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Wills FAQs

How are trusts in wills affected by tax and inheritance tax?
The main tax that affects wills, triggered by the death of the person, is Inheritance Tax. When someone dies the deceased's personal representative (PR) or executor will make sure that a personal Tax Return is completed from the start of the tax year to the date of the deceased's death. From the date of the deceased's death to the end of the tax year the PR will have to account for tax and report to the beneficiaries on the tax that he or she has deducted. Each year the PR will have to submit a Trust and Estate Tax Return to HM Revenue & Customs. But in the year in which the estate is wound up and all the assets have been distributed, the PR will only have to account for the tax on the income up to the date of distribution. In practice, if probate value is less than £2.5 million and the total tax due by the PR is less than £10,000, HM Revenue & Customs will accept a single computation and one-off payment.
What is a trust?
A trust is brought into existence when a person (called the 'settlor') transfers some of his assets to trustees (who become the legal owners) for the benefit of third parties, called 'beneficiaries' (the beneficial owners). A trust is a legal entity in itself. Another word for a trust is a settlement. Sometimes trusts are created under a will and sometimes they are created during the lifetime of the settlor. Sometimes trusts are created to save tax, sometimes to protect assets; there are many and various reasons for setting up a trust.
What is probate?
Probate is a process that gives the people carrying out your will the right to deal with your assets and property. It acts as proof that your executors have the authority they need to administer your estate.
My partner has already made a will. Should I be making a will too?
Yes. Both you and your partner should make a will, even if most of your property is in one person's name. Making a will allows you to name your spouse as the person who will benefit from your property if you die, and in your will you can decide where your property should go if your spouse dies before you. If you are not married but are cohabiting (living together as an unmarried couple) it is even more crucial that you both make a will. There is no automatic entitlement that your partner will receive any of your money or possessions if you have not made a will.
I’ve already made a will but I want to change my will. Should I just add the changes to the will I've made?
No. You shouldn't change your will by altering a will that you've already made. The best way to update your will is to simply make a new will, and include the fact that all previous versions of your will are cancelled. It's actually a good idea to destroy all the copies of your old will, just to make sure, once you have completed making your new will.
I don't know anyone who I can ask to be the executor of my will. Can I do it myself?
No. The executor of your will is the person you wish to handle your estate (property, money, investments etc) after your death. So it's impossible for you to act as your own executor for your own will.
Can an executor be a beneficiary of my will?
Yes, and you can have up to four executors. Remember, though, that whoever witnesses your will can't be a beneficiary of it.
Can my executor witness my will?
An executor (or a spouse of an executor) or a professional adviser, who may wish to charge for his or her services, can safely act as a witness unless he or she is also a beneficiary, in which case another witness must be found.
How many witnesses do I need for my will?
In England & Wales, you need two witnesses over the age of 18 to witness your signature and to sign your will; in Scotland, you need only one witness over the age of 16. The spouse of a testator (person making a will) cannot witness a will, nor can beneficiaries of the will (or their spouses).
What happens if I die without making a will?
If you die without making a will, or if your will is invalid, you die intestate. The management of your estate, which is your house (if you have one) and any other assets minus all your debts, is then done by administrators (called 'executors-dative' in Scotland) appointed by the court, who will probably be your close relatives. In some cases, your possessions may go to the Crown, but generally the bulk will go to your spouse or if you don't have one, your children. If you have no children, other blood relatives are next in line. One in two people in the UK currently dies without making a will and if you haven't done so already, it's a really good idea to prepare one. In Scotland, the rules of intestacy allow your spouse and dependants to claim your property and money regardless of your wishes. If no surviving relatives can be found, your entire estate goes to the Crown.
What should I include when writing my will?
Obviously, you should include exactly who will inherit your property, and what in particular each person will inherit. Just as importantly, you should choose the person who will be responsible for carrying out your wishes and who will act as a guardian to your children if they have no other parent. You can also use your will to say whether you would prefer burial or cremation and if you would like to be an organ donor. Lastly, you might be able use it to reduce the amount of tax to be paid by people inheriting from you.
