technological developments.

Key Proposals in the Modernising Wills Law Report:

Electronic Wills: Introduction of legally valid electronic wills, subject to stringent security measures, to reflect the digital age.
Marriage and Wills: Elimination of the rule where marriage automatically revokes an existing will, aiming to protect individuals from potential exploitation, such as predatory marriages.
Undue Influence: Enhanced safeguards against undue influence, allowing courts to consider broader circumstances when determining the validity of a will.
Testamentary Capacity: Clarification that the Mental Capacity Act 2005 provides the standard for assessing an individual's capacity to make a will, replacing outdated common law tests.
Informal Wills: Provision for courts to accept informal wills that clearly express the testator's intentions, even if they don't meet all formal requirements.

With reform on the horizon, it may be an ideal time to review your will. Speak to NSS Legal to ensure your arrangements remain valid and reflect your intentions.

Update Your Will Week

Tue, 04 Mar 2025 00:00:00 +0000

NSS Legal Limited named as Firm to Watch by Legal 500

Wed, 04 Oct 2023 00:00:00 +0100

NSS Legal Limited is delighted to announce that the firm has been named as ‘one to watch’ in the Legal 500 rankings for the first time.

Listed under the Personal Tax, Trusts and Probate section of London, Legal 500 describe NSS Legal as an ‘excellent team that swiftly understands the client's commercial and trust requirements.’

The full Legal 500 list can be found here.

Managing Director Oliver Sloam and Director Shamima Begum would like to thank all of those who have supported NSS Legal Limited throughout its journey and look forward to continuing into the future.

About NSS Legal Limited

Founded in 2015, NSS Legal Limited act as trusted advisors to families, trusts and individuals and provide the full breadth of Private Client and Commercial Property work, with Legal Services including:

· Will drafting and Trusts and advice to Trustees

· Probate & Estate Administration

· Court of Protection Applications

· Sales and Purchases of Commercial Property

For any enquiries, please make an enquiry with the NSS Legal team.

Online Lasting Powers of Attorney Update

Fri, 29 Sep 2023 00:00:00 +0100

Overview:

- Reform to streamline lasting powers of attorney receives Royal Assent

- Will help safeguard against fraud

- Digitalisation will speed up processing and help to remove human error

On Tuesday 19^th September, the Powers of Attorney Act received royal assent, which aims to ensure the process of making and registering a lasting powers of attorney becomes safer and easier.

In addition, chartered legal executives will now be able to provide certified copies of powers of attorney – a change which will come into effect in two months’ time.

One of the main efforts of the update is to digitalise the LPA process, moving away from the paper based system. With the number of LPA applications increasing, a paper system was becoming unsustainable.

A move to a digital system will also improve safeguarding around LPA applications, making them more efficient and reducing the risk of human error during the process. Digitalisation means errors will be identified earlier and allowed to be fixed online, instead of the current process where documents are posted back and forth when amends are required.

The updated Act includes plans for identification checks, which would require official documents such as a passport, driver’s license or Government Gateway account to protect vulnerable people from fraud or abuse.

Outstanding Questions

There are still some questions surrounding the efficiency and usability of the updated IT system for those who aren’t digitally literate, which will hopefully be ironed out during a user testing process.

There is also currently a need for more information surrounding the ID verification system for making a power of attorney and whether those who struggle with the digital process will be able to access this without significant help.

You can view the full update and monitor the status of the changes on the Government website here.

How Can NSS Legal Limited Help?

We understand the LPA process can be complicated, so our lasting powers of attorney solicitors can help to guide you through the complicated LPA process by:

- Preparing and registering LPAs for both Property and Financial Affairs and Health and Welfare

- Acting as Certificate Provider

- Advising on the inclusion of preferences and instructions suited to your needs

- Referring you to suitable advisers in other territories where Lasting Powers of Attorney do not apply.

Should you need assistance during the LPA process, please make an enquiry with the NSS Legal team.

Inheritance Tax Explained: What to Know When Planning a Will

Wed, 26 Oct 2022 00:00:00 +0100

Planning a will can seem like a morbid exercise for many, but it is an essential part of removing easily-avoidable asset risks. When preparing your will, there are several things to consider to ensure you leave the estate to your loved ones whilst also maximising any tax reliefs and exemptions.

Inheritance tax (IHT) is one area where those drafting their will can be caught out, particularly when careful inheritance tax planning is not undertaken.

For High Net Worth individuals, there are several inheritance tax planning options to explore. For those with larger estates especially, an expert’s guidance can be invaluable in helping uncover the best strategies for your circumstance and ensuring your assets are protected for the future generation.

How Much is Inheritance Tax?

A good place to start is going back to basics and understanding what inheritance tax entails and what it will mean for you.

The current IHT rate is 40% in excess of the nil rate band threshold which is charged on the part of your estate that does not benefit from any exemptions or reliefs. Assets that are not in the UK may still be subject to IHT.

Funds left by your estate may be used to pay IHT upon your death, organised by the executor of your will.

What is the Inheritance Tax Threshold?

Each person has a nil rate band of £325,000 over which inheritance tax is charged at 40% (unless there are exemptions or reliefs available). For those married or in a civil partnership, where the nil rate band is not used by the first spouse/partner’s estate, the unused portion can be transferred to the survivor’s estate, which could potentially mean a combined nil rate band of up to £650,000. It is important that you consider tax planning for your estate as an ongoing exercise.

A main residence nil-rate band was introduced in 2017, which is available in addition to the nil rate band of £325,000. The current residence nil rate band is £175,000. The residence nil rate band aims to help reduce the inheritance tax where the family home passes to direct descendants - this includes to adopted, foster or step children. The amount available reduces down once the estate reaches £2 million. For estates that exceed £2.35 million, the residence nil-rate band will be reduced to zero and will therefore not apply.

Inheritance Tax Exemptions

There may be other exemptions and reliefs available to an estate, which include:

Exempt gifts and charities
Spouse exemption
Business property relief
Agricultural property relief
Heritage relief

Inheritance Tax Planning

Simply doing nothing and leaving your assets to beneficiaries in your will without the necessary planning can make your estate liable to taxation at a high rate. Preemptively reducing the amount of inheritance tax your estate will have to pay and taking any suitable steps while you're alive gives you more control over how much your beneficiaries will receive.

We can take you through the options available to your circumstances and how best to plan to reduce your estate inheritance tax liability.

Reviewing Your Will

Taking advice and carefully structuring your Will can help reduce that amount of tax payable.

You may wish, for example, to pass an asset that receives full or part tax relief to someone who is not tax-exempt. This could, by way of an example, include passing certain types of business assets to your children rather than your spouse/civil partner. We can provide advice on how best to structure your Will, taking into account who your beneficiaries are to be and maximise the available exemptions and reliefs.

You may also wish to consider how to leave assets to children or others but not in a way where they receive assets immediately.

Setting Up Trusts

Your particular asset and family structure may benefit from using trusts as part of your tax planning.

Transferring assets into a trust means that once any conditions are satisfied, they are no longer within your control nor within your estate for inheritance tax purposes. The trust itself will have its own reporting obligations and tax liabilities, so it is important to ensure you obtain advice before you set up trusts, whether in your lifetime or in your Will.

As well as being a tax planning vehicle, trusts can serve as structures providing security for your estate and beneficiaries.

Making Gifts

Generally, you can make a gift of any size to any beneficiary and provided you survive seven years from the date of the gift - this will no longer form part of your estate.

There are several options that allow you to make gifts throughout your life without being included in the sum of your estate upon your death. Gift exemptions include:

Gifts between spouses and civil partners
Annual gifts of up to £3,000 given as a personal allowance
Annual gifts of up £250 per person
Wedding gifts of £1,000, £2,500 or £5,000 (subject to your relation to the beneficiary)
Gifts from surplus income
Gifts given to charities or national organisations (whether given during your lifetime or left in your will)

There are specific rules for each type of gift which will need to be considered to ensure that the exemption or relief can be claimed.

Where you make a gift not falling within the above list, it may be subject to inheritance tax. After three years from the date the gift was made, the tax due on the gift tapers with each whole year you survive. Gifts not exempt and made in the three years before your death may be subject to the inheritance tax at 40%.

We would also advise you to carefully consider the lifetime gifts you make to ensure you retain with enough funds for yourself/dependants, and what, if any, arrangements need to be made should the gifts not be fully relieved of inheritance tax by the date of your death. You may wish to take advice before making the gift to confirm that the manner in which the gift is made satisfies HMRC conditions.

Making gifts into a flexible or discretionary trust can fall under chargeable lifetime transfers, and there are specific tax rules surrounding these types of gifts, so it is imperative you obtain specialist tax advice before making these types of gifts.

Using Life Insurance

Whilst taking out a life insurance policy is not so much about reducing the eventual inheritance tax bill, it can provide an alternative way to pay the amount due. This ensures other parts of your estate do not have to be sold to cover the tax due.

It would be advisable to confirm whether any life insurance policies you have can be placed in a trust. The benefit of this means that (a) it is not included in your estate for inheritance tax purposes and (b) often the insurance providers will pay this on sight of a death certificate so there is no need to wait until probate has been issued in order to make the claim for the funds.

Needless to say, navigating inheritance tax can be a complex area as there are often several factors at play, including considering how to leave your estate to your beneficiaries, your potential tax liability and how this will be settled. NSS Legal can help you get it right. For more advice on will preparation or our other areas of expertise such as resealing a foreign grant of probate, please make an enquiry with the NSS Legal team.

Commercial Lease Renewals Post-Covid

Fri, 08 Oct 2021 00:00:00 +0100

2021 has naturally seen a sharp rise in tenants’ requests for pandemic drafting or ‘Covid clauses’ in new leases, and we are seeing increasing numbers of lease renewals where tenants have an expectation of such drafting being included, even though it has not been included in the existing lease.

This article examines the impact of the pandemic on the commercial terms acceptable to landlords and tenants in lease renewals pursuant to the Landlord and Tenant Act 1954 (the “1954 Act”) and how the courts might determine disputes in such cases.

The Landlord and Tenant Act 1954

The legal framework for determining the terms of a lease (other than the rent and the duration of the lease) in a 1954 Act lease renewal, is set out in the 1954 Act, which provides that:

“the court shall have regard to the terms of the current tenancy and to all relevant circumstances”₍₁₎

The court therefore has a wide discretion to impose variations to existing terms and it is not bound to follow the form of the existing lease.

