Heritage Wills and Probate

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Home Your Will

Your Will

Preparation for the appointment

(a) You as an individual. We will need to know a number of things about you. Some are obvious: whether you are married or are expecting to be married or previously married or widowed; whether you have young or adult children or grandchildren and whether there is anybody else dependant on you.

(b) Your estate. Although not essential it would be helpful to list the things you own - such as property, savings and shares - with some indications of their values, as well as anything that you owe including mortgage, loans and overdrafts etc. This will enable us to calculate any inheritance tax liability and advise upon practical ways in which to minimise it.

What is contained in a will

Your will may be very simple or it could be very complex. Take a look at our case studies page to see if you require a 'standard will' or whether your will should incorporate a particular trust.

If you require a 'standard will' then the fee will include (where relevant) all of the following as standard:

Appointment of guardians

If you have any children under 18 then you should think about appointing a guardian in your will to look after them. Any guardian should be carefully chosen and you should make sure he or she is willing to act. You may appoint one with a replacement in case your first choice is unable or unwilling to act, or you may appoint more than one to act jointly.

Gifts

The people or institutions who receive your estate are called beneficiaries. Gifts made by will are of two main kinds.

Specific sums of money or items

These are paid out first and unless you nominate a substitute beneficiary, the gift will lapse and fall into your ‘residuary estate’ if the beneficiary dies before you. You can make as many specific gifts as you like or none at all – you may just want to keep it very simple and leave everything to one person.

If you no longer possess a specific item when you die then the gift simply fails and is disregarded.

Personal items

You can leave all your personal possessions - jewellery for example - for your executors to distribute according to any informal wishes you may leave or to exercise their own discretion.

Residuary estate (or residue)

The residue is simply all that is left over after all the specific gifts have been deducted and all debts and taxes have been paid. You do not need to list what it consists of, and a will should always contain a gift of residue because you can't know in advance exactly what your estate will consist of.

This gift will also mop up any specific gifts that fail (for example, because the beneficiary has died before you and you have not named a substitute). The beneficiaries of the residue will receive a percentage rather than an amount - for example 100% of my residuary estate to my spouse, but if they have already died, then in equal shares to my children.

You should always appoint substitute beneficiaries for your residuary estate, particularly where you have a young family and the possibility exists of a catastrophe happening. For, if all of your beneficiaries die before you or at the same time as you an ‘intestacy’could arise, which means that without substitute beneficiaries some or all of your estate would be distributed according to fixed rules to individuals that you may not have chosen.

Children - contingencies

Children cannot inherit until they are 18, but you may want to stipulate a later age that they should inherit – ie 21. Your will should also say what should happen if any of your children die before you – should the gift pass to their own children (if any) or pass to your other children instead.

Appointment of executors and trustees

Executors deal with the administration of your estate. There is often a great deal of work involved and is a position of responsibility. They will be responsible for obtaining valuations of your estate, collecting in all the assets of the estate, applying for the Grant of Probate by completing probate forms, paying any tax or debts as well as various expenses such as funeral and administration costs.

Once these formalities are complete the Probate Registry will issue them with what's known as the Grant of Probate. Your executor(s) must then sell or distribute the estate in accordance with the terms of the will. It is therefore essential that you trust your executor(s) completely.

Trustees are the persons who will manage any property for the beneficiaries under the terms of any trusts and in accordance with the law. There are various types of trust and these are explained elsewhere on this site. It is advisable to appoint at least 2 trustees, and it is usual for the executors and trustees to be the same people, although you can appoint different executors and trustees if you wish.
  • You can appoint anybody you wish to be an executor, even if they are a beneficiary of your will, provided that they are at least 18 at the time they act as executor.
  • They can be your surviving spouse or another member of your family such as adult children or perhaps a trusted family friend or a professional such as a solicitor, accountant or bank.
  • You can appoint 1 or as many as you wish, but only a maximum of 4 will be able to receive a Grant of Probate.
  • It would be sensible to appoint at least 2 executors, plus a reserve in case one is unable or unwilling to act or dies before you.
  • If you appoint a relative or trusted friend, though they may recover out of pocket expenses, they are not entitled to charge for their time. You may therefore wish to leave them a sum of money for undertaking the office of executor.
  • An executor cannot be compelled to act. Because of the amount of time, patience, aptitude and responsibility that may be required, it is strongly advised that you make sure that they are not only capable, but willing to act, as they could refuse.
  • If there is no one individual to whom you could entrust this task maybe because there is the likelihood of a dispute or if your affairs are particularly complicated, it may be advisable to appoint a professional such as a solicitor, accountant or your bank. However, the disadvantage of having a professional as an executor is that they are expensive and are likely charge a percentage of your estate plus an hourly rate to administer your estate. Banks in particular are very expensive and they are unlikely to have the personal knowledge of your family that an individual appointed by you would usually have. A professional can though bring expertise, which can sometimes be more cost effective in the long run.
  • If you appoint non-professional executors they in turn can (and should where necessary) obtain professional help if the need arises.
  • Once appointed, executors cannot be removed if they wish to take up their duties. An individual non-professional appointed jointly with a bank or solicitor may feel that they are quite capable of completing the administration themselves without the assistance of the bank or solicitor, but if the estate is reasonably large it is quite unlikely that the professional would agree to renounce its role and therefore its fee.
  • You can decide what powers your trustees have and don't have while they are looking after the trust fund and have them written into your will.

