Questions & Answers
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How long does it take to register Lasting Powers of Attorney?
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What is a Single Will?
What are Mirror Wills?
What are Specialist Trust Wills?
What is a Protective Property Trust Will?
A pair of ‘Protective Property Trust Wills’ offer the most common form of protection against losing assets to pay for possible future ‘Care Home Fees’ Quite simply instead of a spouse leaving their home to each other on the 1st death the first person to die’s share of the property goes into a ‘Property Trust’ the ultimate beneficiaries are normally the children. This protects the dead persons 50% of the home. The surviving spouse can remain living in the property or move in the future if required.
Example: Bob & Ann both aged 76 owned a 3 bed semi worth £220,000 which they wanted to leave their children. Bob & Ann thought they had planned well but some years after Bob died his wife developed dementia and eventually Ann was moved into care, her house was sold, and the money used to fund the nursing costs. Ann lived in the nursing home for 3½ years in which time over £200,000 of her money was spent funding her care, when Ann died only £14,320 was left.
Stories like this are common, the sad thing is Bob and Ann knew about the benefits of Protective Property Trust Wills but time after time kept putting off upgrading their old Wills. It would have been so easy for Bob & Ann to upgrade their Wills.
Bob & Ann (like most married couples) had made only basic Wills so that when Bob died, Ann was left everything in Bob’s Will including the family home. Because Ann ended her life in care all the money had to be used to pay her care home fees.
With ‘Protective Property Trust’ Will’s Bob & Ann would have legally protected 50% of the value of their house.
What is a Discretionary Trust Will?
David’s Spendthrift Son
David is 60 years old and has only months to live, David is divorced and has 3 children and one son Mark who is hopeless with money.
David is a successful business person and has acquired a substantial estate which he wants to use to help his son Mark, but he knows Mark will spend or waste his share of the money in a very short time. What can David do? David can set up a ‘Discretionary Trust Will’ The terms of the Trust create a Discretionary Trust so during the lifetime of Mark the trustees of David’s Will can control the funds ‘at their discretion’ which are given to Mark.
The Trust may be for a specific sum or the whole or part of the estate. After Mark’s death, any remaining funds can be passed to David’s other beneficiaries or charity’s. Control always remains with David’s trustees.
What is a Right of Occupation Trust Will?
It is estimated that only 1 in 3 people have a Will but increasingly in the modern family arrangement their importance is growing dramatically. Gone are the days when a husband and wife stayed married for life, had 2.4 children and relied on the Laws of Intestacy to pass their estate on to their loved ones.
It is now commonplace that a person may have had multiple marriages, children by different parents, or even choose to remain unmarried. In all these cases a Will is of paramount importance to direct where a deceased’s assets should be bequeathed. The Law of Intestacy seeks the last surviving blood relative and in absence of one passes the entirety of an estate to the Crown. Who would want this if they had a close friend, a cohabiting partner or a favourite charity?
One such area worthy of highlighting is the ability to give a loved one a right of occupation to remain in your property for their lifetime. To liken this to a real-life example, a testator may have had children by another during their lifetime and now having ended their relationship with the children’s parent has started a new relationship with another. In our experience, whilst a testator is always concerned with the needs of their new partner, ultimately their intentions are in most cases to provide for their offspring.
As a person’s most valuable asset is normally their home, this raises the question of what would happen to the property were the person to die. A right of occupation clause would be important in this case, as it would allow the testator to place their property in a life interest trust for the benefit of their children whilst allowing their current partner to remain in the property for their life. This would then serve to tick both boxes of the testator’s concerns:
(1) making sure offspring are provided for and
(2) making sure their new partner was not without a home.
The trust would be worded in such a way to protect the children, ending the arrangement if the deceased’s partner married or cohabited.
Who gets what if I die with no Will?
You are married (or in a civil partnership) your estate is worth more than £250,000 and you have no children. Your surviving spouse/civil partner inherits it all.