Interpretation of the 1954 Act by the Courts

The leading case in this area established general principles for courts to adopt in exercising their discretion. In O’May v City of London Real Property Co Ltd ₍₂₎ (“O’May”) the House of Lords provided the following guidance:

The onus is on the party proposing a change to the terms of the existing lease to justify the reason, which must be based on essential fairness between the parties.
There is no obligation to modernise the lease and it will not be sufficient to show that the proposed term is in line with current market practice.
The court will compare the advantage afforded to the proposing party and consider whether the detriment suffered by the other party may be compensated in monetary terms.
The general purpose of the 1954 Act should be taken into account, which is to protect the comparatively weak negotiating position of the tenant.
The court must be satisfied that the proposed departure from the existing terms is fair and reasonable, taking the above considerations into account.

The case concerned a 1954 Act renewal in which the landlord was proposing new service charge provisions to pass the burden of repair and maintenance of the building to the tenant. The change to the commercial position of the parties was not sufficiently justified and the court refused to sanction the departure from the existing lease terms.

Accordingly, a party wishing to introduce a variation to the existing lease terms in a 1954 Act renewal must demonstrate good reasons and persuade the court to approve the variation, based on justice and fairness. It is not sufficient to simply update the lease to keep it in accordance with modern practice.

Commercial Lease Renewal Case Law – WH Smith Case

In WH Smith Retail Holdings Limited v Commerz Real Investmentgesellshaft mbH ₍₃₎ (“WH Smith”) the landlord and tenant had agreed that covid-related drafting would be included in the new lease on renewal.

The proposed clause would permit a suspension of rent payable by the tenant during a period of lockdown imposed by the government in response to a pandemic or other health emergency. The principle of a 50% reduction of rent during the restricted period had also been agreed.

The dispute to be decided by the court related to the trigger for the rent suspension period to commence. The landlord’s proposal was for the rent cesser to commence on the date the tenant was compulsorily required to cease trading, whilst the tenant advocated for the rent suspension to commence if a non-essential retailer was prevented from opening for trade due to government-imposed restrictions.

The tenant in this case was obligated to open for trade during the period in which all but non-essential retailers were required to close during the covid-19 related lockdown, due to its provision of essential postage and banking services at the post office within the store.

Trade had fallen by 90% during this period as the footfall in the Westfield Centre in which it was located was drastically reduced. The tenant therefore enjoyed no commercial advantage from remaining open during lockdown restrictions and the court found in favour of the tenant.

Significantly, the judge also observed that covid clauses are now part of a tenant’s requirements and the evidence suggested that the market had already priced in such clauses into lease valuations. There would be no uplift in rent to compensate the landlord for the increase in commercial risk.

In the WH Smith case the principle of the inclusion of a pandemic-related rent suspension had been agreed and it was not necessary to satisfy the O’May principles with regards to the departure from existing terms.

However, it is worth noting that the judge found that such clauses would be justified on essential fairness principles in any event. It might have been necessary to make a downward adjustment in rent, should the clause not have been included, since a lease without covid clauses would be worth less in the market.

Poundland Case

Another 1954 Act lease renewal case in which pandemic drafting was a central point is Poundland Limited v Toplain Limited (4).

In this instance, the principle of a new covid-related rent suspension had not been agreed and the tenant was proposing to modernise the lease by including a pandemic clause to effectively reduce the rent and service charge by 50% in the event of government-imposed restrictions preventing trade .

The court decided in this case that there was no market precedent to impose such a clause, which would fundamentally alter the parties’ commercial relationship. The judge noted that the purpose of the 1954 Act is not to give the courts discretion to rewrite the commercial terms and renegotiate allocation of risks.

Applying the O’May principles and considering “all relevant circumstances” in accordance with the provisions of the 1954 Act, it was appropriate to consider the potential effects of repeated lockdowns. However, it is not the role of the court to:

“insulate the tenant against the commercial trading risks they may face in a way that either prejudice the landlord or interfere with their long term interests” (judgement of District Judge Jenkins)

The tenant’s argument that the proposed drafting would modernise the lease was rejected as it would impose a new risk on the landlord and it would not be fair and reasonable to reduce the tenant’s liability, which would amount to a redesigning of the previously negotiated risks.

In his judgement, DJ Jenkins noted that the tenant is likely to have the benefit of government schemes in any future lockdowns, such as the furlough scheme and the rates holiday. The landlord would have no such control and the reasons given by the tenant were not sufficient to justify the proposed sharing of risks.

In addition, further proposed drafting put forward by the tenant included a clause preventing the landlord from forfeiting the lease during a lockdown period. This was also rejected by DJ Jenkins, stating in his judgement that this would “significantly alter the existing commercial balance between the parties”.

The Impact of Covid on Commercial Leases and Renewals

The above cases may be distinguished as the principle of pandemic rent suspension had been agreed in WH Smith, whilst no such principle had been agreed in the Poundland case.

WH Smith may also have been decided differently, had the location been different. The tenant relied on the footfall of the shopping centre in which it was located to bring in customers and the judge commented that the benefit of its location had been severely affected in a “largely echoing Westfield centre”.

The cases referred to above were decided in the County Court and are not binding on future decisions. However, they serve to provide a useful insight into the attitude of the courts in relation to fairness and the allocation of commercial risks in the post-covid market.

Implications for Commercial Lease Negotiation and Drafting

The market has seen a shift towards pandemic drafting being included in leases and 1954 Act renewals, including where no such terms had been contemplated in earlier leases.

However, landlords should be wary of accepting blanket covid clauses without proper consideration of the implications. Tenants may be able to take advantage of government schemes and may be assisted by legislation permitting rates holidays or other financial incentives.

The implications of open market rent reviews should also be considered. Tenants may expect a reduction in rent in return for accepting a lease without covid protections for tenants.

It is clear from the recent 1954 Act cases that the courts are prepared to exercise their discretion to authorise departures from existing lease terms in the interests of justice and fairness. However, the court will consider the implications of all of the relevant circumstances and a departure from existing terms may not be justified if it results in an unreasonable change to the commercial position of the parties.

It would be desirable to agree commercial terms as early as possible and the onus is on the tenant to justify the introduction of new lease terms that alter the commercial position of the parties.

Article written by Jenny Doran

If you have any queries relating to commercial leases, renewals or Heads of Terms, please contact us at info@nsslegal.co.uk and we would be happy to assist.

References:

^{Section 35(1) of the Landlord and Tenant Act 1954}
^{[1983] 2 A.C. 726}
^{(Unreported) 25 March 2021 (County Court) (HH Judge Richard Parkes QC)}
^{(Unreported) 7 April 2021 (County Court) (District Judge Jenkins)}

Head to Head

Tue, 19 Jan 2021 00:00:00 +0000

THIS ARTICLE WAS FIRST PUBLISHED IN THE LAW SOCIETY’S PROPERTY MAGAZINE, DECEMBER 2020 EDITION

Nikki Bensoor looks at how heads of terms are changing in the pandemic, and how the Government's Code for leasing business premises could support commercial lease negotiations.

As the coronavirus (COVID-19) cloud continues to hang over us, many commercial landlords and tenants have been obliged to renegotiate existing or agree new leases to include more ‘give and take’. The government’s Code for leasing business premises – which is compulsory for RICS members – aims to promote more balanced heads of terms (HOTs), including the following.

1. The extent of the property

This section of the HOTs should also include rights the tenant enjoys over the landlord’s estate to use the property. If the property forms part of a building, a plan should be attached.

2. Lease term and rights to end the lease early, acquire a longer lease or freehold interest

Occupiers are now more reluctant to be ‘locked in’ to leases and require more flexibility. For instance, some serviced office providers are renting space by the day or even the hour.

Parties can exclude the right to remain in the property at the end of a fixed term under the Landlord and Tenant Act 1954 (LTA 1954), although the implications should be carefully considered before doing so.

3. Rent and payment terms, rent-free periods and rent reviews

Leases with rents based on turnover are becoming increasingly popular with retail tenants in particular. The courts do not yet have jurisdiction to impose a turnover rent on lease renewals under the LTA 1954, although this may be a way for some landlords to retain their tenants in the future.

Traditionally, rent concessions were given to encourage “good” tenants to occupy or remain – especially those likely to fit out the property to a landlord’s longer-term advantage. Concessions may be extended to include rent suspensions or reductions if trading proves impossible in lockdowns – known as “COVID clauses”. Traditional upward-only rent reviews may have to be replaced by more flexible arrangements reflecting current trading conditions.

4. Rent deposit or guarantor requirements

Landlords are seeking additional security by requiring rent deposits (usually two to six months’ annual rent) and/or a guarantor. This requirement is likely to depend on the covenant strength of the tenant or any parent company, and should be agreed when the HOTs are negotiated.

5. Any service charge, insurance contributions or other outgoings

Tenant payments will need to be included in the HOTs. These contributions require transparency and certainty, and tenants will want to see how their charges are calculated. For certainty, tenants may also consider pushing for service charge caps.

6. Whether tenants can assign leases, grant subleases of whole or part, or share possession

Present conditions may necessitate tenants vacating part of the property or sharing possession. As a means of retaining some control, the landlord could require that the tenant requests specific consent on each occasion.

7. Repairing obligations and works

If the property is in poor condition, it may be sensible for both parties to agree a schedule of condition, including plans and photographs as evidence.

HOTs should specify works the landlord and tenant agree to undertake to the property at certain times. If works are to take place before term commencement, they may need to be documented in a separate agreement for lease.

8. Permitted use

From 1 September 2020, a new use class, class E, replaced traditional use classes A1 (shops), A2 (financial and professional services), A3 (restaurants and cafes), and B1 (business), as well as incorporating nurseries, health centres and gyms. A wider permitted use could increase or decrease the landlord’s control over the use of their property and impact present and future value. So it is crucial the planning use is clearly identified at HOTs stage and reflected in leases.

9. Rights to carry out alterations and reinstatement requirements

Planning permissions and/or building regulations approvals are required for certain internal and/or external alterations. Often, the landlord must give formal consent, but may allow certain works without permission, such as demountable partitioning. Landlords may require reinstatement at the end of the term, which should be clarified in the HOTs.

