Wills & Probate Department

This section of our website has been designed to provide an outline of the issues and benefits of making a Will, and to high light potential problems which can arise when your will is not up-to-date.

It is intended to provide general advice only, and is no substitute for discussing your individual circumstances with one of our specialists to obtain more specific guidance.

Why Make A Will?

• To dispose of your assets as you wish
  
  
• To choose your own Executors
  
  
• To plan for any tax consequences
  
  
• To avoid family disputes
  
  
• To make gifts to family, friends or charities
  
  
• To avoid the operation of Intestacy Rules, which could pass property
  to people you would not wish to benefit
  
  
• To make specific provision for funeral arrangements

In simple terms, when you make a will you are making your wishes clear regarding the distribution of your assets. Your Will is an important legal document setting out how you want your assets to be distributed after your death. It also names the people you want to carry out your instructions (your Executors).

If you die without making a will and you are unmarried and have no spouse or children, then everything is divided equally between surviving relatives. Only a spouse or blood relatives (or adopted persons) can benefit under the latest rules. Where there are no surviving relatives the entire estate goes to the Crown.

Preparing to see a Solicitor

It is important that you have a clear idea of the extent of your assets and those to whom you wish to leave them. We suggest that you use the following check list:-

• List the main assets and their estimated value
  
  
• Identify property held jointly with somebody else
  
  
• Identify those of your family or other dependants for whom you wish to make financial provision
  
  
• Decide who you want to carry out your wishes after your death and, check to ensure with them that they are willing to undertake this task and ensure you have their full names and correct address
  
  
• Identify any person or organisation to whom you wish to make a specific gift
  
  
• Decide what you want to happen to the remainder of your assets once your debts, funeral expenses and legacies have been paid

Points to be Aware of

Family and Dependants

The Inheritance (Provision for Family and Dependants) Act 1975 gives certain relatives and any person who has depended financially on the deceased's estate a right to make an application to the courts if reasonable financial provision has not been made for them.

Home for Spouse

The effect of the Intestacy Rules may be to leave your spouse homeless. Careful consideration should be given to providing a home for your surviving spouse in your Will, especially if the house is owned in your name alone.

Unmarried Partners

No provision is made in the Intestacy Rules for unmarried partners in the event that the property is not jointly owned. Accordingly it is essential to make a Will if you wish your partner to benefit. Since 1st January 1996 a partner can make a claim to the court for reasonable provision as if they were a husband or wife (see above) if no such provision has been made.

Children

Money or property given to children under the age of 18 will be held on trust for them. You can specify that the trust will continue beyond the age of 18, say to 21 and you can provide in your will that your Executors / trustees can advance money to your children for certain purposes, e.g. education, before they reach the relevant age.

Review

Both the law and your circumstances will change over time. You should review your will regularly to ensure that it is still relevant and accurately expresses your wishes.

Choice of Executors and their Role

When you make a Will you appoint between one and four Executors.

If children under the age of 18 are likely to inherit under the terms of your will, then you will need to appoint a minimum of two Executors.

After your death, it is the duty of your Executors to deal with the administration of your estate.

It is usual for a spouse, close relative or family friend to be appointed as an executor, either alone or jointly with another person, but you should consider the following factors:-

• Grief
  
  
• Age
  
  
• Ability to organise
  
  
• Confidence and experience
  
  
• Willingness
  

It is a common belief that an Executor cannot benefit under the terms of a Will. This is not that case. An executor can receive whatever benefit you choose to leave. What is true, however, is that a person receiving a benefit under the will may be deprived of that benefit if they witness your signature.

If you anticipate any difficulty with managing your assets or would prefer professional assistance, then we recommend that you appoint a solicitor to be an executor.

The Role

After your death your Executors have a number of responsibilities and duties. Examples are listed here:-

Arranging the funeral (although more often than not the family attends to this even if they are not Executors).

Ascertaining your assets and outstanding liabilities.

Completing your final tax return.

Depending on the type and size of your estate it may be necessary for your Executors to obtain a "GRANT OF PROBATE" and to pay Inheritance tax within certain limits.

Arranging the sale of your property and it's contents (if appropriate).

Distributing your estate to your beneficiaries in accordance with the terms of your will.

If any beneficiary is under the age of 18 it may be necessary for the Executors to be involved in setting up trusts.

Some of these tasks may be complicated and your Executors may need to seek the help of a solicitor to ensure that the administration of your estate is dealt with efficiently and in accordance with the requirements of the law.

Changing or Cancelling Your Will

Codicils

You can add something to a Will that has already been signed and witnessed by signing a Codicil, but this should only be used for minor changes.

To avoid confusion and possible problems arising after your death, a new Will should be drawn up for any major changes.

Marriage

If you marry, or re-marry, any existing Will automatically becomes invalid, unless it was stated in the will that you intended to marry and wished the Will to remain in effect after your marriage.

Divorce

Anyone unfortunate enough to be contemplating divorce or separation should immediately seek advice about making a new Will.

A decree Absolute in divorce proceedings does not cancel a Will, but any gift in that will to the former spouse, or the appointment of a former spouse as an executor, does not take effect. The Will remains in force and operates as if the former spouse had died (unless a contrary intention is expressed in the will).
However, until the divorce is final all the provisions of the will remain valid and unaltered.

Inheritance Tax

Inheritance Tax is generally charged on death when the deceased's assets exceed £242,000 (2001/2002).

Under current legislation, any gifts that have been made within 7 years immediately prior to death must also be added to the assets transferring on death, subject to a special sliding scale relief.

Certain exemptions are available, primarily gifts to your spouse or to charities.

There is no Inheritance Tax payable between husband and wife, but if you are married and the value of your estate is likely to be high, it may be advisable to use up the tax-free amount of £242,000 on the first death rather than to give all the assets to the spouse and leave the potential for a high tax charge when the second spouse dies.

Lifetime gifts are potentially exempt from Inheritance Tax and if the person making the gift survives for 7 years then no tax will be due. Again, some exemptions and reliefs are available.

Living Wills

If your health deteriorates to the stage that you cannot reasonably hope to recover, a Living Will can prevent unnecessary suffering.

A Living Will instructs your doctor to withhold or withdraw treatment in a particular set of circumstances including if you become:-

• Terminally ill
  
  
• Permanently unconscious
  
  
• Minimally conscious, but with irreversible brain damage which prevents you making decisions
  

A Living Will directs the doctor not to give any treatment to prolong or sustain life, and it also specifies that maximum pain relief should be given, even if it hastens death.

"Where would
Great Ormond Street Hospital
for Sick Children
be if J M Barrie had not made a will?"

If you require further information or would like to make an appointment to make a will please call free on

0800 0188 2067

or email us at

wills@turner-coulston.co.uk