Wills and Probate - FAQs

1. What is a Will?

A Will is a list of instructions telling your Executors what to do with your property when you die.

2. What can I do in my Will?

Most people choose to keep their Will as simple as possible and so gift all their estate (as one lump - called the "residue of my estate") rather than try to break it down into individual amounts or items. However, you may, if you wish, gift:

a) property - either as an outright gift or to give someone the use (only) of it for a period, say, until they remarry with the instructions that once they have remarried the house is to be sold and the proceeds shared among other members of your family nominated by you

b) all your house contents (chattels) or individual items

c) specific sums of cash - with or without an inflation adjustment

d) specific investments e.g. shares, peps, tessas

e) businesses - either an outright gift or the first option to buy it from your estate

f) residue ie what's left after all other gifts have been made and all your outstanding liabilities have been settled, including your testamentary expenses which are funeral costs, probate fees, Inheritance Tax (death duties if total estate worth more than £325,000 as at April 2009)

You can say exactly what you want to happen to your property. You can make "thank you" gifts of money. You can make gifts of personal belongings that are special to you and the person to whom they are given. You can make gifts to charities that are free of Inheritance Tax (death duties). You can appoint Guardians to look after your young children. You can choose who you want to be your Executors and Trustees. Fundamentally, your Will is a record of your instructions on how you want your estate to be distributed and can, if you wish, include your directions regarding your funeral.

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3. Can a letter be as legal as a Will?

A letter could be a legal Will. However, we would always advise that you have your Will drawn up properly. A letter would need to be signed, dated and witnessed in accordance with certain legal rules and would be invalid if otherwise. In addition, it could be contested if the wording of the Will is ambiguous. It is always better to have your Will professionally written. Solicitors and Barristers make a lot of money each year from disgruntled family members defending or attacking DIY Wills that were badly drawn up.

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4. What happens if I don't make a Will?

If your estate is worth more than £5,000 ( England & Wales ) or £17,000 ( Scotland ) then your next of kin must apply to the courts for the power to deal with your estate - they must apply for 'letters of administration'. If you had a Will then your executors would apply to the Probate Registry office for a 'grant of probate'.

When there is no Will the 'rules of intestacy' (ie the government) states who should get what amount depending on the total net value of your estate.

See Appendix - Rules of Intestacy for: England and Wales | Scotland

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5. What is included in my estate?

Your estate is 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.

Your estate doesn't include money in a joint account or property or shares owned jointly. Also not included, life insurance policies in joint names and those where you have already nominated who the beneficiary should be on your death.

From your employment, your death in service benefit and pension is also not normally included as these are held in trust for whomever you may have already nominated. It is, however, sometimes recommended by trustees that you mention in your will who you would like to benefit - although trustees are not legally bound by your expressed wishes in your Will.

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6. Can I make provision for my children (and future children)?

Yes. 'Children', however, by legal definition, are your natural children, including illegitimate, plus any that you have legally adopted. Stepchildren are not included in this definition so, if you wish them to be provided for, they Will need to be mentioned by name.

If you have children at the moment and wish us to include others not yet born then we can include those words..." and any other children of mine not yet born"

If you don't have any children at present but wish to include the possibility then again we can do that, however, it is wise to make further provision in case at the time of your death you don't have any children.

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7. Should I appoint Guardians?

If you have children under the age of 18 you should appoint a Guardian or Guardians. They could be appointed to act on your death or only once you and your partner have both passed away.

If you and your partner are unmarried then the mother of the children will need to appoint the father as her first choice of guardian as, under current law, he does not have any automatic rights to the children if she passes away first.

If you have children over 18 while one or more are under 18 then you can appoint an older child as guardian of the younger.

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8. Can I change my Will?

Yes, but only by writing a new Will or signing a document called a Codicil. A Codicil (like a Will) must also be prepared, signed and executed in a particular way. You do not need to rewrite your Will or have a Codicil if you or any person named in your Will changes their address.

Will Drafters recommend that when changes are necessary you rewrite your Will.

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9. Can I cancel my Will?

You can cancel your Will by making a new Will, or simply by tearing it up and burning it.

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10. Does marriage or divorce affect my Will?

In England and Wales, your Will is cancelled automatically if you get married after you have signed it unless the Will contained a sentence stating otherwise, for example if it had been drawn up just prior to you getting married. If you get divorced after you have made it, any gifts in favour of your wife or husband will be cancelled (unless the Will states otherwise) and therefore your Will would be read as if they had already died. It is essential that you consider writing a new Will if there are major changes to your circumstances. If in doubt, please ask. We'll be only too happy to advise.

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11. Can my Will be changed after my death?

Normally no. However a Deed of Variation may be exercised within two years of the Testator's death to alter the terms of a Will with the agreement of all the residuary beneficiaries. There may also be instances where the court could make a judgement. See the next question for more details.

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12. What happens if I leave someone out of my Will?