While the UK property market is going through such dramatic change, landlords and tenants need to work flexibly and transparently at the earliest stage and agree comprehensive HOTs, supported and complemented by the code, to avoid problems later. The code should help both parties understand their respective requirements and reduce the risk of future conflicts. Jaw-jaw must always be better than war-war, particularly at a time when access to the courts is so limited, and even remote in many cases.

Look Before You Lease

Wed, 16 Sep 2020 00:00:00 +0100

This article was first published in the Law Society’s Property Magazine, SEPTEMBER 2020 EDITION.

Lockdown has presented unprecedented challenges for both landlords and tenants. Nikki Bensoor looks at the impact on commercial lease arrangements, now and in the future.

Nikki Bensoor is a Senior Associate in the Commercial Property department at NSS Legal Limited.

Following the shutdown of non-essential businesses in England just before the March quarter date, many tenants sought rent deferrals and/or reductions. This forced landlords to ask themselves how they can preserve their investments and relationships with tenants at the same time as managing obligations to their lenders.

Since May, businesses have started to reopen, but many premises are still empty, with rent unpaid. One major London commercial landlord has said that just 28% of rents were collected up to the June quarter date from its commercial tenants. Could amendments to traditional commercial leases help reduce the shortfall?

COVID-19 is likely to have a longer-term effect on lease terms. Many landlords and tenants are demonstrating the “collaboration and transparency” highlighted in the government’s recent Code of Practice for commercial property relationships during the COVID-19 pandemic (the code). However, the code is voluntary, so it is not clear whether all parties will adopt it when negotiating new leases, or if the market and the parties’ relative bargaining powers will prevail.

Trends in the Leasehold Market

Rent concessions

Many tenants now want to include, if possible, a rent suspension clause if they cannot use their premises. This suspension could specifically relate to COVID-19, or if premises are forced to close due to government-imposed restrictions. This is known as a “coronavirus clause”. Interestingly the code does not propose full rent suspension, but encourages discussions around what tenants can afford to pay and the support landlords can provide. Tenants seeking to rely on the code may need to present financial and other information to support their requests. If landlords reject tenants’ proposals, they must justify this. Landlords, or tenants for that matter, keen to maintain the status quo in the longer term may be more prepared to negotiate.

Force Majeure

Traditionally, leases do not include force majeure clauses – those that allow either landlord or tenant to end the lease where certain specified events occur. Such clauses may become more popular following the pandemic, as tenants seek relief from paying rent and other liabilities if they cannot occupy their premises.

Shorter Lease Terms and Break Rights

It seems tenants are seeking flexibility – release from lease arrangements – often more than security, although their stance will depend on the nature of their businesses. Some tenants are therefore requesting shorter lease terms and additional breaks. The recent period of imposed closures and the risk of future lockdowns mean tenants are more likely to push back on break conditions requiring “vacant possession”, since they may not be able to access premises to remove and reinstate in the usual way.

Turnover Rents

Typically, leases with rents based on turnover generated at the premises have been used in the retail sector, and are becoming more common in other sectors, including serviced offices. A turnover lease could lend itself to a more collaborative approach, where both parties’ interests are more closely aligned. However, landlords may want to ensure that turnover leases include a guaranteed rent, with a top-up based on turnover.

Keep Open Clauses

Linked to turnover rents, more leases could include ‘keep open’ clauses obliging tenants to maximise business. A widely used exception for tenants allows them to remain closed if events happen “outside of their reasonable control”. Closures caused by COVID-19 could fall within this category. For clarity, tenants may seek specific exclusions in the event of future government-imposed closures.

Services

Landlords with maintenance obligations should assess whether additional services will be required as a result of COVID-19, such as more frequent cleaning of toilets, eating areas, desks, door handles and handrails. Landlords are likely to hold firm on the ability to recover these costs as part of the service charge, and assert that they form part of costs associated with “good estate management” or “required by statute”. However, tenants may argue that such additional costs should be excluded, as there could be an unreasonable spike in outgoings.

Conclusion

The dynamics of the relationship between landlord and tenant has never been more important than in these unprecedented times. The landlord’s lender may also have a part to play. We wait to see whether parties will embrace the code and accept the need to share costs and business risks. In my view, the code will play a more important role in negotiations, so the conventional lease will need to evolve, and possibly include some of the provisions referred to above. How landlords and tenants react in the post lock-down environment will ultimately be determined by how business practice, the market and the wider economy develops.

Witnessing a Will During Coronavirus: Witnessing by Video to be legalised

Mon, 27 Jul 2020 00:00:00 +0100

The coronavirus pandemic highlighted a problem with the signing process for a Will, which has remained unchanged for over 180 years. Current legislation requires both the person making a Will (called the Testator) and their two witnesses to be in each other’s physical presence when all the parties sign the Will for it to be validly executed.

The need for social distancing and self-isolation during the pandemic, for some people for long periods of time, has led to the Government addressing how a Testator can arrange for a witnessing of a Will while socially distancing.

Signing a Will Using a Live Video Link

The Government is introducing temporary legislation which will enable Testators to sign a Will via video-witnessing. These measures will come into effect in September and will be backdated to 31 January 2020 and will remain in place for two years – until 31 January 2022 – or, “for as long as it is necessary”.

The advice is that people, where possible, should continue to sign their Wills in the traditional way, provided it is safe to do so, including using “distanced witnessing”. For ways this can be done whilst socially distancing, click here.

Where this is not possible, the temporary legislation now allows video link to witness a Will signing, provided guidelines set out by the Government are followed carefully. If not carefully adhered to, there is a risk that the Will has not been validly executed and if the Testator dies, the Will will not be effective.

NSS Legal are on hand to guide you through the Will signing process and discuss the options available in your circumstances, including how to use a video link to witness a Will. Please contact us on 020 8209 1222 or info@nsslegal.co.uk for further assistance.

New Appointment: Nikki Bensoor

Mon, 06 Jul 2020 00:00:00 +0100

NSS Legal Ltd is delighted to announce the appointment of Nikki Bensoor, who joins from Howard Kennedy LLP to establish the Commercial Property department.

Nikki has 10 years’ experience advising landlords, tenants, investors, trustees, pension scheme trustees and individuals on all types of Commercial Property matters.

We are very pleased to welcome Nikki to the firm and to expand our offering into Commercial Property, which complements our existing practice and further services our clients’ needs.

How Has COVID-19 Affected the Registration for A Lasting Power of Attorney?

Thu, 30 Apr 2020 00:00:00 +0100

Although many aspects of daily life have come to a standstill, the question of who should have the right to speak on your behalf should you lose capacity remains a key concern, particularly during COVID-19.

Having a Lasting Power of Attorney in place may be extremely helpful for the elderly or vulnerable in present circumstances. Their attorneys would have the authority to use their bank accounts, to purchase goods on their behalf, such as food, clothes or other necessities.

Making a Lasting Power of Attorney (LPA) can seem daunting. However, to make this process a little bit easier, we have constructed a guide on making and registering a Lasting Power of Attorney during the coronavirus pandemic.

Government Advice

The government’s advice is to delay, where possible, making and registering an LPA until the restrictions around social distancing and self-isolation have been relaxed although they will continue to provide the registration service for those most in need at this time. Naturally, not all scenarios allow for the delaying of the application, and you should follow steps to ensure you adhere to the restrictions when making an LPA.

How Do I Make an LPA During the COVID-19 Pandemic?

First and foremost, the restrictions around social distancing and self-isolation should be followed throughout all steps of the process. Elderly and other vulnerable people are those most likely to need an LPA, and they are also an at-risk group; therefore, you should continually ensure the safety of all parties.

Signing an LPA During COVID-19

The LPA will still need to be physically signed by all parties as digital signatures are not yet accepted. There are a couple of ways to achieve this whilst maintaining social distancing:

You could post the LPA document or preferably, the relevant page, to the person who needs to sign. A carer or someone who would otherwise be in regular contact with them, such as a gardener, can help them sign it and act as their witness.
You can also ask a neighbour, to act as a witness. The person could come to the boundaries of your house, or stay near the fence, ensuring two meters at all times, and you should both wash your hands before and after handling the documentation. Standing outside, you could place the documents on the doorstep after you have signed it and then step back while they sign.
A witness could also see the signature through a closed window, ensuring they wash their hands both before and after if they sign the documents.
You could also conduct the signing in a neutral environment, such as in a car park while staying in separate cars and placing the documents on the car bonnet for each person to sign. Again, wash your hands before and after handling the document.

There are also some restrictions on what is accepted on the LPA documentation. For example, you cannot:

Use digital signatures in the place of ’wet’ signatures.
Send a photocopy of the original LPA document for someone to sign. The original document must bear all required signatures. You can send just the relevant original page for signing.
Receive scanned or photocopied pages from people to form one final document. An LPA that includes non-original pages cannot be registered.

Witnessing the Donor and Attorneys’ Signatures

One of the more challenging scenarios with creating an LPA during the coronavirus is witnessing the necessary signatures. It is essential that someone watches the donor sign the document and that the witness then also signs the document. Additionally, the signature of each attorney and replacement attorney needs to be witnessed.

Securing Witnesses

The witness should:

Be over the age of 18.
Have mental capacity.
Not be an attorney or replacement attorney on the LPA.

Rules for Witnessing Signatures

To ensure all witness signatures are valid, these steps should be followed:

The witness must be shown the form with the blank signature and date box before it is signed.
The witness should have a clear view of the person who is signing.
The witness should also be shown the signature and date box immediately after it has been signed.
The witness must sign straight after the donor/attorney/replacement attorney.
All signatures should be seen in person; witnessing cannot be done over a digital connection, such as Skype or FaceTime.

These rules also apply if the donor has difficulty signing documents, and therefore, requires someone to sign on behalf of them. In that situation, the person signing on behalf of the donor must do so in the presence of the donor and two other people, who should act as witnesses for this. These two additional witnesses should also sign the LPA. Again, all parties must ensure they do this following the government advice on social distancing.

Signing in the Correct Order

The LPA documentation must be signed in the correct order to ensure it is valid. More information on this process can be found on the government website here.

Conversation Between Donor and Certificate Provider

Under normal circumstances, this conversation would happen face-to-face. However, steps can be taken to ensure this still occurs while observing government guidelines. Using video call software such as Skype or FaceTime is permitted for this conversation; alternatively, a phone call can be used.