How long is a will valid for?
A will is valid until revoked, which can happen in a number of ways. By destroying it, combined with your intention to cancel it. Physically destroying your will usually revokes it. Accidental destruction of a will doesn't cancel it but there might be difficulty in proving that it applies. A will can be destroyed by another person, but it must be at the request of the testator. A will must be physically destroyed - simply crossing out the will or writing 'revoked' across may not be sufficient. Rubbing out or cutting off the signature of the testator or witnesses may be enough to revoke the will. If part of a will is destroyed, only that part of the will is revoked. If an entire will is to be revoked, any codicils attached to it may have to be revoked separately. If a will is known to have been kept in your possession, but can't be found when you die, it will be presumed that it was destroyed by you unless there is proof that that wasn't what you intended. By making a new will that revokes your old will. To make sure of this, the will forms in our books and kits contain the phrase, 'I revoke all previous wills and codicils'.

This gives you the opportunity to reconsider all of the terms of the old will and make all the changes at one time rather than separately using codicils. Be sure your new will complies with all the requirements necessary to make a valid will. If you don't destroy your old will, it might come back into force if your new one is revoked. In England and Wales (but not in Scotland) by marriage unless your will states that it is made with your forthcoming marriage in mind. Your will is automatically revoked by marriage unless: you were planning to marry when your will was made; your will names the specific person you married; you state that you want the will to be effective during your marriage to that person. In Scotland by the birth of a child if the will doesn't provide for the child and you haven't shown your intention that the will not be cancelled. Except for the situations just mentioned, a will remains valid for an unlimited period of time. Note that divorce doesn't automatically revoke your will.
Who can make a will?
Every adult can and should make a will. You need to be of legal age, which is 18 in England and Wales and 12 in Scotland. You must also be over the age of 18 in Northern Ireland, although there are exceptions if you are under 18 and married or you have been married. You must also be of sound mind - understanding what you are giving away, how you are giving it away, and who you are giving it to. If you have a history of mental disorder or if an illness may be affecting your judgment in any way, consult a qualified doctor before writing your will. This helps establish your competence and will be useful should your will be contested later on the grounds of mental incapacity.
Will I automatically inherit my partner's estate when they die?
No, so you should both be making a will immediately. If your partner dies without making a will their estate will be distributed among their blood relatives in accordance with the rules of intestacy. If you are not married or in a civil partnership (a.k.a. cohabiting) you may well not be entitled to any of their estate.
My partner and I are cohabiting. We are an unmarried couple who are living together. Should we make a will including each other?
Yes, assuming you want your partner to inherit from you. It's very important for unmarried partners who are cohabiting to make wills, as without them, the surviving partner may receive nothing when the estate is distributed.
How do solicitors charge?
There are various methods of funding a legal case used by solicitors: Charging by the hour: This is the most common method of charging. Hourly rates vary from high street firms where you can expect to pay somewhere between £80 to £120 an hour for advice on private and commercial work, all the way through to £350 an hour for a senior partner in a City firm for extremely expert advice on complex points of commercial law. Fixed fees: This form of payment has the obvious appeal of limiting your liability for legal costs and, after the hourly rate, it's the next most common way of charging. The obvious downside is that if your case concludes quickly, then you will end up paying more than you may have on the hourly rate basis. No win, no fee: 'No win, no fee' is a deceptively simple expression. On one level - and as the name implies - solicitors are paid nothing for their work if they lose, but it also covers agreements whereby solicitors can charge more if they are successful. Legal Aid/the Community Legal Service: To be eligible for Legal Aid, you have to show that you cannot pay for your case (i.e. that you are financially eligible) and that you have a sufficiently strong case that you are likely to win. Even if you're working, own your home and have savings, you may still qualify. However, you may well have to pay a contribution towards the cost of taking your case to court.
Will a solicitor offer a free first interview?