If you have not properly provided for any of your dependants who are unable to maintain themselves, or if you have not been fair to your wife or husband (or even an ex-wife or ex-husband who has not remarried), the Court can alter your Will. Your reasons for not having provided for someone should be given in your Will or in a separate letter, which can be referred to in your Will. The Court will consider these reasons but they will not bind them. For Scotland , children and spouses have prior rights and legal rights - for details click here .

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13. What are Executors?

Executors are the people appointed in your Will to carry out your Will instructions.

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14. What are Trustees?

Trustees are the people appointed in your Will to look after your property until for example, a child is old enough to inherit or where there is a life interest (see "What does it mean if I give someone a 'life interest' in my Estate?). Executors and Trustees are usually the same people.

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15. What do Executors do?

Executors bring together all your assets, pay your debts and any gifts of money, transfer any gifts or personal belongings and deal with the remainder - your Residuary Estate - in accordance with your Will.

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16. How many Executors can I appoint?

You can appoint up to four Executors, but you should appoint at least two. You can appoint alternative Executors in case when you die your first choice decides not to take the position or dies before you.

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17. Whom should I appoint as Executors?

Any adult person can be appointed as an Executor. One of them could be the person who is going to receive the biggest share of your estate, such as your spouse or your partner. Relatives and close family friends can be Executors. If you appoint a professional Trustee do remember that they will charge for their service. See next section "Do Executors get paid?"

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18. Do Executors get paid?

Where individuals (family or friends) are appointed they are not normally paid although you may give them modest cash gifts in your Will as a "thank you", if you wish. They are usually allowed to reclaim any expenses incurred by them in the administration of an estate, including Probate fees.

When professional executors are appointed (individual people or organisations), clauses are usually included in a Will to provide that they be paid their normal fees. They would not act otherwise.

The total charge for executor work carried out by solicitors or banks will not be known until all the work is completed. They will invoice their charges based on the total time taken.

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19. What happens to property in joint names?

People who are "co-owners" of property hold it either as "joint-tenants" or as "tenants-in-common". Husbands and wives are usually, but not always, joint-tenants. This means that when one of them dies the other one automatically becomes the owner of the whole of the property. It also means that a joint-tenant cannot make a gift in a Will of his or her share of the property. Partners who have been married before often prefer to own the property as tenants-in-common. This means that when one of them dies his or her interest in the property forms part of his or her Estate. This then means that they can separately make a gift in their Will of their share of the property, perhaps to their own children from a previous marriage.

A joint-tenancy can easily be converted into a tenancy-in-common by one of the co-owners giving a written notice to the other saying that the joint tenancy has been "severed" and that they are now tenants-in-common. Will Drafters can draw up this notice for you. Such a notice should be placed with the deeds of the property. If you don't know whether you are joint-tenants or tenants-in-common, you should consult the solicitor who acted for you on the purchase of your property.

These principles also apply to other jointly owned assets such as bank and building society accounts and other investments.

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20. What about Inheritance Tax?

If the value of your Estate after payment of your debts and any gifts to your husband or wife or to charity is worth more than £325,000 (from 6 April 2009), then Inheritance Tax will be payable at 40% on the value over this amount. For more information on Inheritance Tax and how to avoid the taxman - see Appendix D .

Although the information provided is of a general nature if you wish to receive individual advice then we suggest you seek the advice of an independent financial adviser. Will Drafters will be happy to refer you to one if you wish.

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21. What is a gift made "free of tax"?

A gift is free of tax when any Inheritance Tax, if it is payable, is to be paid out of your Residuary Estate and not to be deducted from the gift itself. In Wills drawn up by Will Drafters all gifts, except the Residue, are free of tax unless you instruct us otherwise. All gifts to charities are by law totally exempt of Inheritance Tax.

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22. Can I leave with my Will a hand-written list of gifts of my personal belongings?

You can do this if you have said so in your Will. You can state in your Will that your executor is to distribute your personal belongings according to a separate list that you will keep with your Will (although you mustn't attach the list to your Will). You can then make changes to your "gift list" at any time thereafter without the need to change your Will.

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23. What does it mean if I give someone a "life interest" in my Estate?

If your responsibilities are "divided", e.g. you wish to ensure that your partner is adequately provided for but feel you have a duty towards, say, children from an earlier marriage, then you may wish to consider giving your partner a "life interest" in your Estate. This restricts the partner's inheritance to the income (interest earned) on your capital or specified sum. If you own your home outright or own a share as tenants-in-common then you may also wish to give your partner the right to live in your home rent free until they die, remarry or for only, say, a specified period. Once they die or after the specified event has taken place then your home and/or the capital sum will pass to whoever you have specified in your Will, such as your children.

You should, however, bear in mind that unless your Estate is fairly large, the income from it may be insufficient to support your partner. A gift of a life interest also causes the duties of the Executors and Trustees to be more onerous.

When considering a gift of a life interest, it is very important to remember that the recipient does not own the property or capital sum and therefore cannot dispose of it in his or her own Will. It is also important to remember that the prime duty of your appointed Trustees is to keep a fair balance between income for the person getting a life interest and capital growth for those who will be ultimately entitled to your Residuary Estate.

