Wills – Frequently Asked Questions
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If you physically don’t make a Will, the Intestacy rules shall apply. This means that government made Wills law will be implemented on your entire estate, and the authorities will distribute your assets according to the Intestacy rules that were created in 1925. Relying on this law rather than creating a Will has disadvantages. The law decides who benefits from your estate, not you, and as it was created almost a century ago, it does not bear much relation to modern personal and family situations.
Anyone over the age of 18 can make a Will. In special circumstances, such as being drafted into the Armed Forces, those aged below 18 can make Wills.
This includes everything you own at the time of your death (that is in your sole name) after all your outstanding liabilities have been settled; including probate costs, inheritance tax (if applicable) and funeral expenses.
Any money or assets held jointly do not form part of your estate. This also applies to life insurance policies held in joint names and those where you have already nominated the beneficiary at your death.
An executor is the person who will administer your Will after your death. They can be anyone you choose, for example: your spouse or partner, adult child, sibling, close friend or beneficiary. It is generally advisable to appoint a professional executor acting jointly with your spouse/partner/family member or friend.
It is always best to ask the person whom you wish to appoint whether they are willing to act. The duties of an executor are varied and can be very time consuming. As a result, people chosen to be executors, when called upon to act, often appoint a professional firm to help.
The costs and expenses incurred by executors, including the professional firm's fees, can be recouped from the estate.
This is a matter for careful consideration and discussion with all involved. Caring for your children up to the age of eighteen years is quite a responsibility, and should be given only to those who are in a position to do so. A good choice would be a family member or maybe a very close friend. This person/s should be aware of their appointment, and should have given their permission and full agreement.
Yes, this can be done by either destroying the Will or by making a new Will.
You should review your Will at least every five years. A review of your Will should be made sooner if your personal circumstances change - for example: if there are additions to your family; or deaths in your family; or financial changes that affect your Inheritance Tax liability.
There is no legal requirement determining where a Will should be stored, but you should inform your executor(s) (the person(s) you’ve chosen to deal with your Will) where it is. We will assist you to store your Will at The Probate Service, which is part of HM Courts & Tribunals Service. It is not advisable to keep a Will in a safety deposit box because after your death your executor(s) will not be able to open the box without obtaining a Court Order.
A Will becomes invalid if you marry or get divorced. In the event of marriage your Will becomes invalid unless there is a clause in place stating otherwise - for example, the Will is made just before you are due to get married and this contemplation of marriage is mentioned in the Will. If you get divorced after making a Will, any provision for your ex-spouse shall be cancelled, unless the Will states otherwise. The Will would be read as if your ex-spouse has died before you.
It is therefore important to consider writing a new Will in the event of a change of marital status.
If you have not made sufficient provisions for your dependants who rely on you, or you have been unfair to your spouse or partner, the Court may alter your Will. Any reasons for omitting a person from a Will should be either referred to in the Will or in a letter which is referred to in the Will. The Court would take such a letter into consideration; however, it would not be bound by it.
A gift is 'free of tax' when any Inheritance Tax:
- is payable; and
- is to be paid out of your Residuary Estate and not to be deducted from the gift itself.
All gifts to charities are by law totally exempt of inheritance tax.
This can be done if you make provision for it in your Will. This list must not be attached to the Will.
Your Will must be signed in the presence of 2 independent witnesses who are:
- over 18;
- have full mental capacity; and
- are not be blind or illiterate.
Beneficiaries or their spouses cannot witness a Will as any gift to them would subsequently fail.
A mirror Will is prepared when a couple want to make almost identical Wills; for example leaving everything to each other respectively and thereafter to the children, or where there are no children, to a named beneficiary. They must be individual Wills and act as separate legal documents, despite having similar content.
When someone dies without a Will, they are said to have died intestate. In cases like this, the Rules of Intestacy 1925 apply. These rules will determine the administration and beneficiaries of the estate.
Executors are responsible for dealing with your estate in accordance with your instructions. They will collect in your assets, pay all your debts including any inheritance tax, deal with any specific legacies that you have left, and then distribute the remainder of your estate in accordance with your wishes.
You can have as many executors as you like, but the Law only allows a maximum of four to act at the same time.
Yes, provided the Will contains the appropriate wording. However, executors and beneficiaries, or the spouses of executors and beneficiaries, must not be a witness at the signing of the Will, as gifts to witnesses or their spouses will not be allowed to stand, except for exceptional cases.
A living Will provides the opportunity to document your wishes with respect to end of life medical treatment in a form that is accepted by both the British Medical Association and Royal College of Nurses.
If you wish to move home after placing the house into a Family Trust, you can do so. The Trustees would need sign the paperwork, but there are no restrictions on you. Any surplus cash is still protected by the Trust and will simply be added to any other savings, and invested by the Trustees. A normal conveyance fee would apply.
An LPA is a completely separate document to the Will. It is possible to have a LPA written without a Will, although this is rare.
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