Wills, Trusts, Probate and Estate Administration

What do I need to think about before writing a Will?

1. The Executors. These are the people who will call in the assets, pay off the debts and distribute the Estate in accordance with your instructions. Your Executors should be over the age of 18 and they can be beneficiaries as well as Executors. It is helpful for your Executors to know of your finances or alternatively to be made aware of where documents are held detailing same. You should tell your Executors where your Will is being stored.
2. Assets – both solely and jointly owned – including property, as well as those held in Trust such as Life Insurance policies, pension benefits, death in service benefits.
3. Guardians – if you have minor children, who would you want to look after them if there is no one with parental responsibility. It can also be useful to put a letter for your Guardians for your views on education etc.
4. Legacies you wish to make – be these specific items such as jewellery, paintings, property and even animals – it is important to people that they make provisions for their furry friends.
5. Debts and Liabilities
6. How the remainder of your estate is to be divided and to who i.e. once all of the above has been dealt with, debts and executorship expenses have been paid You should think about family, charities as well as if anyone is financially dependent on you.
7. It is helpful to provide a brief background as to your family history. If people are not being included in your Will it is important to consider them and why they are being left out.

How do I make changes to my Will?

If the changes are relatively straightforward you can prepare a document called a Codicil which can revoke clauses in your current Will and replace them with new ones. Alternatively, if Solicitors have drafted your original Will it might be recommended that you have a completely fresh Will prepared as this is sometimes just as easy and can be more diplomatic. If the changes are significant a new Will should be prepared.

Life Events that should trigger an update

• Marriage or Civil Partnership (unless you made a Will in contemplation of marriage or civil partnership)

• Divorce or separation

• Death of a beneficiary

• Bankruptcy, or other significant change in circumstances of a beneficiary (e.g. going through matrimonial problems, or becoming disabled or vulnerable)

• The purchase of overseas assets (in which case a foreign Will may be necessary)

• If a Budget introduces inheritance tax changes which will affect your tax liability

• Further lifetime gifts to your children or to anyone else for whom you have a parental obligation – these gifts may have to be taken into account when your executors administer your estate unless you express a contrary intention in your Will.

Who is entitled to view a Will? Before/after Probate granted

Only the Executors named in the Will are entitled to read it after you have died. After Probate has been granted it becomes a public document and anyone can apply to the Registry for a copy of it.

Trust v Wills what’s the difference?

A Trust can be set up during your lifetime or upon death. A Will is only activated upon death.

A Trust can provide extended control over assets allowing for carefully thought-out conditions to be applied. A Will offers you a direct say on the distribution of your assets but does not provide extended control over how the beneficiaries might use them.

There are potentially tax mitigating factors to consider when looking at Trusts v Wills depending on your circumstances and your assets and so it is always advisable to take professional advice.

1. Choice: the majority of people appoint other family members as their attorneys - people who know you well and are more likely to respect your preferences and best interests.
2. Flexibility: unlike a deputyship, an LPA can assign a role to your attorney even without a loss of mental capacity. For example, they could be authorized to deal with your bank if you became physically unable to get to the branch for a while.
3. Control: an LPA can be planned in advance at your own pace, avoiding the last-minute urgency of the Court.
4. Cost: the appointment of deputies is likely to be significantly more expensive than drawing up an LPA. In some cases, two applications to the Court may be required, doubling the cost.
5. Speed: an LPA can be completed and registered in advance and is ready to use immediately in an unexpected situation, for example if you have a stroke. It can also be registered in advance with organizations such as banks. With a deputyship application, it is not uncommon for it to take 6 months or more to give the deputy authority to act.
6. Scope: A “health and welfare” deputy appointed by the Court of Protection cannot give or refuse consent to life-sustaining treatment for you, unlike an attorney appointed by LPA. If you were seriously ill, your wishes regarding life-sustaining treatment might not be respected.

Q1. Do I need a Lasting Power of Attorney?

This can be answered in the same way as we treat travel insurance. Hopefully you will not need a Lasting Power of Attorney but if you do, your attorneys will be relieved to see that you have it in place as it will save both time and money. A Lasting Power of Attorney (LPA) appoints people (known as Attorneys) to look after your affairs if for any reason you are unable to do so. There are two types of LPA. One allows your Attorneys to deal with your property and financial affairs and the other enables your Attorneys to make decision about your health and welfare. Please note that some nursing homes insist on future residents having LPAs so that they know someone can act if the resident has lost or loses the capacity to act for themselves. Please arrange an appointment to discuss this further with us.

Q2. Can I alter my Enduring Power of Attorney?

No. An Enduring Power of Attorney (EPA) is still valid but it cannot be altered. If you wish to change your attorney/s you need to make a lasting Power of Attorney. Please note that EPAs only cover your property and financial affairs. Therefore, it is worth considering making a Lasting Power to cover your welfare needs. Please arrange an appointment to discuss this further with us.

Q3. Can my Attorneys continue to pay invoices from my estate when I die?

The people you appoint to be your Attorneys under a Lasting Power of Attorney or Enduring Power of Attorney will cease to be your Attorney immediately upon death. The administration of your estate will be dealt with by the Executors that you appoint in your Will. If you are not sure of what you can and can’t do as an attorney, please arrange an appointment to discuss this further with us.

Q4. Is my Will valid even if I have separated from my spouse or civil partner?

Yes. A separation does not make your Will invalid. You should alter it as soon as possible (if you do not wish your spouse or partner to benefit). When you get divorced or your civil partnership has been dissolved, your Will will still be valid but read as if your ex-spouse or civil partner had pre-deceased you. Please arrange an appointment to discuss this further with us.

Q5 .Do I need to change my Will if I get married?

Your Will will be revoked upon marriage unless it has been made in anticipation of that marriage. Please arrange an appointment with us to discuss what your Will says or needs to say.

Q6. Can the beneficiaries in my Will also be my Executors?

Yes. However, your beneficiaries should not witness your Will. If you are not sure who can act as your witnesses, please arrange an appointment for us to advise you.

Q7. When do I have to pay inheritance tax?

The Nil Rate Band (NRB) is the basic allowance available to an individual before any inheritance tax becomes payable. The NRB is currently £325,000. The value is made up of gifts over and above the allowed allowances for the previous seven years before death and also the value of your estate when you pass away.

Q8. What is the Residence Nil Rate Band?

The Residence Nil Rate Band (RNRB) is an allowance available in addition to the Nil Rate Band and came into effect from April 2017. To apply the RNRB, your property must pass to your lineal descendants (children, grandchildren etc..). The allowance started at £100,000 for 2016 / 2017 and will increase by £25,000 each tax year until 2020 when it will be a maximum of £175,000. Together with the Nil Rate Band (currently £325,000), this will give an individual an allowance free from inheritance tax of up to £500,000, by 2020/2021.

Q9. How much is inheritance tax?

Inheritance Tax is charged at 40% for anything over the inheritance tax allowance.

Q10. Will you store my Will?

Yes. We will store your Wills free of charge. We also store deeds free of charge for existing clients.

Q11. Do common law wives and husbands really exist in law?

In short, no. The law does not automatically recognise couples who have lived together as if married or civil partners. This means that if you do not have a Will the intestacy rules do not distribute any part of your estate to your partner. There is an opportunity to make a claim under the Independent (Provision for Family and Dependants) Act 1975 if you have lived together for more than two years.