You are married (or in a civil partnership) your estate is worth more than £250,000 and you have children. It now starts to get interesting and potentially problematic for the surviving spouse/civil partner. The first £250,000 and the personal possessions will go to the spouse/civil partner. The remainder of the estate will be divided in half with half going straight to the surviving spouse and the other half being divided between surviving children.
You are not married (or in a civil partnership) but have children Your children will inherit everything equally. Again, if a child has pre-deceased you then their children will get their parent’s share.
You are not married (or in a civil partnership) and have no children Your surviving relatives will inherit in the following order.
2. Brothers or sisters or their children (or children’s children etc)
3. Half-brother or sisters or their children (or children’s children etc)
5. Uncles or aunts (brothers and sisters of the whole blood of a parent) or their children (or children’s children etc)
6. Uncles and aunts (brothers and sisters of the half blood of a parent) or their children (or children’s children etc)
7. If you have no surviving spouse/civil partner, parents, children, siblings, grandparents, uncles, aunts, cousins, first cousins etc , then under the Intestacy Rules, everything will go to the Crown.
What happens when there is no Will?
Can an executor be a beneficiary in a Will?
Can children under 18 inherit?
I’m divorced but what will happen with my existing Will?
Can I make my own Will?
Yes, you can. But there are significant risks in doing so, which you will not be around to sort out. It could mean substantial legal fees to put things right and quite apart from the upset and confusion it could cause those you leave behind. You should consider that a Will that is not clear under the law is open to challenge and your wishes may be overruled. A Will not made under the correct procedures can be rendered invalid, when making your own Will you may overlook some possibilities and unforeseen changes in circumstances.
This is a true story: About 12 years ago I met a lady in her 60’s, some years earlier she had been living with and looking after her elderly mother. The mother owned a £200,000 house outright and had £110,000 in savings.
They decided to make their own DIY Will to save a few pounds, it was agreed that when the old lady died her 2 other daughters would receive £30,000 each and the lady I met would have the rest (residue) including the house.
This is what happened: The lady’s mother got dementia and had to go and live in a nursing home. Her house was sold to pay the cost of the care.
3 years later the old lady died and only £64,000 was left after her funeral was paid for. Because gifts of money come out of an estate first the 2 sisters who were expected to receive the smaller part of the estate received their £30,000 each but the lady I met who was supposed to have the most for looking after her mum received only £4,000.
This is a true story and it is a perfect example of a badly written Will and what can happen. The Will should have been written in a way where this could not have happened.
An experienced Will writer would have understood the objectives required in the Will and drafted it in such a manner that the above would not have happened. It really is not a good idea to make your own Will, far too many mistakes are made causing huge problems and arguments within families.
Do I need to nominate guardians in my Will?
Do Married couples need two Wills?
Does getting married invalidate my Will?
When you marry, any existing Will is automatically revoked (cancelled) and becomes no longer valid. If you don’t make a new one, then when you die the law of intestacy decides how your assets will be divided.
Any marriage will automatically revoke your Will unless you’re making the Will in anticipation of marriage.
A Will made in anticipation
A Will can be made in contemplation of marriage. As long as the Will on the face of it states that it is made in contemplation of marriage and the marriage is to a named person, then if you subsequently marry that person the Will won’t be invalidated by the marriage
How do I sign my Will?
You must sign the Will first. The 2 witnesses must watch you sign. The witnesses must then sign the Will and watch each other sign and witness the Will, then they must put their names, addresses and occupations. The testator (You) must watch the witnesses sign. Don’t forget to date the Will. Day / Month & Year
You should keep the Will in a safe place, you should let the executors or one of the major beneficiaries under your Will know where it is kept. You should never attach anything to your Will by way of a paper clip, pin or otherwise or in any way leave any mark on it. Such marks can cause great difficulty when it comes to prove your Will in the probate registry. Do not ever store a will in a safety deposit box because probate is needed to open the box & probate cannot be granted without the Will.