Remember that in many cases you can use the first meeting to your advantage in order to get free advice from the solicitor. Usually a solicitor will be happy to provide you with unpaid legal guidance at the start of a case, should you so request it, in order to identify whether your case has merits and how it should best be pursued. It's also an opportunity for you to size up your lawyer as well. Many lawyers are more approachable and less stuffy than their reputation suggests. A willingness to have a chat about your case will give you a good measure of the kind of lawyer you are dealing with. You will find that many firms advertise a free first meeting in their promotional material and on their websites.
How can I find out whether a solicitor is experienced?
Check to see if your solicitor is a member of a Quality Assured panel, set up by the Law Society to demonstrate specialist knowledge to prospective clients. The Law Society runs panels in family, immigration, personal injury law, clinical negligence, Children Act proceedings, mental health tribunals, family mediation and planning law. You can find a list of members on its website at www.lawsociety.org.uk. Check with professional groups such as the Employment Lawyers Association, the Immigration Law Practitioners' Association and the Solicitors Family Law Association. The Law Society runs its own Quality Mark called 'Lexcel', which is another indicator of a good firm. Firms that display the Lexcel logo have been independently judged to meet the Society's own practice management standards. The Community Legal Service (CLS) has developed its own 'Quality Mark', another accreditation scheme, which is awarded only to organisations that pass regular quality checks. Providers who have achieved the Quality Mark will display the CLS logo in their offices.
Can a couple convert to a tenancy in common and, as a result, leave their share of their joint property to someone other than their spouse (e.g. their children)?
Yes, you can convert to a tenancy in common, but you will need to see a solicitor to do this. Once you have converted to a tenancy in common, you can leave your share of the property to whomever you want in your Will.
We have a property in France. Do we need a different type of Will or does this not matter?
Our DIY Will Kit is suitable for you, but it's possible that your French property may not be included in your Will. We recommend that you take international legal advice about your foreign property.
How do I change my Will?
To change your Will, you must write a new valid Will.
What are executors?
Executors are the people you appoint in your Will to look after the administration of your estate after your death and to sort everything out. When choosing an executor, you should appoint someone you trust to look after your affairs. They can be family, friends or professional people (e.g. solicitors). Executors must be over 18 years old.
What type of gift can I make in my Will?
You can make a pecuniary gift, a specific gift or a residuary gift. A pecuniary gift is a gift of money (e.g. ' I give £1,000 to X'). A specific gift is a gift of a particular item (e.g. 'I give my gold necklace with the ruby inset to Y') and a residuary gift is a gift of the remainder of your estate after the payment of debts, testamentary and funeral expenses, all duties and taxes and pecuniary and specific gifts.
Can gifts in my Will fail?
If a gift fails for some reason (e.g. you sold the gift before you died or the person you gave the gift to has died before you), then the gift would usually pass into your ‘residuary estate’ unless you have made substitution provisions in your Will.
What is a ‘residuary estate’?
Once you have made gifts of specific property and/or sums of money to particular people in your Will, the items or money that you don’t specifically allocate will form the ‘residue’ of your estate and you must decide who is to receive this.
What are trustees?
Trustees are usually the same people as your executors, but they are the people/organisation you appoint to look after the assets in the trust for the benefit of the beneficiaries.
Can the witnesses to my Will be husband and wife?
In England & Wales you need two witnesses (in Scotland, only one is required) who should be over 18 (or 16 in Scotland) and preferably neither very old nor hard to trace. There is no reason why the witnesses should not be married to each other. However, it is vital that the witnesses to your Will are neither beneficiaries under the Will nor the spouses of beneficiaries. If a beneficiary or his or her spouse does witness your Will, the beneficiary will lose the benefit of his or her gift, but the Will remains valid.
Is one witness signature enough?
In England, Wales and Northern Ireland one witness is not enough. You need to have two witnesses who are over 18. In Scotland, only one witness who should be over 16 is needed.
Do witnesses need to know the content of the Will?
The witnesses do not need to know the content of the Will.
Can I appoint my spouse as executor and beneficiary?
Yes, you can appoint your spouse as executor and beneficiary.


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