It is vital that this call be private, where possible, and that the certificate provider ensures the donor is not being pressured into making the LPA. Where appropriate, NSS Legal can act as the Certificate Provider. However, if this is not possible, we can guide you on how this part of the LPA needs to be completed.

Final Considerations

When submitting the documents, consider who the correspondent should be. This will be the person who receives the registered LPA. The original or a certified copy will need to be seen by banks, building societies and care homes whenever a decision is made on the donor’s behalf. We recommend sending certified copies, where necessary, and ensuring that the original is kept safe.

Finally, during this time, Royal Mail will be experiencing a large volume of letters and parcels. As a result, the delivery time may be longer than expected. As with most places of work, the Office of the Public Guardian will be working with a reduced number of staff, meaning that the times taken to process and register LPAs will significantly increase on their usual timeframe of three months. You should bear this in mind when submitting the application.

For more information on how to manage yours or your family member’s personal affairs during the coronavirus, read our article on signing a Will during self-isolation. You can also get in touch with us directly, as our solicitors provide advice on any power of attorney issues you may have through these uncertain times.

Advice on Signing a Will & Witnesses During Self-Isolation

Tue, 31 Mar 2020 00:00:00 +0100

For a Will to be legally valid, it must be signed by the person making the Will in front of two witnesses who then countersign.

However, with the current COVID-19 pandemic, arranging to sign a Will may prove difficult due to social distancing and self-isolation.

As solicitors specialising in Wills and trusts law, NSS Legal can advise on how to navigate this problem. We explain what requirements are needed for a Will to be validly signed and how we can help.

The Requirements for Witnessing a Will

In order for the Will to be valid, the person who is making the Will must:

• generally be at least 18 years old (this rule is relaxed where the will-maker is in the army).

• have the capacity to make the Will.

• create the Will voluntarily. This means that they have not been pressured into creating the Will for the benefit of others.

To learn more about the importance of having a valid Will, please take a look at our article.

Two Individuals Must Witness the Will Signing

The person who is making the new Will must sign it in the presence of two other people, who act as the witnesses to the will-maker’s signature on the Will.

The Two Witnesses Must also Sign the Will

Once the creator of the Will has signed their name, the Will must then be signed by the two individuals who witnessed the signing.

The person signing, whether the Will-maker or one of the witnesses, must do so in the presence of the others. The witnesses should also complete their details which includes printing their name, address and occupation.

Once everyone has signed, the Will should be dated.

Who can Witness a Will?

A witness cannot be:

• The spouse or civil partner of the Will-maker

• A beneficiary of the Will

• The spouse or civil partner of a beneficiary

An executor can be a witness as long as they are not a beneficiary.

What If a Beneficiary Witnessed the Will?

If a beneficiary or their spouse or civil partner witnessed the Will, they would forfeit their entitlement under the Will.

Who is Recommended to Witness a Will?

It is recommended that you have two independent witnesses to avoid any doubt being cast over whether the Will was validly executed.

This could be:

• A friend

• A next-door neighbour

• A colleague from work

• A doctor

• A solicitor

Where there are concerns about the capacity of the person making the Will, a medical practitioner should act as one of the witnesses, where possible.

The Difficulty of Witnessing a Will Due to the Covid-19 Pandemic

Currently, the COVID-19 pandemic has resulted in the government putting the UK into lockdown. This means that social distancing rules are in place to minimise the interaction between people outside of those you live with to reduce the likelihood of the virus spreading.

How Can NSS Legal Help?

As a result of the measures in place, there is the challenge of trying to ensure that witnesses remain at the safe distance of two metres or more while keeping to the requirements to ensure that a Will is validly executed.

It becomes even more difficult when the Will is made by someone who falls in the vulnerable category and are more at risk when it comes to being exposed to the virus.

Options to Consider

The following suggestions should be taken with the necessary precautions, particularly where someone is already in a higher risk group.

One possibility could be to ask your next-door neighbours to act as witnesses from the safety of their own garden. As long as you can both see the party signing the Will, this would count as a valid Will signing.

Another option could be to remain at your doorstep while the witnesses stay on the pavement, at least two metres from you. Once you have signed your Will, you can place the Will two metres away from you. Once you are at a safe distance, invite the witnesses to sign where the Will has been left separately. You may need time to place the Will safely and travel to and from your door, so you do not interact.

Essential Safety Tip

Make sure to thoroughly wash your hands before and after touching the Will, and wear suitable protective clothing.

NSS Legal can assist with reviewing your current Wills to see if they require updating or where you need assistance with drafting new Wills and then executing these during the coronavirus outbreak.

Please contact our team of Will and probate solicitors in London on 020 8209 1222, and we can assist you through this procedure. Alternatively, you can email us at info@nsslegal.co.uk

Resealing a Foreign Grant of Probate From Canada

Mon, 09 Mar 2020 00:00:00 +0000

Canada is one of the countries recognised under the Colonial Probates Act, meaning where a Canadian dies with a Canadian Will, leaving substantial assets in England and Wales, a full grant of probate application to deal with assets in the UK is not necessary. Instead, the grant of probate issued in Canada is eligible for ‘resealing’ in England and Wales.

As solicitors specialising in this area, NSS Legal can advise on the procedures involved to reseal a Canadian grant of probate.

Why Would You Need to Reseal a Grant of Probate?

A foreign grant of probate can be resealed if a deceased person has passed away outside the UK, but the owned assets in England and Wales and the jurisdiction which has granted probate falls under the Colonial Probates Act 1892.

Rather than making a new application to the UK Probate Registry in England and Wales for a grant of probate, the grant of probate can be ‘resealed’. If this is possible, resealing a foreign of grant of probate is a much more efficient and quicker process in comparison to making a new application.

Who Can Apply to Reseal a Grant of Probate?

Whether or not a grant of probate is applicable for resealing in England & Wales will depend on the jurisdiction it originated from.

Not all foreign grants of probate can be resealed in the UK. Those which can are the estates of people who died in a Commonwealth country and the Probate documents are recognised under the Colonial Probates Act 1892.

How does this work?

The Probate Registry of England and Wales can reseal foreign grants of probate and equivalent probate documents where they have been issued in a current or former Commonwealth country.

If the country is listed in the Colonial Probates Act 1892, the grant of probate can be resealed by the English Probate Registry.

Some of the countries recognised under the Colonial Probates Act include:

• Australia

• New Zealand

• Hong Kong

• Kenya

• Parts of Canada

If a country does not appear on this list, a repeat full application for a grant of probate will be required. Part of this process includes submitting the applicable inheritance tax form in full to HMRC.

As Canada is identified under the Colonial Probates Act 1892, the certificate of Appointment of Estate Trustee issued by a Canadian court is eligible for resealing in the UK.

How Do You Reseal a Grant of Probate From Canada?

The list of documents needed to reseal a Canadian grant of probate in England and Wales may include the following:

A copy of the death certificate

A certified copy will be required.

A sealed copy of probate document and the Will from the Canadian court

These will need to be sealed and certified by the local court where the original probate document was issued. The original Will is usually retained by the first court.

Detailed information of the assets

As well as a note of what assets are owned in England and Wales, other documents, such as a letter of authority and HMRC inheritance tax return will also need to be prepared and submitted as part of the application.

How can NSS Legal Help?

The initial process to reseal a grant may seem straight forward. However, complications can arise during the process, for example, if the inheritance tax form submitted is not the right one or it is incorrectly completed or if the assets in England and Wales are taxable.

NSS Legal Ltd can guide you through the resealing process, as well as providing advice on how to mitigate inheritance tax on the assets owned in England and Wales, by utilising any exemptions and reliefs which may be available. We can also assist in dealing with the onward administration and distribution of the UK estate once the probate document has been resealed.

As solicitors specialising in probate law and the administration of estates, we can guide you further on which process would be the most appropriate to administer UK assets. Please contact our team of estate and probate attorneys in North London on 020 8209 1222 for further assistance. Alternatively, you can email us at info@nsslegal.co.uk

What is the Difference Between an Attorney and a Deputy?

Mon, 02 Mar 2020 00:00:00 +0000

Either a Lasting Power of Attorney (LPA) or a Court of Protection Order is implemented to ensure that a person who has lost mental capacity has a responsible representative to act on their behalf. This representative, whether an attorney under an LPA or a deputy under a Court of Protection Order, must make decisions for them with their best interests in mind.

An LPA can only be implemented when the person still has mental capacity. In the unfortunate situation that a person has lost mental capacity, then a deputy can instead be appointed.

As power of attorney lawyers, NSS Legal can offer advice on the options available to you or your loved ones. Our article explains the roles of both an attorney and a deputy and how a deputyship can be applied for when it is too late to apply for an LPA.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney is a legal document that allows you, the donor whilst you are well, to appoint people to make decisions on your behalf, who will be known as your attorneys.

The attorneys will make decisions on behalf of the donor in regards to their health, personal financial affairs or business financial affairs.

For an LPA to be legally accepted, it must comply with the following:

• the donor and attorneys must be 18 or over;

• the donor has ‘full mental capacity’ at the time of the creation;

• all relevant parties to the LPA have signed it in the prescribed form, otherwise the Office of the Public Guardian will reject it at the point of registration.

If the donor has started to deteriorate in their mental capacity, it may no longer be appropriate to apply for a Lasting Power of Attorney.

NSS Legal can guide you through the options are available. If an LPA is no longer suitable, then the most suitable representatives will instead need to apply for a Court of Protection Order which will enable them to act on behalf of the person who has lost capacity.

For more information, please read our article on what is Lasting Power of Attorney? which explains the advantages of getting your affairs in order whilst you are well and having an LPA drawn up.

What is a Court of Protection Order?

This Order is a legal document issued by the Court of Protection and is implemented when a person has lost their mental capacity and can no longer make important decisions regarding their health or financial affairs.

What is a Deputy?

Unlike the LPA, where you as the donor choose who will act as your attorney, under a Court of Protection Order, it is the Court who ultimately decides who will be appointed as your deputy to look after you. The appointed deputy can take on the responsibility of making decisions on your behalf when you are no longer able to do this yourself.

Similar to the LPAs, there are two categories of deputyship orders:

• Property and financial affairs; and

• Personal welfare.

Property and Financial Affairs Deputy

This type of deputy will be in charge of managing your bank accounts, making investment decisions, paying bills on behalf of you as well making decisions when it comes to your property.

