The health and safety of our staff, clients and contacts is of paramount importance. We are monitoring the situation closely and continue to follow the advice of the National Public Health Emergency Team.
We are mindful of our collective responsibility to take all measures possible to minimise the impact of this virus.
This office will remain open for as possible but work will be increasingly done remotely. There will be no public access to the office.
We cannot facilitate attestation or swearing of documents for the public at least until further notice.
We remain accessible by phone, fax and email. We will continue to provide our services in the same professional manner as always.
Please stay safe and well and follow public health guidelines.
Go mbeirimíd go léir beo ag an tam seo arís.
It’s done! Our Essential Guide to making a Will is now complete and has taken it’s rightful place with it’s companion volumes.
All are available as Free Downloads.
Brexit, the withdrawal of The United Kingdom from the European Union. It’s been in the news for so long already without a major shock to or impact on our lives, that it just sits there in the background. Like a dull ache when in fact it’s going to be a major pain in the you know where.
The real question is whether we face a hard Brexit or a soft Brexit, with the smart money currently favouring the hard option. The reality is that either way, it’s going to have a major impact on our daily lives. For instance, on the food we eat and the price we pay for that food.
The food we eat
Look at the food items on the shelves of the multiples. How much of that arrives on these shelves off the back of trucks that disgorge on a daily basis at Dublin port? Two of the biggest ferries in Europe deposit them here and they then travel our roads to arrive in our locale. Think Tesco and M&S in particular. The German discounters will not be leaving the EU any time soon and they have their own distribution centres here already. After Brexit all these items will be imported from a non EU country. So what?
Britain wants a divorce from the EU, but at the same time a new engagement with the EU, one to replace the other directly. But the EU won’t play ball. Britain can’t have a new deal unless their divorce is first finalised. And all divorces are messy. So it’s going to be some time after Brexit before we can have some degree of normality and certainty with British – Euro trade, meantime all such trade will be conducted on World Trade Organisation terms. Messy! Food items after Brexit?
This was brought home to me during a recent flight from Cork to Faro with Aer Lingus. Feeling peckish, I ordered from the nice cabin crew a bacon and sausage baguette with Ballymaloe relish and a Finn McCool cake. The relish probably influenced me into thinking I was buying local. It turned out that the baguette was from The Brunch Box in Dundonald, Belfast, the cake from Portadown. I presume that this was no coincidence, more an example of economies of scale with BA now owning Aer Lingus and most likely doing a fair business with these companies. No problem there. But the question struck me, what happens these items after Brexit? They will be produced by non EU countries so will go through the same trade arrangements as all other countries that don’t enjoy specific trade arrangements with the EU. They are also food items, so will have to satisfy the rigorous EU food regulations but with no automatic certification to allow full access to EU. That will mean extra time to gain access for every food item. And time means money. So who will pay for the extra cost involved?
The baguette and cake were good for airplane food and served their purpose. But they gave me food for thought. Literally.
We all have milestones in our lives. Moments of significance, particular turning points. They can be monumental or even insignificant in the overall scheme of things, but they are still milestones.
Opening up in private practise 23 years ago was one such milestone, moving to our current offices 16 years ago was another. By comparison, this latest one is minor, teeny even. But I believe it still be be a milestone. We aim to continue to improve in providing value to our clients, value in terms of work done and advices given, and in the manner in which we deliver. We are finalising a range of downloadable advisory booklets on a rang of topics. All available for free.
Our first Advisory Booklet download. “Your own front door: 7 stages in buying your new house”. Its now available for free. Check it out.
There are more in the pipeline, so keep an eye out for them.
We are here for you.
CAPITAL ACQUISITIONS TAX:
Capital Acquisitions Tax applies equally to Gifts and Inheritances, the original distinction now long forgotten. In 2015 CAT raised approx €400m for Government coffers.Even though it is levied at more than 3 times the international average, it’s not going to be reduced here anytime soon.
We, the Taxpayer, are allowed a lifetime Tax Free Threshold on which we don’t pay any tax. The Threshold is dependent on our relationship with the testator (inheritance) or donor (gift). Thresholds and the applicable rate of tax have in recent time become a moveable feast. Look at the differences between 2008 and 2017:
|Rate of Tax||20%||30%||33%|
|Group A Threshold||€521,208.00||€250,000.00||€310,000.00|
Look at the effects of this using various amounts of benefit:
The Capital Acquisitions Tax take on an estate increased from an average of just under 15% in 2008 to almost 28% in 2017! Tax creep in operation.
You work hard during your lifetime to gain reward. You pay your taxes on that reward and you want to leave what you have left on your death to your loved ones, your nearest and dearest. And the Government will take more again, up to 28% of what has already been taxed.
The lesson is simple. Do not ignore estate planning. Tax avoidance is legal, tax evasion is not. Avail of the mechanisms available to reduce the tax payable on your estate. Take expert advice. Consult a Trust and Estate Practitioner.
* Current Tax free Thresholds at May 2017 are: Class A €310,000; Class B €32,500; and Class C €16,250.
Declan O’Toole BCL is a Trust and Estate Practitioner and advises on Estate Planning.
