Wills and Probate: everything you need to know
When a loved one dies, there is often a lot to sort out. Beyond the practicalities of registering the death and arranging the funeral, there are important legal and financial ends to tie up and that is where we can help.
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We’re here to guide you through the process from beginning to end
The Grant of Representation* is the legal name for the document which will enable those responsible* to deal with the assets and liabilities of the estate.
*The Grant of Representation is also known as Probate if there is a Will, or Letters of Administration if there is no Will.
*Those responsible are known as Executors if there is a Will, or Administrators if there is no Will.
If you have been appointed as an Executor in the Will or are one of the closest members of family of the person who has died, you may need to take advice because dealing with the administration of the estate can be complex. You will need to find out about the value of the person’s possessions and make sure that any Inheritance Tax is paid to HM Revenue and Customs.
We specialise in pre and post death matters, including:
Making a Will
Do you want to decide how your estate should be distributed following your death and who should be responsible for administering your estate?
Would you like to include a legacy to a charity or a friend or loved one who would not inherit if you do not make a Will?
Contesting the distribution of an estate
Perhaps you have been financially dependent on someone who has died making no, or minimal provision, for you in their Will. Or perhaps you are not entitled to any of their estate as they died without a Will and you are not a close relative.
Perhaps your loved one’s circumstances changed significantly since their Will was made and they did not make a newer Will to reflect these changes.
Revising a Will
Was your Will made more than 7 years ago and does not take into account your changing circumstances and relationships?
Have you married or formed a civil partnership since your Will was made?
Have any of the appointed Executors or beneficiaries died?
Applying for a Grant of Representation
Do you need assistance with the administration of the estate of a loved one?
Distributing the Estate
Do you need assistance with collecting in the assets of a loved one, settling any debts and distributing them in accordance with either their Will or the rules of intestacy?
Would you like to vary the estate of a loved one in a tax efficient way?
Do you need to set up a Trust created in a Will or perhaps retire Trustees of an existing Trust?
Court of Protection
Has a loved one lost the capacity to deal with their affairs and these now need to be dealt with?
Lasting Power of Attorney
Would you like to decide who should be responsible for managing your affairs while you are alive, should you reach a point where you are no longer able to manage them yourself?
Wills and Tax Planning
If you want to decide how your estate should be distributed after you have died, you should make a Will. Where someone dies without having made a valid Will, their assets may not necessarily be distributed in the way they would have wanted or in a tax efficient manner.
Frequently Asked Questions
Who should make a Will?
Everyone with any assets or children for whom they wish to appoint a testamentary guardian.
Do I really need to make a Will, won’t my partner or children get everything anyway?
Yes you do need to make a Will if you want to decide how your estate is distributed. If you are not married to or in a civil partnership with your partner, your partner has no automatic rights of inheritance under the intestacy rules (see below). If you are single, widowed or divorced and have children, your estate will go to your children but it will go to them equally and this may not be your wish. If you are married or in a civil partnership and have children and your estate exceeds a certain amount, your entire estate will not pass to your spouse or civil partner if you do not have a Will and this could result in a liability to inheritance tax arising which could have been avoided if a Will had been made.
What happens if I don’t make a Will?
Your assets are distributed in accordance with the intestacy rules. These are determined by parliament. A person dies intestate if they die without a valid Will and testate if they die with a valid Will.
Do I really need a solicitor to make a Will?
There is no requirement to instruct a solicitor to make a Will. Most people find it helpful and it does ensure that you do not fail to think about things which are useful in connection with your Will and your beneficiaries and that the Will is properly executed so that it is a valid document. Your solicitor can also store your Will securely for you.
What is my estate?
Your estate is what you leave namely your assets, money, bank accounts, shares and properties less your liabilities e.g. outstanding mortgage, credit cards and other debts.
Who can I name in my Will and what can I give away?
The making of your Will is relatively unconstrained and you can name any beneficiaries you wish including charities. Some classes of people e.g. widows, widowers, surviving civil partners, surviving cohabitees and children can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if they feel that the provision made for them in a Will or under the intestacy rules is unreasonable.
What is an executor?
