Wills & Probate FAQ

For those of us who do not have an up-to-date will in place, making a will is something we should all consider (and that includes the young, fit and healthy). It is all the more important to make a will if your birth family are not the people you would want to inherit your estate.

As a solicitor specialising in wills and probate work, I regularly meet people who are estranged from members of their family for various reasons. For them, making a will helps to ensure that the people they would like to benefit from their estate do so and that their estate does not end up in the hands of someone with whom they have little or no contact.

Even if you consider that you do not have any assets, you should still think about making a will so that you can specify whom you would like to deal with your funeral and affairs on death. In some cases there may be unexpected assets, for example if your death results in a personal injury claim which is payable to your estate.

If you contribute to a pension or have life insurance, it is important to ensure that your nomination of the person or people you would like to receive any payment on death is up-to-date.

This is the person or people you appoint in your will to be responsible for your funeral arrangements and whom you trust to ensure that the wishes in your will are carried out.

The law dictates how your assets are distributed. There is currently no provision for survivors of unmarried couples, and widows or widowers do not automatically receive the entire estate. Step-children can also be excluded. Disputes can result, which can incur substantial costs and bad feeling.

When you get divorced, your ex-partner is treated as if they have died before you so they will no longer benefit from your estate. They are also not allowed to act as an executor, if appointed, and this could slow down the administration of your estate. If your ex-spouse was your sole beneficiary then your estate would be distributed under the rules of intestacy.

The Intestacy Rules have been devised with an ‘average’ family in mind and if you are estranged from the closest members of your family the rules are unlikely to reflect what you would wish to happen to your assets on death; the best way around this is to make a will. An unmarried partner is unable to benefit under the intestacy rules, so if you wish your partner to inherit from you and/or deal with your affairs, again, my advice is to make a will.

The Citizens Advice Bureau provide a guide to the rules of intestacy as part of their “Adviceguide” which may be found at:

http://www.adviceguide.org.uk/wales/relationships_w/relationships_death_and_wills_e/who_can_inherit_if_there_is_no_will___the_rules_of_intestacy.htm

Something that is often overlooked by those who are estranged from just one parent, is that if they are unmarried and die intestate without leaving children, then both their parents will be equally entitled to their estate.

Some people assume that if a sibling or siblings survive them, then their estate would go to their surviving sibling/s ahead of their parents, but this is not the case and parents will inherit before siblings.

In the case of some assets jointly held with someone else, such as bank accounts or investments, those assets will pass to the joint owner automatically if they survive you. For jointly owned property, such as a house or land, to whom your share passes on your death depends on the way in which the property is held jointly.

When you buy a house with someone else, there are two ways in which you can own the property jointly. The way in which most married couples own their home is as “joint tenants”. This means that they both own the whole of property (i.e. there are no distinct shares) and if one of the owners dies then the whole of the property will pass to the survivor of them, irrespective of what his or her will says and irrespective of the intestacy rules if they do not have a will.

The other way in which a property or land can be held jointly is as “tenants in common”. This means that each joint owner holds a distinct share of the property. The proportions in which the property is held may be specified through a declaration of trust, but if no declaration is made it is generally (but by no means always) assumed that the joint owners have equal shares in the property. So, if there are two owners, they are considered to own half each. When a property is held as tenants in common, if one of the joint owners dies their share does not automatically pass to the surviving owner or owners. Instead, their share will pass in accordance with his or her will or, if there is no will, in accordance with the intestacy rules.

In England and Wales we are free to leave our estate to whomever we like. We are not obliged by law to make provision for any particular relatives or dependants in our wills. So if you are not minded to leave anything to your spouse, a partner or children in your will, you are not compelled to do so. However, if you do leave someone who is dependant on you out of your will he or she may be able to make a claim on the estate under the Inheritance (Provision for Family and Dependants) Act 1975. If someone were to consider making a claim against your estate in the event of your death, they would need to seek advice promptly as there is a time limit for making a claim.

In the case of an adult child who has been left out of their parent or parents’ wills, generally if that child was not financially provided for by their parent or parents, it is difficult for that child to make a successful claim against the estate unless he or she can demonstrate that they have a particular need.