Disposal of body/funeral directions

You may have a preference for burial or cremation or for a particular kind of funeral, or wishes about the place of burial or the disposal of ashes. Things of this kind could be mentioned in the will, though close relatives should be told beforehand of your wishes.

You may wish for your body to be available for medical research or for your organs to be made available for transplant. Your will can contain these wishes, but it may not be read until some time after your death so close relatives should be told. And since any organ intended for transplant must be removed quickly, you should also carry a donor card (available from doctor's surgeries and from many chemists). You can also register by calling the NHS Organ Donor Line on 0845 60 60 400 or sign up at www.uktransplant.org.uk.

Disinheriting a member of your family

You can leave your estate to whoever you choose. However, If you decide not to leave anything to a spouse, former spouse, any of your children or somebody you were supporting financially at the time of your death, then they may be entitled to make a claim on your estate if they think the will makes inadequate provision for them. A partner who lived with you as a husband or wife - although you were never married - may also be able to make a claim. Whether or not they succeed is uncertain, and the courts will consider all of the circumstances.

To challenge a will, a claim must be made within 6 months of the Grant of Probate being issued, and this won't be extended unless in very exceptional circumstances. If you don't want to leave anything to someone in the above categories, we can advise upon the most suitable course of action to minimise the risk of any challenge being successful.

Signing your will

Shortly after the appointment, you will receive a draft of your will for your approval. Since it will be written in clear English you should be able to understand it. Don't hesitate to question anything which seems wrong or to ask for an explanation of anything that puzzles you. Provided it meets with your approval, the time has come to execute it.

Execution involves the will being dated and then signed and witnessed according to strict rules. If these are not followed it won't be valid. We will guide you through the procedure, and will be present to ensure that the task is carried out properly and be one of your witnesses if need be.

Updating your will

It is wise to reconsider your will every few years, just to make sure that there have been no changes in your circumstances or those of your beneficiaries, or in the law or tax system which can make alterations desirable.

There are 4 main reasons to update your will - namely:
  • births
  • deaths
  • changes in relationships
  • financial - to minimise inheritance tax/care home fees

Simple alterations to a will may be made by codicil (a document executed in the same way, which makes minor changes to the will but leaves most of it intact). Generally codicils can be problematic and so in most cases it is better to have a new will.

Never try to alter a will yourself by crossing bits out or putting bits in - changes made in this way will almost certainly be invalid. Neither should you attach any documents to it. Even if you want to cancel a will altogether, don't try and do it yourself; your attempt may not succeed - and even if it does, it will leave questions in people's minds.

Remember that:

  • If you marry after making a will, the whole will is automatically cancelled unless you were intending to marry when you made it and the will says so;
  • If you get divorced after making a will, the whole will is not cancelled but gifts to your former spouse are cancelled and so is any appointment of that spouse as your executor;
  • If you separate from your spouse without divorcing, your will still stands;
  • If you begin living with a new partner without getting married, any existing will remains effective and the new partner will not benefit from your estate unless he or she is already a beneficiary.

Safekeeping of your will

It is important that your will is not destroyed, lost, stolen or tampered with either before or after you die, so you should keep it in a safe place that is only accessible to you and your executors - ideally not at home. If you store your will with your bank ensure that your executors have access to it when they require it. If your executors cannot locate your will it will be assumed that you destroyed it.

Our storage and maintenance facility

Alternatively for a modest annual fee we can store your will for you. A further benefit of doing so, is that should you need to amend your will, you would be able to do so for a fraction of the cost rather than paying the full fee for a new will. You would be given confirmation of storage and a copy of your will for your reference. All of our wills are retained in a fully insured fire proof safe.

 

 

 

 

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