Archives: Expertises

Setting up a Charity

Why set up a charity?

A charitable trust can be an effective way to support your chosen cause in a tax-efficient way whilst leaving a lasting legacy as a charitable trust can run indefinitely.

However, the complex legal and regulatory framework governing charities as well as shortages of government funding for charities pose challenges to the setting up of new charities.

Our Private Client team is experienced in setting up charitable trusts from guiding you though the start-up process to helping you decide on the most suitable legal structure, implementing such structure and registering the charity with HMRC and the Charity Commission.

How to set up a charity

The first step is to decide on the purpose of your charity and what it is going to be set up to achieve. The Charities Act dictates that in order to be a charity in England and Wales its purposes must be “charitable”. To qualify as “charitable” you must choose a purpose which falls under one or more of the “descriptions of purposes” listed in the Charities Act and the charity must benefit the public in general or a sufficient section of the public.

Once you have decided on the charity’s purpose, the next step is to decide on its organisational structure. There are a variety of structures that can be used for a charity. The choice of structure will depend on the way in which the charity will be run, the size of the charity and whether the charity will be owning property and/or employing people.

There are four main types of charity structure:

1. a charitable incorporated organisation
2. a charitable company limited by guarantee
3. a charitable trust run by the trustees
4. an unincorporated association operated by trustees appointed by the members of the association

It is important that you choose a structure that is appropriate for your charity that fits with how it will operate. Our Private Client team can guide you on choosing the legal structure which most effectively meets your charities’ objectives and planned operations.

Depending on the choice of structure, your charity will need an appropriate governing document setting out its name, objects, powers, how it will be run, how meetings will be held etc. Our lawyers are highly experienced and able in producing such documents tailored to the specific charity and its objects.

Once you have put in place a governing document for your charity, you will need to ensure that the necessary registrations are completed. We can guide you through the registration processes, to ensure that your charity is successfully registered with both the Charity Commission and Her Majesty’s Revenue and Customs.

Probate / Contested Probate

Our Private Client team is experienced in handling complex, high-value probates and international trusts and estates disputes. We act for executors, beneficiaries and trustees, adopting a sensitive approach to ensure that family relationships are maintained.

We handle all aspects of the probate process, including review of the Will if there is one, applying for a grant of representation, paying inheritance tax, collecting in the estate’s assets and distributing the estate in accordance with the Will or intestacy rules. We have a particular expertise in handling probates with multi-jurisdictional assets including advising on double taxation issues.

We are also experienced in advising on contested probates, to include advising disgruntled beneficiaries on claims to estates or claims against unfit executors and trustees. We aim to resolve matters outside of the court process where possible, using mediation and negotiation to come to an agreement. However, where court proceedings cannot be avoided, we work in parallel with our highly-regarded Litigation team to handle complex disputes and achieve a resolution to what is often an emotional and difficult time for the family.

Our probate offering includes advice on:

• a beneficiary’s right to information
• contesting a will
• removal of trustees and executors
• international trusts and estates disputes
• Inheritance Act claims
• breach of trust claims
• incapacity and the Court of Protection
• property claims
• costs and funding.

For information on our charges, please refer to: Probate Services Fees

Office of the Public Guardian / Powers of Attorney

What is a Lasting Power of Attorney?

A Lasting Power of Attorney is a document put in place to allow the ‘donor’ to appoint ‘attorney’ to act on their behalf in the event that they lose the ability to make their own decisions e.g. due to an illness or accident. At the time the power is given, the donor must be capable of understanding its nature and effect for it to be valid.

There are two types of Lasting Powers of Attorney which can be put in place:

1. Health and Welfare – where an attorney is given the power to make decisions about life-sustaining treatment, moving into a care home and medical care etc.
2. Property and Financial Affairs – where an attorney is given the power to manage a bank account, pay bills and sell or re-mortgage your home.

Lasting Powers of Attorney must be registered with the Office of the Public Guardian before they can be used. Registration can be by you or your attorney for a fee set by the Office of the Public Guardian.

Why should Lasting Powers of Attorney be put in place?

Lasting Powers of Attorney enable you to make provision in advance for the possibility of your becoming incapable of managing your own financial and welfare affairs during your lifetime. This becomes increasingly important as the risk of supervening mental incapacity grows due to longer life expectancies.

An ordinary power of attorney is not sufficient in such circumstances as it is automatically revoked by mental incapacity.

It is also possible to apply to the Court of Protection for permissions to act on behalf of someone’s affairs in the event of incapacity or illness, but the procedure can be costly and time consuming. More importantly, reliance on the Court of Protection route means that you will have lost the right to choose who will have the responsibility for looking after your affairs.

Inheritance Tax Planning

What is Inheritance Tax?

Inheritance Tax is a tax applied to the estate of someone who passes away.

The standard Inheritance Tax rate is currently 40% and it is charged on the part of your estate that is above the threshold set by the government.

There is currently no Inheritance Tax to pay on your estate should you leave everything to your spouse or civil partner, a charity or a community sports club.

Relevance of Domicile to Inheritance Tax

Domicile is a concept of general law and not tax law. An individual is normally domiciled in the country where they have their permanent home, being the place with which they have the closest family, social and economic (business) ties and to where at some point in the future they intend to return, e.g. on retirement.