If you are concerned that someone you have left out of your will or who you intend to leave out of your will may have a claim on your estate, it is advisable that you seek legal advice from a wills and probate lawyer. Equally, if you have been left out of someone’s will and you think you may have a claim against the estate, you should seek legal advice as soon as possible.

Whatever your situation, there is always a benefit to talking through with a professional what you would like to happen to your assets in the event of your death. Discussing your affairs with someone who writes and deals with wills on a daily basis may prompt you to consider issues that might not have occurred to you before.

Having a will in place makes it clear who will receive your assets when you die and who will be responsible for dealing with your estate; your beneficiaries are not left with the worry of having to research the intestacy rules to find out who is entitled to what and who is responsible for sorting things out.

The cost of preparing a will varies between solicitors and depends on the complexity of the will. It is worth contacting a few local solicitors to find out their charges before making an appointment.

It is not compulsory to use a solicitor to make your will, but it is generally advisable to use a solicitor that specialises in wills and probate for peace of mind that your will will work in the way that you want it to.

If you are separated, according to the law you are still legally married or in a civil partnership until it is dissolved so your spouse remains entitled to your estate and assets as stated in your current will, even if you were living with a new partner when you died. We therefore recommend that following a divorce or legal separation, or indeed any major change in your life, that you review your will and consider updating it.

If you have any doubt about this, for a small fee your will can be entered onto the Certainty register which is a nationwide database which records where your original will is held.

Yes. Marriage revokes your current will unless it has been specially drafted to be in contemplation of marriage so you should make a new will together with your new spouse either in anticipation of your marriage or shortly thereafter.

It is important that your will is stored safely. Ison Harrison will store your will for you free of charge indefinitely.

Yes they can.

This is preferable as it is easier to discuss making your will face to face. If visiting our office proves problematic, home visits are also available.

However, in addition to face to face meetings, we also offer a telephone service for busy clients – please click the ‘Make a quick enquiry’ box to the left hand side of the page to request a Call back.

A Grant of Probate is a certificate issued by the Probate Registry which states the validity of the will and the executors’ authority to deal with the administration of the estate.

Dealing with an estate can involve a great deal of paperwork, particularly if the deceased had significant or complicated financial affairs.

In outline, you need to:

– identify all the deceased’s financial affairs and work out how to deal with them
– value the estate
– complete the appropriate inheritance tax forms and deal with any inheritance tax liability
– obtain the grant of probate allowing you to deal with the estate
– collect up all the assets and where appropriate arrange their sale
– pay off any debts owed
– distribute the estate in accordance with the terms of the will.

We can assist you with any or all of the above, saving you an immense amount of time and stress. Fixed fees are available for most probate work.

A Grant, whether of Probate or Letters of Administration, is not always needed. If an estate (everything the deceased person owned in his or her sole name) is over a certain amount in value a Grant will be needed to enable the personal representative to release assets in order to administer the estate.

A specialist solicitor will be skilled, sympathetic, efficient and heavily insured against mistakes. The cost need not be high, and the complex processes made easier to understand and go through.

This is a document in which you appoint one or more people to act on your behalf in the event that you lose the ability to manage your property and affairs for yourself. Having a Lasting Power of Attorney in place gives you peace of mind, knowing that should you suddenly have an accident or become seriously ill that close family members or friends would be authorised to assist in sorting out your affairs.

No. Attorneys are governed by the Mental Health Act which says that attorneys must abide by your decisions until you are clearly unable to make them for yourself at all. Attorneys must always act in your best interests. Having said that, you should only appoint someone you trust.

Yes. But you need to be aware that if you make a small error, e.g. a wrong date in a 14 page form, the Office of the Public Guardian may retain your Court fee of £110.00 and you will almost certainly have to re-submit the paperwork. In the unlikely event that we were to prepare this for you and got it wrong we would pay the cost of correcting things. In addition, we can answer any questions you may have in relation to powers of attorney.

If you were to lose your mental capacity to manage your property and affairs without having a Lasting Power of Attorney in place then an application could have to be made to the Court of Protection to appoint a deputy to assist you. This is a time consuming and lengthy process which can be avoided by making a Lasting Power of Attorney while you are still able to do so.