An executor is the person who is responsible for ensuring that your estate is properly administered; that all returns are made to HM Revenue and Customs; the Will is proved; liabilities are paid; and the remaining assets distributed in accordance with the terms of your Will. If there is no Will this person is called an administrator.
Can executors also be beneficiaries?
Yes. Executors can also be beneficiaries and very often are.
Who should I choose to be my witnesses?
That is a matter for you. The witnesses cannot be beneficiaries of the Will or married to, in a civil partnership with or living with them. They must be aged over 18, have mental capacity and be able to watch you sign your Will i.e. they cannot be blind. If you instruct a solicitor to prepare your Will you can sign the Will in their presence with one of their colleagues also in attendance.
What things should I include in my Will?
- Appointment of executors;
- Any financial gifts you may wish to make to godchildren, nieces, nephews, charities, schools, universities etc.
- The gift of any personal chattels whether of financial value or of sentimental value
- The division of the residue of your estate which is everything remaining in your estate once any specific gifts have been made
Who should I tell that I have made a Will?
The contents of your Will are confidential until you die unless you choose to share them. There is no requirement to tell anybody that you have made a Will but it is often useful if you speak to your executors so that they know their anticipated duty and that they know a Will has been made. We would advise that at the very least you tell your Executors that you have made a Will and where the original Will is kept so that they know where to locate this following your death.
I already have a Will, do I need to revoke it if I make a new one?
The new Will, if properly drafted will automatically revoke an earlier Will.
I have just got divorced, do I need to update my Will?
Almost certainly. If you are divorced, the Will itself remains valid but all the gifts to your former spouse or civil partner become invalid and if not addressed could result in a partial or full intestacy arising.
I have property overseas, should I make a Will in England or abroad?
It is best to make a Will in England to deal with your English assets and a Will in the country in which your other assets are held. The freedom to make bequests varies from country to country and you should take legal advice in the country in which your assets are located.
What is a mirror Will?
This is an informal, not a legal phrase, used to describe the situation where two people make a Will which is almost identical but in reverse i.e. in one Will husband leaves everything to wife, in the other wife leaves everything to husband.
What is a trustee?
A trustee is a person who manages a trust. Trusts can arise under a Will. For example if the beneficiaries are minors, their beneficial interest will be held by the trustees until they reach the age specified in the Will. A trustee manages assets for the benefit of someone other than him/herself.
What is a guardian?
A guardian is a person appointed in a Will to look after the testator/testatrix’s children until they reach the age of majority.
Will my estate be charged inheritance tax?
The nil rate band is currently £325,000 and estates in excess of this may be liable to inheritance tax which is charged at 40%. If the deceased is the second to die in a marriage or civil partnership, any unused nil rate band for the partner who died first may also be applied. If you own residential property and your estate passes to direct descendants, your estate may be entitled to benefit from the residence nil rate band which is currently £175,000.
How long is a Will valid for?
It is valid indefinitely unless it is revoked by deliberate destruction by the testator or testatrix or by the making of a newer Will, although it should be reviewed with relative frequency say every 7 years so that the Will keeps pace with changes in your financial circumstances and in the family structure.
Where should I keep my Will?
This is a matter of personal choice. You can keep your original Will at home in a safe place. Many people do however leave their Wills with the solicitor who prepared the Will. It is possible to deposit the Will with HMCTS and an informal register of Wills is kept by a company called Certainty.
Is there a central register of Wills?
No there is no central register of Wills. Certainty, a profit making company, is seeking to develop an informal register of Wills.
On what grounds could my Will be challenged?
- On the grounds that you lacked capacity to make it e.g. you did not understand what you were doing; If a solicitor is concerned that you lack capacity you will be advised to obtain a medical assessment confirming that you do have the capacity to make a Will to reduce the likelihood of a challenge under this ground succeeding.
- that you made it under duress or you were influenced by another person i.e. it was not voluntarily made; It is important when making a Will with a solicitor that you are seen on your own with no one else present to reduce the likelihood of a challenge under this ground succeeding.
- if there is any element of fraud; or
- because a person has a potential claim under the Inheritance (Provision for Family and Dependants) Act 1975 (see above). This may vary the provisions made in the Will or under the intestacy rather than challenge the validity of the Will.