Why do I need Probate as my mum left a Will?
The Grant of Probate is the legal document that will allow your Executors a legal right to gather in your assets and then distribute them according to your Will. Most organisations such as banks, building societies, life assurance companies need to ensure they are paying over a deceased person’s money to the correct person and the Grant of Probate is the proof.
The Executors are named on the Grant and the organisations pay them accordingly to then pass over to the beneficiaries. If someone owns a property and / or has over £15,000 of cash assets held with a bank/building society a Grant of Probate is usually going to be needed.
Please note however that banks/building societies have their own rules so they may wish to see the grant for a lower figure than £15,000 or even a higher figure. If the deceased held everything jointly with their spouse, then the Grant of Probate is not going to be needed just simply show the death certificate to the bank/building society and they will remove the deceased spouse’s name. All the above deals with situations where the deceased left a Will.
How long does probate take if there is a Will?
If there’s a will, this can sometimes make the probate process quicker, but this isn’t always the case. On average, in England and Wales, it takes between 9 and 12 months to obtain the Grant of Probate and to complete the estate administration process, regardless of whether or not there’s a will.
Probate can take longer than this though and there are some potential delays that can occur along the way. For example, if a property needs to be sold but there are issues with the sale, this in turn will delay the probate process.
Probate if there is a Will. At the start of the Probate process you’ll need to find out whether the deceased person left a legally valid will, as this dictates who should apply for probate and who the beneficiaries are.
When someone writes a will, they name executors, who are the people they want to administer their estate after their death. They can also choose who should benefit from their estate after their death – these are their beneficiaries.
So, if there is a will, it’s the executors who must apply for probate. On average it takes between three and six months to get the necessary paperwork from the Probate Registry. For more information, see How Long Does Grant of Probate Take.
Once the Grant of Probate has been issued, it’s the executor’s job to continue with the administration of the estate. Our Probate Solicitors estimate that on average, the entire probate and estate administration process takes between nine and twelve months.
However this is only an average. Straightforward estates with no property to deal with can be completed faster than this. On the other hand more complex estates can take longer, particularly if there are lots of properties or overseas assets.
Another factor that impacts on how long an estate takes to administer is the amount of time that the executor can dedicate to completing this work. Probate involves a significant amount of legal, tax and administrative work which can be very time consuming. If this work is not completed in a timely manner, the probate process will inevitably take longer. For this reason, many executors choose to instruct a Probate Specialist to do this work on their behalf.
Is probate faster with a will?
The probate process is largely the same regardless of whether or not there’s a will. This means that probate isn’t necessarily faster if there is a will. However, the presence of a will can make things more clear-cut. For instance, the loved ones of the deceased will know exactly who the executors should be. The executors will also know the names of the beneficiaries, and exactly what the deceased wanted them to inherit.
Having this information to hand can make the probate process far more straightforward. However, all estates are subject to potential delays and sometimes delays can actually arise because of the will. For instance, the relatives of the deceased may not be able to find the original will or the latest version of it. Searching for a missing will can be hard as there’s no national register. It can be especially complicated if the organisation that drafted the will has since closed down.
Additionally, if someone has been excluded from the will, he/she may make a claim under the Inheritance (Provision for Family and Dependants) Act. If the will has not been properly drafted, this can cause uncertainty around what the deceased would have wanted. Ultimately a poorly drafted will could even be found to be invalid; a process which could significantly delay the probate process.
Why does probate take so long?
Probate is a long and complex process, and there are lots of factors at play. These are some of the most common causes of delay:
1. Obtaining the grant of probate The grant of probate can take up to 3 months to arrive once the application has been sent to the probate registry. If the application isn’t submitted early on, this could hold things up further down the line.