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24. What's the best way to provide for my disabled child?

Although not exclusively, a Discretionary Trust is often used by families who have a relative with a learning disability. Discretionary trusts are a way of putting in place financial arrangements to help support that relative. These trusts are particularly suitable for disabled people.

A Discretionary Trust can also provide a way of owning property. Sometimes families decide that in the long-term they would like to be able to set up arrangements that allow their relative to continue to live at home with the necessary support.

In summary, Discretionary Trusts are used:

• As a way of paying for the things the statutory services may not be able to give, for example a holiday, a new coat or even additional care
• As a means of owning, managing and maintaining a property
• As a way of arranging an inheritance
• So there is a way of managing money or other assets
• To avoid benefits and care funding being stopped

Income Support - and possibly other benefits such as Housing Benefit - stops being paid if a person has more than a certain amount of money. Benefits are withdrawn or reduced until savings fall below the relevant level for the benefit. If Social Services fund a residential care place or care package they may also begin to charge for the care service or stop funding it. A Discretionary Trust can avoid this.

Once assets are put into the Trust they belong to the Trust not the person intended to benefit. He or she may get gifts or even payments from the Trust but they cannot be said to have any assets themselves. Trusts hold and invest assets. This can include the family home. It may provide a means of managing and maintaining a property. This is particularly useful when the person lacks legal capacity i.e. sufficient understanding to enter into a contract. Trusts are normally set up as part of drawing up a Will.

Trustees operate trusts. These can be other family members, friends or professionals. The key points about a Discretionary Trust are:

• Trustees have discretion as to how the assets are used - the trustees are free to make all the decisions
• The person to benefit from the Trust must not have a right to the income or capital
• The intended beneficiary must not be the only person named in the Trust i.e. must not be the 'sole' beneficiary

Without these features the Discretionary Trust is not properly constituted and the person may be treated as though they own the house or have the money.

Conclusion
If you want to make some financial provision for a close relative who is dependent on welfare benefits and/or supported by Social Services do not say in your Will, "I hereby leave my worldly goods to x". This will not provide a long-term nest egg. Consider instead including in your Will a Discretionary Trust - ask your Will Adviser for further details.

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25. How can I avoid the council selling my home if I'm taken into care?

If a person is taken in to care then, under the Community Care Act 1990, the local council have the right by law to seize their home, put it up for sale and use the proceeds to support their long-term care costs. Obviously, if this happened then it might mean that when they eventually die there could be very little of their estate left for their surviving family.

How can you avoid this happening?
It is illegal to deliberately transfer your own property to relatives or trusts if your prime motive is to avoid paying long-term care costs. However, it is not illegal for you and your partner to each make a provision in a Will, that upon the first death, the deceased's half-share of the family assets and/or home, is placed in trust for their children or other beneficiaries, instead of passing direct to the surviving partner.

The Protective Property Trust Will has been specially designed for this purpose. It keeps the assets and/or share of the home owned by the deceased partner away from the council's reach while at the same time allowing the surviving partner to continue benefiting from the assets and/or share of the home within the trust. On their death the assets and/or share of the home owned by the trust together with whatever is left of the assets of the second partner can be given to the surviving family.

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26. Can I choose anyone to witness me signing my Will?

No. They must not be a beneficiary in your Will nor married to a beneficiary.

In England , Wales and Northern Ireland : They must be over 18 years of age, of sound mind and not blind. You will need two witnesses who must both be present when you sign and date your Will. They don't need to see the contents of your Will, only you signing it.

In Scotland : They must be over 16 years of age, of sound mind and not blind. You will only need one witness who must see you sign and date your Will. They don't need to see the contents of your Will, only you signing it.

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27. What should I do with my Will after I have signed it?

You should leave it in a safe place and ensure your executors and/or family know where it is being kept. Your Executors will need the original Will, not a copy.

Dying without leaving a Will could mean...

In the absence of a signed Will the government dictates who gets what of your estate, depending on your domestic circumstances:


Married with Children (separated people are treated under these rules as still being married)

1) Your spouse gets:-

a) car and house contents, plus
b) first £250,000 of your estate, plus
c) 6% interest on half of any surplus (only interest, your spouse cannot touch the capital)

2) Your children (stepchildren get nothing) get:-

a) half of any excess over £250,000 outright, plus
b) the other half of the excess when your spouse has also died

Married with No Children but with Parents and/or Brothers and Sisters

1) Your spouse gets:-

a) car and house contents, plus
b) first £450,000 of your estate, plus
c) half of any excess over £450,000 outright
2) Your parents or (if none alive) your brothers and sisters get:-

a) Balance ie half of any excess over £450,000 outright

Married with children and No Parents or Brothers and Sisters

Your spouse gets everything

Single, Widowed or Divorced (but not separated)

Everything goes to your children (if any), otherwise to your parents (if alive), otherwise to your brothers and sisters (or their children), otherwise your grandparents (if alive), otherwise your uncles and aunts (or their children), otherwise to the government!

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