Personal Welfare Deputy

For this role, the deputy is responsible for decisions relating to your medical treatment and the conditions of care. The court only appoints a welfare deputy in two main circumstances:

• if the decisions being made are not necessarily considered in the best interests of the unwell person, e.g. due to family disagreements; or

• if decisions are needed over a period of time, such as living arrangements.

Who Can Be a Deputy?

A deputy must be over the age of 18 and can be appointed for someone who is 16 years or older and lacks mental capacity.

A deputy tends to be a family relative or a close friend. However, anyone can apply to the Court of Protection and in some cases, someone from the social services may apply to be appointed as deputy or even a legal professional.

Applying to the Court of Protection

An application must be submitted to the Court of Protection requesting an Order be made to appoint the applicant as the deputy.

As well as completing all the necessary forms, an appropriate practitioner, such as a doctor, will be required to prepare a medical report confirming the person has lost capacity and this must also be sent to the Court of Protection as part of the application.

NSS Legal can advise you through this process and advise you on the duties you will have as a deputy when the application has been finalised.

How Long Does It Take to Apply for Deputy?

The process is much longer than that of an LPA application. It will depend on several factors including:

• whether Court permission is required;

• who is applying and whether there are other interested parties who need to be notified of the application;

• how much information the Court will require before reaching a decision; or

• if anyone contests the application.

It can take around 6-10 months for an Order to be issued.

How Can NSS Legal Help?

NSS Legal can advise you on the suitability of Lasting Powers of Attorney and guide you through the process of setting these up or applying for a Court of Protection Order for a loved one who has already lost capacity.

If you already have established LPA and are wondering 'I have Power of Attorney, what now?', we'd suggest taking a read through our guide to help you navigate the next steps.

If you require NSS Legal to prepare and register Lasting Powers of Attorney for business owners or for your personal affairs, please get in contact with our team on 020 8209 1222, and we can assist you through this. Alternatively, you can email us at info@nsslegal.co.uk

How can Divorce Affect Your Will and What Should You Be Aware Of?

Mon, 24 Feb 2020 00:00:00 +0000

Reviewing your Will should always be considered after a significant life change such as a divorce.

As solicitors specialising in Wills and trust law, our article will provide you with valuable information about how your Will may need to be updated if it still includes an ex-spouse and why you should ensure it is updated not only after a divorce but during the divorce process itself.

Does Divorce Make a Will Invalid?

In short, the Will created before the divorce remains broadly in tact apart from where any references are made to your ex-spouse.

The ex-spouse will no longer benefit under any provisions you have made in your Will. Instead, they are legally treated as if they have passed away at the time of the divorce once the Decree Absolute has been officially issued.

Why Should You Re-write Your Will After a Divorce?

If your ex-spouse is considered as deceased in the eyes of the law and you have not updated your Will, it could affect how your estate is dealt with on your death.

What Happens If My Ex-Spouse is Named as an Executor?

Your ex-spouse is no longer able to act as your executor and trustee. If they are the only executor named in the Will, someone else will be appointed by the probate court.

The Non-Contentious Probate Rules

The Non-Contentious Probate Rules will govern who is entitled to administer your estate where there is no validly appointed executor in your Will.

What Happens If My Ex-Spouse is Named as a Beneficiary?

Where you have made gifts to your ex-spouse as a named beneficiary, that gift will fail and instead will be given to the next entitled beneficiary named in your Will.

If the Estate Becomes 'Intestate'

If, however, your Will only names your ex-spouse as sole beneficiary and no other provisions are made, the estate will be ‘intestate’ meaning that the Rules of Intestacy will determine how your estate is divided on your death. This may not necessarily be the way in which you wish your estate to pass and may also not be tax efficient.

Therefore, it is essential to revise your Will to ensure that your estate is given to the chosen beneficiaries, such as a new partner and your children.

What are the Rules of Intestacy and Why Could It Affect Your Will After a Divorce?

The Rules of Intestacy come into effect when:

• A valid Will is not implemented or is invalid; or

• When a beneficiary named in the Will passes away or is deemed to have died before you, and the Will does not provide further instructions on how to distribute the estate.

Check out our article for more information on when is a Will not valid?

The Disadvantages of the The Rules of Intestacy

The Rules of Intestacy follow a strict order of who is legally allowed to inherit an estate in the event of a death without a valid Will.

This could mean certain loved ones are not entitled to benefit from your estate. For example, unmarried partners and step-children will not be legally entitled to anything left by the deceased under the Rules of Intestacy.

Please read our article for more information on how the Rules of Intestacy affect an estate after death.

What Happens to My Will If I Re-Marry?

Upon remarriage, the original Will, which may have included your ex-spouse, will be revoked in its entirety at the date of the new marriage.

A Will which is made ‘in contemplation of marriage’ will ensure that the Will is not revoked on marriage. NSS Legal can assist with ensuring your Will is drafted properly to reflect your circumstances.

How Can I Change My Will After a Divorce?

It is equally as important to review your Will and the assets you own early on in the divorce process and not just at the end.

Even if you are leading separate lives, until the Decree Absolute is issued by the Court, you will still be legally married. This means that your ex-spouse can still inherit, whether it is by virtue of the fact they are named in your Will as a beneficiary or under the Rules of Intestacy where they will rank highly as a beneficiary of the bulk, if not all, of your estate.

Reviewing Jointly Owned Assets

As well as advising you on the terms of your Will and assisting with drafting a new Will, NSS Legal can also assist in reviewing how you own the joint assets with your ex-spouse.

If you jointly own assets, you can hold these as either joint tenants or tenants in common. More often than not, the assets between spouses are owned as joint tenants, which means on death it will automatically pass to the survivor. It will not pass under the terms of your Will or under the Rules of Intestacy.

If you do not wish for your ex-spouse to inherit jointly owned assets

There have been unfortunate cases where one spouse has died during the divorce process before updating their Will or before the Decree Absolute was issued.This has resulted in their estranged spouse receiving a huge part of the estate.

If you do not wish for your ex-spouse to inherit any jointly owned assets, NSS Legal can advise you on how to sever any joint tenancies – particularly over what is usually the largest asset, the matrimonial home.

You are then free to leave your share under the terms of your Will, subject to any court orders made during the divorce proceedings.

It will also be important to bear in mind any court direction during the divorce process over any asset you own during your lifetime and thereafter.

How Can NSS Legal Help?

NSS Legal take a sensitive approach to changes in your circumstances and are on hand to guide you through the important things to consider during that time.

If you need legal guidance on updating your Will during or after a divorce or severing joint tenancy assets, please get in contact with our probate solicitors in Golders Green on 020 8209 1222 and we can assist you through this. Alternatively, you can email us at info@nsslegal.co.uk. We can also assist with potentially changing a Will as a beneficiary, also referred to as variation of Will.
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What Happens to a Jointly Owned Property When Someone Has Died?

Fri, 21 Feb 2020 00:00:00 +0000

At NSS Legal, we can advise on the relevant procedures and guide you through the legal process in regards to Wills, probate and trust matters.

In this article, we cover the position of what happens on death when the deceased owned a property jointly as well as the effect each type of ownership has on death.

Tenants in Common and Joint Tenancy

The difference between these two types of ownership affects how a property passes after the death of one of the owners.

Joint Tenancy

Where the property is held as joint tenants, the owners collectively own the entire property. In legal terms, this means that despite having various owners attached to the property, there are no defined shares.

Tenants in Common

Under this type of ownership, each owner owns a defined share in the property. The way in which this is set up will depend on how the owners decide to split the ratio between themselves. It could be based on their respective contributions or they may decide to hold it in equal shares, regardless of who put in what.

What is the Declaration of Trust?

Where the property is owned as tenants in common, we would recommend you consider a Declaration of Trust and NSS Legal can advise you on this. This is a trust deed which specifically sets out how the property is owned and what happens when one of the co-owners dies or wishes to sell their share.

What Happens to Jointly Owned Property if a Valid Will is Not in Place?

The effect on death of one of the owners where the property is owned as joint tenants is that their share automatically passes to the surviving owners. This is regardless of whether there are Wills in place or not.

Under a tenancy in common however, as each owner has a specific and defined share, they are free to dispose of it as they wish under their Will.

The Rules of Intestacy

If there is no valid Will in place, the share passes under the rules of intestacy. This prescribes which members of your family receives your estate.

For more information on this procedure, take a look at our article on What Happens If Someone Does Not Have a Valid Will to understand more about this process.

Jointly Owned Property and Inheritance Tax

Whether inheritance tax is payable on a jointly owned property will depend on the value of the asset, the entire estate value and who the beneficiary is.

A discount may be applicable to the value of a jointly owned property to reflect the difficulty in being able to sell such a share. The percentage which can be claimed varies according to the circumstances and NSS Legal can assist with this.

How Can NSS Legal Help

NSS Legal Ltd can assist by clarifying how you presently own jointly held property and assist with severing or restoring a Joint Tenancy.

We've also written articles on various topics to help guide you through different legal processes such as dealing with property and affairs LPA .

NSS Legal are London based probate solicitors in Golders Green. If you need advice or guidance on any of the above information or our other expertise such as resealing a foreign grant of probate, please contact us on 020 8209 1222 or email us on info@nsslegal.co.uk

Business Lasting Power of Attorney Explained

Fri, 07 Feb 2020 00:00:00 +0000

As a business owner, implementing a Business Lasting Power of Attorney (LPA) should be of consideration to ensure your company can continue to operate if unforeseeable circumstances arise.

As power of attorney lawyers, NSS Legal can provide you with professional advice and guidance in this area of law. Our article explains what a Business LPA is and how it can help your business to continue operating.

What is a Lasting Power of Attorney?

An LPA is a legal document registered with the Office of the Public Guardian. It is created by the ‘donor’ who gives their representatives, known as the ‘attorneys’, the authority to make decisions regarding their affairs in the event the donor is no longer able to do so.

When the LPA is produced, it is only legally binding if it has been validly registered by the Office of the Public Guardian and:

• The donor is 18 or older; and

• The donor has ‘full mental capacity’ at the time of the creation.

If you're thinking "I have Power of Attorney, now what?", please take a look at our article on what is a Lasting Power of Attorney?

What is a Business Lasting Power of Attorney?

The same concept applies to a Business Lasting Power of Attorney, but it is specifically set up to deal with the donor’s business affairs.