Should I transfer my Bank Accounts into Joint Names?
In advising on Lifetime Planning, the potential for financial abuse is a major and constant concern. One particular example of financial abuse is the misuse and abuse of Joint Bank Accounts. Older people are often encouraged to add the name of a family member or carer to their Bank Account for the convenience of the older person. This is not as simple as it might seem. There are various potential legal implications on transferring a Bank Account into joint names. These will depend on the intention of the original account holder.
This type of situation is quite common in the case of older people, but is not solely limited to them. It certainly arises when people are particularly vulnerable, for example, when being admitted to hospital or long-term care, or where they are physically infirm and unable to access services directly themselves. They are then encouraged to transfer their Bank Accounts into the joint names of some other person, for their convenience. The arrangement is to facilitate the second account holder operate the account on behalf of the older or vulnerable and infirm person. If that is the situation, the new Joint Account Holder merely becomes an Agent for the older person. The legal interest in the account is effectively transferred into joint names, but simply to facilitate this arrangement. The important point is that there is no intention to transfer any beneficial interest. Therefore the presumption of a resulting trust arises. In such a case, on the death of the original account holder, the monies in the account revert on a resulting trust to his or her Estate. They do not pass by survivorship to the joint account holder.
Legal Nature of an “Agency” Account.
The named Joint Account Holder (Agent) only has authority over the money in the account, to the extent agreed by the Original Account Holder (Principal). If the account is opened for the convenience of the Principal only, any withdrawal from the account should be purely for the care and maintenance of the Principal. If there is a specific agreement between the Joint Account Holders, then the provisions of that agreement will apply. Such an agreement is distinct from the contract entered into with the Bank or Credit Union as to the operation of the account and the rights of the Joint Account Holders against the Bank or Credit Union.
If the Principal becomes mentally incapacitated, the relationship of Agent and Principal automatically ends. The operation of the Joint Account then automatically ceases, and the account falls to be operated either by an Attorney under an Enduring Power of Attorney that has been registered, if there is one, or alternatively, where there is no Enduring Power of Attorney, by the Committee of the Ward if the Principal has been adjudicated a Ward of Court. If there is more than 7,500 euro involved then the Principal must be adjudicated a Ward of Court.
On the death of the Principal, the monies in the Joint Account pass on a resulting trust to the Estate of the principal, they do not pass to the surviving Joint Account Holder who has no beneficial interest in the account.
Transfer of Account into Joint Names by way of gift:
If you wish to transfer an account into joint names by way of gift, there must be clear evidence to indicate such an intention. That intention should be contained in the documentation by which the transfer is effected. If this documentation does not reveal your intention, then there must be clear evidence of or proof of such intention to make such a gift. The onus of rebutting the implication of a resulting trust by way of such evidence, rests on the party claiming to be beneficially entitled by survivorship to the monies remaining in the account. The Joint Account Holder will have to produce evidence of an intention to give them the money in the account by way of gift, otherwise the monies will be deemed to be held by way of resulting trust in favour of the Estate of the deceased Principal. Intention is the key word. There must be clear evidence, preferably in writing of such an intention.
There may be Tax implications of making such a gift and these should be considered carefully. Even in circumstances, where it can be proven or shown that there was an intention to make a gift, the question of undue influence may then arise.
Will you transfer your Accounts into Joint Names?
If you are transferring your Accounts into the Joint Names of yourself and another person, you should clearly confirm your intention to the Bank or Credit Union concerned.
- This confirmation should be in writing so that the Bank or Credit Union will note it on your records;
You should clarify whether the Joint Account is for your benefit only with the Joint Account Holder merely acting as your Agent;
- If you intend that you and the other Joint Account Holder(s) should enjoy the benefit of the monies in the Joint Account, you should state such in writing. This in effect will confer a gift on the Joint Account. You should clarify whether this gift is to have affect at the date of the opening of this Account or on your death;
- Is the transfer into Joint Names from Husband to Wife or Father to Child? If so, is it the intention to benefit by way of gift the Wife or Child? Without such clarity, the presumption of advancement will apply.
If it was clear that there was no gift intended and the monies in the Joint Account revert on a resulting trust to the Estate of the original account owner on that persons death, then there can be no question of undue influence.
Where however, it was proved that a gift was intended, then the further question may arise as to whether the original account owner was induced by undue influence into making such a gift.
The Joint Account Holders do not need to be in any special relationship and the transfer does not have to be of manifest disadvantage to the Principal. Once a presumption of undue influence arises, it is then a matter for the Joint Account Holder to rebut that presumption and to show that the Principal entered into the transaction with the full knowledge of its advantages and disadvantages. This will depend on the question of whether the principal had comprehensive and independent legal advice about all aspects of the transaction.
Alternatively, whether or not undue influence applies, the issue of improbity might arise. If it is established that the transfer of Accounts into Joint Names was improvident, the transaction may be set aside on grounds of its improvidence.
Do not simply transfer accounts into Joint Names, instead seek out advice from a Solicitor experienced in advising in Lifetime Planning.
Declan O’Toole BCL TEP is a Trust and Estate Practitioner and advises on Lifetime Planning