2. Paying Inheritance Tax Any outstanding Inheritance Tax that’s due from the estate will need to be paid to HM Revenue & Customs before the Probate Registry will issue the Grant of Probate. If the executor is unable to settle the Inheritance Tax bill, then this will cause delays.
3. Problems with the will As we’ve mentioned, poorly drafted will can cause significant issues during probate. If the Will is unclear, invalid or incomplete then family members may disagree on who is entitled to receive what. Homemade or DIY wills commonly cause these types of issues.
4. Selling the property Anyone who has sold a home will be familiar with just how unpredictable this process can be. Unfortunately this is no different when selling a probate property. Although it’s likely that there will be no upward chain, there will still be a host of other elements that can hold up the sale, just as with any other property sale. For more information, see Potential Delays in Conveyancing.
5. Death of an executor If the executor or administrator dies during probate, someone else will need to be appointed in their place. They will then step in and take over the rest of the administration, but this can result in delays. Usually this responsibility will fall to the person named as the executor of the recently deceased executor.
6. Missing beneficiaries Sometimes locating and contacting beneficiaries isn’t as straight forward as it sounds. If a beneficiary can’t be easily identified or located, then inquiries will need to be made and searches will need to be carried out. For more information on how to carry out these searches, see Searching for Missing Beneficiaries during Probate.
7. Third party delays The more complex the estate, the more third parties are likely to be involved. If there are foreign assets, for example, then it can take time to get the necessary authorisation to sell or transfer these, or if the deceased owned shares or an interest in a trust, then the administration associated with these assets is likely to add time to the Probate process.
With our Probate Complete Service we take full responsibility for getting Grant of Probate and dealing with the legal, tax, property and estate administration affairs.
What is contentious Probate?
Why would a Will be disputed?
There are six main ‘technical’ reasons for challenging a Will, as follows:
Lack of testamentary capacity.
For a person to make a valid Will they must: Be able to understand that they are making a Will, and the effect of making that Will. Know the nature and value of their estate. Understand the consequences of excluding/including certain people in their Will. Not be suffering from a disorder of the mind that might influence their views.
The fact that a testator is eccentric or was experiencing certain delusions does not necessarily mean there is a lack of testamentary capacity. (Banks v Goodfellow (1870).
Lack of valid execution.
The will must be in writing and signed by the testator (the person making the Will) or signed by someone in their presence under their direction. It must appear the testator intended by their signature to give effect to the Will.
The testator’s signature must be made or acknowledged in the presence of a minimum of two witnesses who are present at the same time. There is a legal presumption that a Will has been validly executed, unless evidence can be provided to show the contrary.
Lack of knowledge and approval.
For the Will to be valid, the person making the Will must have knowledge of, and approve, its contents. You can challenge a Will based on lack of knowledge even if the Will appears to be executed properly, and even if you know the testator was of sound mind.
The Will can be contested if you believe it has been forged or some sort of fraud has taken place. This might be the forging of a signature, for example. If someone led the testator to believe that certain facts were true, and this influenced the contents of their Will.
You can challenge a Will if someone unduly influenced, coerced or put under duress the person who was making the Will.
Rectification and construction.
Sometimes a Will is drafted that does not properly carry out the testator’s intentions. This could be either because of an administrative error or because the Will writer did not understand the testator’s instructions.
Are there other reasons for challenging a Will?
Other reasons for challenging a Will, as follows:
I’ve been left out of a Will.
An increasing number of grown-up children are finding that they have been left out of their parents’ Wills. With people living longer than ever before, some parents are taking the view that with their adult children being financially stable, their money should instead go to grandchildren, friends or charity. However, the number of challenges to Wills is also increasing. If you did not receive a share of someone’s estate and you believe that you should have done, or you have good reason to believe that the share you received was smaller than it ought to have been (perhaps because they supported you financially during their lifetime). You may be able to claim under the Inheritance (Provision for Family and Dependents) Act 1975 for ‘reasonable provision’.
I was promised a gift.