The Responsibilities of the Business Lasting Power of Attorney

The Business LPA is made specifically to allow the attorney to make decisions on behalf of the company owner if the owner is unable to do so in unforeseen circumstances such as an accident which causes incapacity or a prolonged trip abroad. The powers of the attorney are limited to handling business affairs.

In these circumstances, the attorneys appointed in a Business LPA would take on the responsibilities required to keep the business running such as signing and authorising payment of wages and bills.

Why Might You Need a Business Power of Attorney?

For many clients, the people they would wish to appoint to handle their personal finances (should they become unwell) are not suitable to handle their business affairs.

Protecting Your Business

As well as ensuring there is suitable insurance cover such as key person insurance, having a Business LPA can be an essential to your business. Your family, employees or business associates may not legally be able to take on the responsibility in your absence.

If no one has the authority to take on this role, it can leave your business vulnerable without your involvement.

Consequently, it is in the best interests of the business to ensure a Business LPA is put in place to ensure as little disturbance to the running of a company as possible.

What Happens if You Do Not Have a Business Power of Attorney?

If you no longer have the capacity to make decisions in the interests of your business and a Business LPA has not been put in place and/or your company documents do not make provision for such a situation, an application for a deputy to be appointed to act on your behalf may need to be made instead.

The Disadvantages of a Deputy Application

This could involve the Court of the Protection and the process is much more cumbersome, costly and time-consuming. For example, in many cases, it can take at least six months for the legal process to complete, which can leave your business in an uncertain position during that time.

There is the added risk that the Court may not necessarily appoint the people you would choose.

What Are the Advantages of Having a Business LPA?

As well as ensuring a seamless continuity of the day-to-day running of the business, it will provide certainty for those working in the business and third parties who have an interest, such as banks and creditors being paid on time.

It also provides clarity and peace of mind that your Business attorneys will be people you have chosen personally.

Can One LPA Manage Both my Business and Personal Affairs?

Technically, this is a possibility. However, it may not be the best solution for your business.

You can have a separate LPA to look after your personal financial affairs. This is often recommended, as the people who would be capable of looking after your personal affairs may not necessarily have the required level of business acumen to look after your business, and you may not wish for someone who is suitable to look after your business to be involved in your personal affairs.

Organising Separate LPAs for Business and Personal Affairs

If you do choose to have separate LPAs, it is vital to have clear instructions for each one to ensure they know their responsibilities and where their powers start and end. By doing this, it should reduce the risk of conflict and set clear boundaries for each one.

NSS Legal can guide you through the bespoke clauses which would suit you in both your personal and Business LPAs.

How Can NSS Legal Help?

If you're not sure whether you need a Power of Attorney or Deputyship, we've taken a look at the difference in our article.

If you require NSS Legal to prepare and register Lasting Powers of Attorney for your business, please get in contact with our team of power of attorney solicitors in London on 020 8209 1222, and we can assist you through this. Alternatively, you can email us at info@nsslegal.co.uk.

An Increase to the Statutory Legacy: All You Need to Know

Wed, 05 Feb 2020 00:00:00 +0000

The Government has confirmed that on 6th February 2020, the statutory legacy is due to increase to £270,000.

In this article, we will explain what the Statutory Legacy is and why it has increased.

What is the Statutory Legacy?

The statutory legacy is an amount of money received by a civil partner or spouse when the deceased has died intestate (without making a Will) and is survived by a spouse/civil partner and children.

The statutory legacy as per the Inheritance and Trustees’ Powers Act 2014 (ITPA 2014), was increased to ensure that spouses/civil partners received a more favourable treatment on intestacy.

Why was the Statutory Legacy Implemented?

Before the Act was implemented in 2014, if the deceased died leaving a spouse/civil partner and children, the surviving spouse/civil partner received a Statutory Legacy of £250,000 plus the income of half of the deceased’s estate.

Since the ITPA 2014, the spouse received the Statutory Legacy and half of the remaining estate absolutely.

How Often Does the Statutory Legacy Change?

The Statutory Legacy is reviewed every five years by the Government. The amount is decided in line with the Consumer Price Index.

Why Should You Write a Will?

It is essential to be aware that if you do not create a Will, you do not choose how your family members are provided for. It's also essential to be aware of when a will is not valid to avoid any complications for beneficiaries.

This could lead to:

• Unintended taxation as your estate may not be distributed in the most tax efficient way.

• Discontented beneficiaries who challenge the provision they receive.

• Wider family members, who you do not wish to receive funds from your estate, becoming beneficiaries under the rules of intestacy.

Creating a Legally Binding Will

By creating a legally binding Will with the guidance of a solicitor, you decide who should receive your estate and how they should receive it. For more information, please take a look at our article on What Happens If Someone Doesn’t Have a Valid Will?

NSS Legal are experts in estate planning and Will drafting. We can advise you through the process to ensure your wishes are correctly drafted so that your loved ones are taken care of.

Please contact our specialist Will solicitors in Golders Green today for more information on any of the above!

Back to Basics: Income Tax and Trusts Explained

Tue, 07 Jan 2020 00:00:00 +0000

As with individual taxpayers, trusts can be subject to inheritance tax, capital gains tax and income tax.

How income tax is charged will be dependent on the type of trust that has been created and generally, the trustees are liable for any taxable income that the trust produces.

This article will broadly cover the circumstances in which income tax is charged to a trust and explain how different rates of income tax can apply to each type of trust.

For specific cases, it is always best to seek guidance for more detailed advice.

When is Income Tax Charged?

A trust will be subject to income tax on income which is generated from the assets held within that trust. This can include income which arises from interest on savings, dividends from shares and rent from a property.

The rate of income tax payable depends on whether a beneficiary has a right to the income or not.

There may also be circumstances where the income the trust produces is treated as the income of the settlor (the person/people who created the trust).

What are the Income Tax Rates for Trusts?

The rate of income tax charged to a trust varies with the type of trust, as each trust is taxed individually.

It will also depend on whether the beneficiaries or the settlor receives the income from the trust.

The table below sets out the income tax rates for the main types of trusts:

Type of Trust

Rate of Tax:

Dividend

Rate of Tax:

All other income

Accumulation/Discretionary

First £1,000: 7.5%

Over £1,000: 38.1%

First £1,000: 20%

Over £1,000: 45%

Interest in possession

7.5%

20%

How Does Dividend Income Affect Income Tax?

rate of income tax for dividends in an interest in possession trust

Where the trust is an interest in possession trust (i.e. the beneficiary has an immediate right to the income of the trust), the rate of income tax for dividends is currently 7.5%.

rate of income tax for dividends in an accumulation or discretionary trust

Where the trust is an accumulation or discretionary trust, the rate of tax is split. For the first £1,000 of dividend income, the rate of income tax which is applied is 7.5%.

Dividend income over £1,000 attracts a tax rate of 38.1% for trusts above the starting rate on/after 6 April 2016.

Trustees and the dividend allowance

Unlike individuals, trustees do not benefit from a dividend allowance, meaning the trust will be taxed at the appropriate rate on all dividend income and the trustees will be responsible for paying this liability.

Who pays the Income Tax?

The trustees of the trust will be responsible for paying the income tax on the income arising.

If income is then paid to a beneficiary who pays a lower rate of income tax (i.e. at less than the additional rate of 45%), the beneficiary may be able to claim back the extra tax paid on the trust income.

Will the Settlor of the Trust have to pay Income Tax?

There will be certain circumstances where other parties may need to pay income tax.

Where the person who set up the trust, known as the settlor, and/or his family have an interest in that trust, he/she may also have to pay income tax but may be able to seek reimbursement from the trustees for the tax paid.

Who Pays the Income Tax in a Bare Trust?

In respect of a bare trust, the beneficiary pays the income tax due, and this is paid through a Self-Assessment tax return.

If the beneficiary doesn’t ordinarily file Self-Assessment returns, they will need to register with HMRC by the 5th October following the year the income arose.

How Can NSS Legal Help?

For more information on this, please contact our team at NSS Legal, who will be able to provide further information on the duties and responsibilities of taxation on trustees and beneficiaries.

NSS Legal act as trusted advisors to families, trustees and beneficiaries over a range of legal matters. If you are currently considering creating a trust through your Will, our team of specialist trust solicitors in London can assist you through this process.

For more information on the general process and administration of a deceased person’s estate, take a look at our articles on Things a Representative Should Be Aware Of or Resealing a Foreign Grant of Probate.

What Happens if Someone Does Not Have a Valid Will?

Tue, 19 Nov 2019 00:00:00 +0000

When someone has passed away without leaving a valid Will, they are referred to as “dying intestate”.

This may include:

Where someone has not made any Will at all
Where a Will cannot be found
Where someone has made a Will, but it has not been validly signed
Where someone has made a Will which only deals with part of the estate - known as a “partial intestacy"
Where someone has revoked their old Will without making a replacement. This can include a foreign Will inadvertently revoking all other Wills.

As a result, rather than being able to choose who inherits the assets, the law – known as the Rules of Intestacy -sets out who will inherit the deceased’s estate. If someone dies without a valid Will there may be a conflict about who has the right to administer the estate. The Non-Contentious Probate Rules 1987 sets out who has the legal priority to administer the estate and apply for a Grant of Letters of Administration.

What are the Rules of Intestacy?

Depending on the relationship to the deceased, the Rules of Intestacy sets out where each family member will rank in priority to the others. The order of the entitlement is as follows:

Spouse or civil partner
Children/grandchildren
Parents
Siblings then half-siblings
Grandparents
Uncles and Aunts then half uncles/aunts
If there are no surviving family members, then it will pass to the Crown.

Where there is more than one person in a particular class e.g. more than one child, then all those who fall under that category will share the estate equally between them.

It is important to note that the Rules are prescriptive, and this will mean that other groups are not entitled to receive anything from the estate. Cohabiting partners, unmarried partners, step-children and friends are excluded under the Rules. You may find that a situation where distant relatives inherit everything instead of a long-standing partner or other loved ones. This can cause disagreements and tension between grieving loved ones and family members.

The Rules also don’t incorporate any available tax exemptions and reliefs to allow the estate to pass in the most tax-efficient way. Nor does it ensure that appropriate trusts are set up to protect your loved ones.

How is the Estate divided on Intestacy?