There are three types of domicile: a domicile of origin, a domicile of dependence and a domicile of choice.

1. Domicile of origin: this is normally your father’s domicile at the time of your birth. A domicile of origin can never be extinguished, but it can be displaced by acquiring a domicile of choice or dependence.
2. Domicile of choice: there are two elements to acquiring a domicile of choice: (i) you must leave your country of domicile and settle in another country; and (ii) you must provide evidence that you intend to live there permanently or indefinitely.
3. Domicile of dependence: a dependent person has the domicile of the person on whom they are considered to be dependent by law. Dependent persons are unmarried children under the age of 16 and mentally disordered persons.

References to someone who is UK domiciled, means that they are domiciled in either England and Wales, Scotland or Northern Ireland.
Even if you are not domiciled in the UK under general law, the Revenue will treat you as ‘deemed domiciled’ in the UK for Inheritance Tax if at the date of death:

1. an individual has been resident in the UK for 15 out of the past 20 years, or
2. an individual was born in the UK with a UK domicile of origin and return to the UK having obtained a domicile of choice elsewhere.

If you are domiciled or deemed domiciled in the UK, then Inheritance Tax applies to your worldwide assets.

If you are not domiciled or deemed domiciled in the UK, then Inheritance Tax applies only to your UK assets.

Where assets pass from a UK domiciled spouse or civil partner to a non-UK domiciled spouse or civil partner, then the spouse exemption is limited to the Nil Rate Band.

What can be done to mitigate Inheritance Tax?

There are a number of ways in which Inheritance Tax can be mitigated with careful planning. However, the government regularly changes the rules so it is important to review any planning put in place periodically to ensure the planning has the desired effect.

The common Inheritance Tax planning reliefs are as follows:

1. Business Property Relief which may reduce the value of a business or its assets for the purposes of Inheritance Tax.
2. Agricultural Relief may also be applied to reduce the value of your estate if your estate includes a farm or woodland.
3. Inheritance Tax reduced rate of 36% may be applied to your estate if you leave at least 10% of your net estate to charity.
4. Relief from Inheritance Tax on gifts which you make from your estate providing you survive 7 years of the gift.

Our Private Client team are able to advise you on a wide range of Inheritance Tax planning options, including those listed above and many others. We will conduct a thorough review of your current exposure before providing you with specific and tailored solutions to meet your needs and achieve the best results for you.

General Advice on All Related Aspects of Development Law

We can help with planning due diligence exercises, and can advise on:

• All types of agreements for works in the highway or for the adoption of new highways
• Rights of way issues including stopping up and diversions
• Environmental assessment and environmental warranties
• The impact of restrictive covenants on planning
• What to do if threatened with compulsory purchase
• Village greens and commons
• The implications of rights of light
• The potential use of permitted development rights as an alternative to a full planning application; and
• Community Infrastructure Levy problems.

Advising on Development Plan Concerns

We can advise on:

• Promoting your land through the SHLAA or development plan process
• The implications of allowing others to promote your land; and
• Objecting to strategic proposals.

Negotiating Section 106 Planning Obligations

The introduction of Community Infrastructure Levy led many to assume that the s.106 planning obligation regime (providing for legal obligations to be entered into to mitigate the impacts of development) would disappear. Instead, the regime has had renewed importance, used in relation to financial contributions to infrastructure, public open space, affordable housing and other matters. Limitations on the use of planning obligations are set out in the Community Infrastructure Levy Regulations 2010; they must be (1) necessary to make the development acceptable in planning terms, (2) directly related to the development, and (3) fairly and reasonably related in scale and kind to the development. All those with an interest in the land – including mortgagees – are usually required to join in, which can give rise to problems and delay. We can:

• Negotiate and draft s.106 agreements
• Deal with the concerns of secured lenders who are being asked to join in; and
• Deal with variations of existing agreements, under s. 106A of the Act.

 

Advising on Enforcement Notice Problems

The use of enforcement powers can give rise to criminal prosecution, and the use of Proceeds of Crime Act powers. We can:

• Seek to negotiate away problems
• Assist in applications for Certificates of Lawfulness
• Deal with enforcement notice appeals; and
• Represent you in criminal proceedings.

Advising on Heritage Law, Including Listed Building Consent Applications & Appeals

The protection of heritage assets has implications for the entire planning process. We can assist:

• By helping with listed building and conservation area consent appeals
• By suggesting ways to mitigate the impact of proposals on designated heritage assets such as listed buildings, scheduled monuments and conservation areas, and non-designated heritage assets such as “locally listed” buildings; and
• By representing you if you are prosecuted for alleged criminal offences arising from legislation.

Dealing with All Aspects of Planning & Listed Building Appeals

The remedy for a refusal is to appeal. We can:

• Advise on appeals against refusal (or non-determination), including advising on the prospects for the appeal
• Handle every aspect of the appeal process, including advising on the process (written representations, hearing or local inquiry) representing you during the appeal (including advocacy) and co-ordinating other experts, if needs be; and
• Advise on the nuances of appeal decisions, including challenge if needs be.