If the Deceased promised you something and you relied on this, but they then did not make the appropriate provision in their Will, you may be able to bring a claim. A good example of a promissory estoppel claim would be if the Deceased promised you: “I will look after you financially if you give up your job to take care of me.” As a result of the promise, you quit your job to be the Deceased’s full-time carer up until their death.
Your claim against the Deceased’s estate in this instance would be for money or property to put you in a position that you would have been in had the promise been fulfilled. Note that the Court’s approach to reimbursing you would be proportionate so in this example, it is likely the Court would seek to reimburse you financially as if you had kept your job.
I’m owed money.
If the Deceased owed you money you may be able to make a claim against the estate.
They left me a gift on their deathbed.
If a dying person gifts something to you close to their death, this may override their Will. There are conditions for the gift to be valid. If a dying person gifts something to you close to their death, this may override their Will. The gift must be made with the belief that death is impending typically this means a few days. This belief must exist for a reason (for example, because they are suffering from a serious illness or about to undergo a risky operation). Deathbed gifts must be conditional on death.
What is a Legal Precedent in law?
These are 2 Will writing precedents in law that some of you may find of interest.
Banks v Goodfellow (1870)
The common law test for testamentary capacity has been long establish, being set out in the case of Banks v Goodfellow as follows:
“It is essential to the exercise of such a power that a testator [a] shall understand the nature of the act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, [d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
Larke v Nugus (1979)
Cases involving disputed wills very often feature a Larke v Nugus statement. But what is a Larke v Nugus statement?
A Larke v Nugus statement is prepared by the solicitor who originally prepared the disputed will or witnessed its execution. These statements are frequently requested by the Claimant’s solicitor as evidence against the validity of a will on the grounds of lack of testamentary capacity, undue influence, want of knowledge or approval or forgery.
The name, Larke v Nugus, originates from a legal case that determined the law on requests for information regarding the circumstances surrounding the instruction and execution of a will [Larke v Nugus  WTLR 1033].
The starting position in relation to disclosure of information regarding a deceased’s will is that the information should only be made available to the personal representatives of the estate (or to others with their consent) prior to obtaining the Grant of Administration. However, this does not apply where a request for information is made to the Solicitor who prepared and/or witnessed the execution of the will and there is a dispute in relation to that Will. In these circumstances the Law Society has recommended, since 1959, that the Solicitor should make a statement outlining the circumstances surrounding the instruction and execution of the Will to any party to probate proceedings or someone who has a reasonable claim against the Will. In 2000 the case of Larke v Nugus endorsed this long-standing recommendation, which means that a request for information now carries judicial weight.
What is a Deed of Variation?
A deed of variation – sometimes known as an instrument of variation – is a document written by the beneficiaries of a will that lets them change how the estate is distributed.
So, if you want to send some of the inheritance to someone who wasn’t included without contesting the will, or simply change who gets what (or how much), you need to make a variation. And you only have two years after the death to complete these changes.
When would you use a deed of variation?
There are four main reasons why you’d need to send off a deed of variation. According to the government, these are to:
– Reduce inheritance tax or Capital Gains Tax
– Provide for someone who didn’t inherit
– Transfer assets to a trust
– Remove doubt or uncertainty in the will
Fairness and recognition are often why changes are made to a will after the person has passed away – like, including a family friend who helped care for the deceased, or equalising the share of estates between children or grandchildren.
In these cases, a deed of variation is used to right a perceived wrong, protect future relationships, or resolve a past disagreement that’s no longer relevant.
Can I have a Woodland burial?
Yes please contact www.muchwoodburials.co.uk they have a natural burial ground just north of Huntingdon where your body or ashes can be buried or just your ashes scattered.
If you have any outstanding questions don’t hesitate to get in touch
We are happy to answer questions by phone or at a home consultation arranged at your convenience within the St Neots, Biggleswade, Huntingdon area.