The way in which the estate is split under the Rules of Intestacy will depend upon which family members survive the deceased. Using the most common example, if the deceased dies leaving a spouse (or civil partner) and children, the estate is divided as follows:

Where the estate is worth £250,000 or less, the spouse (or civil partner) will receive everything
Where the estate is above £250,000, the spouse or civil partner receives £250,000 (plus interest) and all the personal possessions of the deceased

The rest of the estate is then split. Half of the remainder will be allocated to the spouse or civil partner absolutely. The other half will be divided equally on trusts between the surviving children. Where the deceased’s child has also died leaving children of their own, that child’s share will be divided equally between his/her children, i.e. the deceased’s grandchildren.

This outcome may not be suitable for the family – it may not provide adequately for a spouse of the deceased may have wished to cater to his children in other ways. However, the failure to make a valid Will means that there is no choice but to follow this formula.

The Process for Letters of Administration

In an intestacy, it is crucial to establish who has the legal right to act as Personal Representative (PR) for the deceased – unlike with a Will which would have appointed Executors. The Non-Contentious Probate Rules 1987 sets out the order as to who can act as a PR and apply for the Grant of Letters of Administration.

For more information on the role of a Personal Representative, please take a look at our article on Things a Personal Representative Should Be Aware Of. Once a Grant of Letters of Administration has been issued, the administrators have the legal authority to administer the assets within the estate. From this, they can then settle any debts and liabilities, after which the estate assets can be distributed.

What If There are No Surviving Relatives?

In the case where the deceased has no surviving relatives, their estate will be handed to the Crown. HM Treasury will be accountable to administer the estate accordingly -this is referred to as ‘bona vacantia’.

How NSS Legal Can Help

We can help the family members of the deceased navigate the Rules of Intestacy and Non-Contentious Probate Rules. This will include assisting those entitled to act as Personal Representatives in valuing the estate’s assets and liabilities, advising on the availability of tax reliefs and exemptions and preparing and submitting to HMRC the Inheritance Tax account and application for the Grant of Letters of Administration.

If required, we can also assist the PR’s in distributing the estate in accordance with the Rules of Intestacy and winding up the estate. We can also advise on how best to arrange settling any inheritance tax liability from the deceased’s assets, particularly where the estate comprises of very few liquid assets.

We can also help with changing your will after a divorce to ensure that all of your personal affairs are kept up to date to avoid any confusion.

As will and probate solicitors in Golders Green specialising in Will drafting, Probate and Estate Administration, we can advise you on preparing suitable Wills to avoid your family being lumbered with the statutory Rules of Intestacy in the event of your untimely death.

For further information on the advantages of using a solicitor for drafting your Will, read our article on Why You Should Use a Solicitor Over a Will Writer or find out more about our other services in our article on Resealing a Foreign Grant of Probate.

What is a Lasting Power of Attorney

Wed, 06 Nov 2019 00:00:00 +0000

A Lasting Power of Attorney is a document which legally enables you to choose who makes decisions on your behalf if you no longer have mental capacity.

As power of attorney solicitors specialising in this area of law, we can help you to understand the implications and advantages of arranging a Lasting Power of Attorney. This article will explain some of the fundamental aspects when using a power of attorney and the circumstances where they may be necessary.

When Would a Lasting Power of Attorney be used?

A Lasting Power of Attorney is created whilst you have decision-making capabilities as a precaution for a future time where you may be unable to make decisions for yourself.

A Lasting Power of Attorney would generally be used when an adult is no longer capable of looking after their own affairs, whether this is financial or health-related. Lack of capacity is not only associated with old age but may arise from a serious illness or unexpected injury resulting in hospitalisation (e.g. from a car accident). As solicitors specialising in this area, we can advise you on implementing your wishes within the Lasting Power of Attorney document to put in place future arrangements for your attorneys to follow. As a result, you control who acts for you on your behalf to make financial and health decisions.

A Lasting Power of Attorney would also act to relieve stress on family members, as once it has been registered, someone can step in to make decisions on your behalf straight away should you fall unwell.

We can provide advice on what provisions to include in your Lasting Powers of Attorney to suit your circumstances. This can include having separate attorneys to run your business or personal wishes for what type of care or treatment you receive if you are unable to make decisions for yourself. Lasting Power of Attorney for business owners is something often overlooked, however, is essential for ensuring continuation of the business.

Who Can be Selected as an Attorney?

The role of an Attorney demands a significant amount of responsibility and moral accountability. It is essential that whoever you decide to act on your behalf is suitable for the role.

As the decision is a personal choice, the attorneys may include a combination of the following:

o A spouse or partner;

o Family; or

o Friends.

There may be circumstances where it is suitable to appoint a professional such as a solicitor or accountant but, as this will incur extra expense and they are unlikely to have intimate personal knowledge of your wishes, you may wish to reserve the role for family or a close friend. You are also able to appoint replacement attorneys should your original attorney be unable to act.

What are the Advantages of Using a Lasting Power of Attorney?

Creating a Lasting Power of Attorney while you are well, allows you to choose who you would like to step into your shoes and make decisions on your behalf. You can appoint the same attorneys for both Health & Welfare and Property & Financial Affairs, or you may wish to select different attorneys for each role.

Cost-Effective

If you lose capacity and you didn’t put in place a Lasting Power of Attorney, then someone on your behalf will need to make an application to the Court of Protection for a Deputyship Order to be able to make decisions on your behalf. This is a much more costly, involved and time-consuming process at a point where decision making may be critical, and family stress is likely to be high.

Legal Clarity

It offers peace of mind to you and your family, knowing that you have set out who makes decisions on your behalf if you can no longer do so on your own. Unlike a Court of Protection Order, you have full say as to who will act. With a Court of Protection Order, anyone can apply for a Deputyship Order to take care of your affairs in situations where you have lost capacity. This may not necessarily be the people you would have chosen yourself.

Faster Process

A Lasting Power of Attorney takes a short time to register, roughly ten weeks. Once registered, it can be used straight away (for Property & Financial Affairs) or straight away if you become incapacitated. In contrast, applying for a Court of Protection Order after you have lost capacity can take around six to ten months. This will, no doubt, cause a long period of uncertainty and distress for those trying to take care of you when you are already unwell.

Provides Comfort

When you have put in place a Lasting Power of Attorney, you are safe in the knowledge that you have appointed people you trust to look after your affairs if needed.

How Long Does a Lasting Power of Attorney Last?

A Lasting Power of Attorney can only be used during the lifetime of the donor (the person creating the LPA). On death, the attorneys are no longer empowered to manage any of the assets, and the Lasting Power of Attorney will come to an end. The Office of the Public Guardian will need to be notified of the death as soon as possible.

If you decide to change your mind (and have decision-making capability), you can either revoke the Lasting Power of Attorney or revoke it and replace it with a new Lasting Power of Attorney appointing new attorneys at any time.

An Attorney may decide they no longer wish to act and they can formally end their involvement by filing a disclaimer with the Office of the Public Guardian. An attorney’s appointment will also come to an end if they lose capacity themselves. An attorney under a Property & Financial Affairs LPA will also cease to act if they are declared bankrupt.

There may be other situations where the attorney is no longer suitable to act, and an application can be made to the Office of the Public Guardian to remove the attorney.

How Much Does it Cost for a Lasting Power of Attorney?

Currently, the Office of the Public Guardian charges a registration fee of £82 per Lasting Power of Attorney. Therefore, if you require both types of Lasting Powers of Attorney, the registration fee will be £164.

If you're unsure as to whether an LPA is the right next step for you, we've highlighted the difference between lpa and deputyship to make things a little easier.

If you wish to engage NSS Legal to prepare and register your Lasting Powers of Attorney, we offer a competitive fixed fee charging scale. Where appropriate, we can also act as your Certificate Provider, certifying to the Office of Public Guardian that you understand the implications of what you are doing and that no one is forcing you to put these arrangements in place.

If you need advice on how the role of a Personal Representative in the administration of an estate, please take a look at our article on Things a Personal Representative Should Be Aware Of for further guidance.

Things a Personal Representative Should be Aware Of

Thu, 03 Oct 2019 00:00:00 +0100

A personal representative (PR) is the term used to describe the person or institution who has the responsibility of dealing with the administration of a deceased person’s estate. Where there is a valid Will in place, they are known as the executors. If there is no Will in place, then the laws of intestacy will dictate who is able to deal with the estate, known as administrators.

As solicitors specialising in Will drafting, probate and estate administration, NSS Legal Ltd can help you understand your duties as a PR as well as assist with the probate. This article will highlight some of the key responsibilities of PRs.

Overall Aim

It is the duty of the PRs to establish the extent of the deceased’s estate, collect in the assets and settle outstanding debts and liabilities. This includes paying any inheritance tax which is due, other taxes and funeral expenses etc. Once completed, the PRs are then tasked with distributing the estate in accordance with the terms of the Will or the laws of intestacy. It is an important role which needs to be carefully executed by those entrusted with the estate administration. Failing to do this may lead to disgruntled beneficiaries making a claim personally against the PRs.

Arranging the Funeral

Whilst it is the legal responsibility of the PRs to deal with the funeral arrangements, more often than not the family of the deceased would like to at least have some input in this. The funeral is an expense of the estate and, as such, the PRs will need to ensure that there are sufficient funds in the estate to be able to settle this.

Valuing the Estate

This will include establishing what assets there are, if the deceased held any assets jointly with another party, the location of these assets and the values. The PRs have a legal responsibility to ensure that as well as correctly identifying the assets, they are properly valued. This may mean involving professionals, such as chartered surveyors, to provide formal valuations.

Organising Debts

Debts can be as simple as an unpaid water bill or something which requires more thorough investigation such as an undocumented loan made to a friend or family member. In a similar way to the assets being valued, all debts and liabilities in existence as at the date of death need to be accounted for.

Notice to Unknown Creditors

As part of the investigation into the debts of the deceased, the PRs should think about the likelihood of there being unknown creditors or people who may wish to make a claim against the estate. The PRs can deal with this duty by placing statutory advertisements in the newspaper, which includes one in the London Gazette and where the deceased owned a property, a newspaper circulated in the locality of their home.

Executors’ Account

It is important to ensure that the PRs are able to account for the receipts and payments of the estate and to ensure that estate monies are not mixed with their own. PRs should think about opening up an Executors’ account as soon as it is practicable. This will also be useful when it comes to preparing the estate accounts, copies of which residuary beneficiaries are entitled to see.

Inheritance Tax Forms and Inheritance Tax payments

The PRs will need to ensure that the correct inheritance tax (IHT) form is prepared and where the estate is taxable, arrange for the payment of IHT or at least part of it. There are options available to PRs in respect of how this is funded and paid and NSS Legal can discuss this in more detail with you.

As well as IHT, there may be income tax and/or capital gains tax due from the estate.

Applying for a Grant of Probate or Letters of Administration

The PRs may need to apply for a Grant of Probate (where there is a Will) or Letters of Administration (where there is no Will), which will provide the PRs with the legal authority to collect in, sell or transfer the estate assets.

Once the assets are collected, all the debts and liabilities are settled, the PRs will make the payments or transfer the assets to those entitled to receive these.

If you are reviewing your Wills and wish to discuss with NSS Legal Ltd the appointment of an Executor, how your beneficiaries should receive assets and other key provisions of your Will, read our article on Why You Should Use a Solicitor Over a Will Writer to understand the importance of using solicitors to draft a Will.

Probate Fee Increase

Mon, 01 Apr 2019 00:00:00 +0100

Probate Fee Increase

The fee is set to rise from April 2019 (the exact date of which has not yet been confirmed), from £155 for a probate application made via a solicitor to the following scale charge:

Value of Estate	Probate Fee
Up to £50,000	£0
Exceeds £50,000 but does not exceed £300,000	£250
Exceeds £300,000 but does not exceed £500,000	£750
Exceeds £500,000 but does not exceed £1 million	£2,500
Exceeds £1 million but does not exceed £1.6 million	£4,000
Exceeds £1.6 million but does not exceed £2 million	£5,000
Exceeds £2 million	£6,000

This will be on top of any inheritance tax which is payable on the estate which, at least in part, has to be paid before an application for a grant can be submitted.

What options are available to the executors/administrators?

Bank accounts

Banks will normally release funds for inheritance tax, funeral expenses and the probate fee before a grant is obtained. Otherwise, where the funds go over their specified threshold, they will freeze the account, releasing the funds once the grant is produced and their formalities completed.

Executor Loans

If there is insufficient cash in the estate, the executors may wish to look at obtaining a loan. This can be from banks, themselves, beneficiaries, or one which may not be conventionally thought of, pension funds.

Life insurance

If you suspect your estate will have insufficient liquid assets, then another option would be to set up an insurance policy now. One benefit is that, so long as it has been set up correctly, it would be paid outside of the estate and therefore not subject to inheritance tax. Moreover, the insurance company usually pay out immediately on sight of a death certificate, meaning there is cash available soon after death without the need to wait for a grant.

Business Property Relief: Tax Planning for the Business Owner

Tue, 19 Mar 2019 00:00:00 +0000

There are a variety of estate planning mechanisms which allow for inheritance tax (IHT) to be mitigated or reduced entirely and one which is sometimes overlooked when drafting a Will is Business Property Relief (BPR). If BPR is available, it can be generous in its application reducing the IHT by either 50% or 100%, depending on the asset involved. Employing BPR strategies and careful drafting in your Will can allow for significant tax savings. Conversely, if the business is not considered as part of the drafting process, you may end up not maximising the relief.

As with any IHT relief, certain conditions need to be met in order to qualify for it. These are broadly set out under 3 headings but there are usually exceptions to these, which is outside the scope of this article:

Minimum ownership requirement;
Fall within a prescribed list of business property; and
Not fall within the automatic exclusion

1. Minimum Ownership

The asset in question must have been owned for a period of two years immediately preceding the transfer. The transfer in the context of a Will is the date of the death of the owner. Where business property has been replaced, the earlier and replacement property must have been owned for two years within the five-year period prior to the date of transfer.

2. Categories of Business Property

The rate of BPR which is available centres around the type of property. For example, a business carried on by a sole trader, a partnership share, holding unquoted company shares (including those listed on AIM) can attract 100% relief, whereas quoted company shares giving the owner more than 50% of the votes will qualify for 50% BPR.

3. Automatic Exclusions

As well as being a business which is carried on for gain, it must be one which does not wholly or mainly:

deal in securities, stocks or shares;
deal in land or buildings; or
make or hold investments.

Cross Option agreement

These are business documents drafted to deal with the death of a partner or shareholder to ensure it continues to trade and does not automatically dissolved as a result of death and so long as these are drafted carefully, BPR can be preserved. This ought to be coupled with suitable cover under life assurance being in place.

If the clause is drafted obliging the survivors to purchase the interest or the personal representatives of the deceased’s estate being bound to sell to the survivors, then BPR would be unavailable.

Planning Considerations

As well the loss of BPR should there be a shift in the business model from wholly or mainly trading to one within the automatic exclusions, there are other pitfalls to be aware of:

Sole Traders

Unless owned by a trust and run by a beneficiary of that trust, BPR is not available for land/buildings, machinery or plant used wholly or mainly by a sole trader.

Partners

Loans made by partners do not attract BPR.
Whilst 100% BPR is available to for an interest in a partnership, only 50% relief is available for assets loaned for partnership use.

Directors

A director’s loan account standing to credit falls outside of BPR assets unless this was converted to share capital before the transfer or death.
A shareholder, with control over the company, who owns property used by the company will only be able to claim 50% BPR.

Your Will: Why you should use a solicitor instead of a will writer

Tue, 12 Mar 2019 00:00:00 +0000

Often driven by an advert showing a modest charge for preparing Wills, some people will choose to use a will writer instead of a solicitor when it comes to drafting their Wills. This can often be a false economy and lead to issues down the line.

Anyone can be a Will Writer

It takes years of studying, exams and training before you are legally qualified to call yourself a solicitor whereas anyone can start a will writing service and become a will writer, raising concerns about the level of expertise that can be offered by a will writer when preparing wills.

Bespoke legal advice

You might think that your Will is going to be straight forward but unless your adviser drills down into the background of your family history, assets or tax implications, you may not be armed with the level of information and advice needed to have a Will drafted suited to your needs and solicitors are in a position to offer multi-faceted and specialist advice.

Regulated advisors

Whilst you wouldn’t think about things going wrong before engaging a solicitor, you can be assured that as regulated advisors there are processes and safeguards in place in the unlikely event that something did go wrong. The first stop will the law firm and if your complaint wasn’t dealt with to your satisfaction, you can refer it to the Legal Ombudsman. There is no similar regulation of most will writers meaning you may not be able to do much if you are dissatisfied.

Insurance

Being part of a regulated industry means that solicitors need to have in place robust insurance to cover any loss or negligence on part of the solicitor or the law firm. Unregulated will writers have no requirement to have insurance in place so there is no guarantee that any loss suffered will be compensated should things go wrong as a result of a will writer drafting your Will.

Contesting the Validity of the Will

Solicitors take contemporaneous and detailed notes of discussions and instructions at the time a Will is prepared. There is nothing to stop someone from challenging a Will, and two reasons where it could be challenged may be because the challenger doubts the capacity of the person who made the Will or they think the person was forced to make it. At the time a Will is made, solicitors will go through a process to ensure that they are satisfied the person making the Will has the requisite capacity to make one and that they weren’t being pressured into making it. It is unlikely that detailed records would be kept by unregulated will writers. Make sure to review our article for more information on when a will is not valid.

Independence

We often find that will writers or other organisations, such as a bank, will insist on being appointed as executors and as a result, charge for this. Or, it may seem like you don’t have the freedom to choose your executors and this is simply not the case. It is entirely your choice and solicitors will guide you through the options to establish the suitability of the appointment of your executors.

Storage

Solicitors will often provide a storage service, holding your Will (and sometimes other documents, like deeds) in a secure and fire-proof safe, with suitable insurance cover in place. The same may not be true for unregulated will writers. If the law firm were to cease to exist or became insolvent, the Solicitors Regulation Authority would oversee who takes over control of clients’ documents. A will writer could disappear and there is no real process to trace your important documents.

NSS Legal Limited are a team of will and probate solicitors in Golders Green who specialise in drafting Wills and estate planning and can guide you through the process to ensure your wishes are accurately noted and your loved ones taken care of.

Digital Assets

Wed, 06 Mar 2019 00:00:00 +0000

As technology develops, so too does the way in which we live our lives. Increasingly, we are moving away from face-to-face interaction to a digital online presence and the same is true for the way in which our assets take form. It is important to note, however, that the way in which these assets are dealt with won’t necessarily be the same as your tangible assets.

What are digital assets?

You will no doubt have one or more of the following:

Online music albums
Photographs in an iCloud account
Email and social media accounts, such as Facebook or Instagram
Cryptocurrencies such as Bitcoin
Online bank accounts
Gaming characters or worlds

Whilst these all fall under the broad term of being digital assets, they can be further divided into categories according to use and ownership, which will, in turn, determine what can happen to them on death.

Ownership or Licence

The first thing to establish is what you own and what you are merely licensed to use. Clearly, funds you hold in an online bank account or as cryptocurrency will be yours and be dealt with in a similar fashion to that of your bank account held with your high street bank. Your music collection, your social media accounts isn't something which you own and accordingly, are unable to leave under the terms of your Will. In the days of CD players and more recently iPod, you might have been able to physically transfer these to your intended beneficiary. Or, with any online account, you could pass on your passwords which would then allow them to listen to the music or access the content. However, this risks breach of the user agreement or the terms of use. The terms of the agreement will set out what can and can’t be done.

Estate Planning

All assets, tangible or intangible, will form part of your estate, including those digital in nature. You are able to deal with these in general terms or, where they are of particular value, sentimental or financial, then you may wish to ensure that it is specifically dealt with under the terms of your Will.

You will need to think about ensuring you have digitally literate executors. It may, therefore, be sensible to appoint separate executors to those administering the rest of your estate.

Some social media platforms have in place an option to deal with an account on death. You can select to appoint a Legacy Contact or Trustee who will, on your death, have limited access to your account. They can then either maintain within the parameters set by the account provider or delete it or you may select that it is deleted automatically on death. It is always worth checking to see what your options are and making sure you select the one suited to you.

Personal Log of Assets

It is always recommended that you have a list of your assets in a secure place so that your executors are quickly able to establish the extent of your estate on death. The same will be true, and perhaps more importantly, for digital assets. There are specialist “password locker” companies who will securely store your passwords but as with most things, you’ll need to weigh up the risks and the cost against the benefit before signing up to it.