You can view the information on line by clicking on the page for each factsheet or you can download a PDF version of the factsheet for future use using the Adobe pdf logo alongside.

Number	Date	Title	Page	PDF
01	24 June 2011	Guide to making your Will	Bespoke Wills
02	4 July 2011	Obtaining a Grant of Probate	Probate
03	25 May 2011	Changing your Will	Changing your Will
04	12 May 2011	Making a Living Will	Living Wills
05	19 May 2011	Lasting Power of Attorney	Lasting Powers of Attorney
06	7 July 2011	Letters of Administration	Probate
08	22 June 2011	Inheritance Tax	Inheritance Tax
09	21 June 2011	Wills for Business Owners	Wills for Business owners
10	23 June 2011	Wills for Professionals	Wills for Professionals
11	23 June 2011	Wills and Overseas Property	Overseas Property

Before you start to consider what you might want to put into your Will and before you begin the process of drafting it, or instructing YourWill to draft a Will for you, it is worthwhile taking a few minutes just to learn a little more about what what a Will is and, in general terms, what it can and cannot do.

This Introduction to Wills Factsheet looks at what a Will is, and at issues relating to :

• who can make a Will,
• mental capacity,
• undue influence and fraud, and
• knowledge of the contents of the Will.

You will find information about other aspects of Wills and probate in our other factsheets. These include topics such as planning your Will, appointing executors and how to sign your Will.

You will find a list of topics to the right of this page and details of all of Factsheets in the Factsheets section of the web site and at the side of each relevant page.

What is a Will?

A Will is a legal document the main function of which is to set out what you want to happen to your property, assets, money and other things which you own (called collectively your “estate”) on your death. A Will can also, however, be used to set out your wishes on a number of other matters, including:

• who you want to deal with your estate on your death (your “executors”);
• who you want to appoint to look after any of your children who might be under 18 should both you and your spouse/partner die (“guardians”);
• whether you want to be buried or cremated and if you have any special instructions as to your funeral;
• whether you want to donate your organs or your body to medical research; and
• whether you want to make any gifts – for example to friends or charities;

Because a Will is described as a document, it follows therefore that it must be in writing. A verbal statement will not, other than in exceptional circumstances, be regarded as a valid way of passing your property. Provided that it is correctly signed and witnessed, strictly speaking any written document, even a letter, could constitute a valid Will. However, as we mention below, we would not recommend such an informal approach.

In addition, for a Will to be valid it must be made in a certain way and must be signed by the person making the Will (called the “testator”) in the presence of two other adults (“witnesses”) both of whom must be present at the same time and who witness the Will being signed. You can find out about the specific requirements for witnessing a Will in the YourWill web site section dealing with Signing and Witnessing Wills.

Do I need a solicitor

Although you do not need to use a solicitor or other professional to write a Will for you, it is recommended that you do so. It is an important, technical document and if you make it without proper assistance then you may find that, either:

• you have not followed the correct procedures and so it is declared invalid by the courts and your estate will pass as if you had not made a Will; or
• it is not clear what you intended to do and either your executors will be unable to follow your wishes or the Will is challenged and your wishes are overruled.

Who can make a Will

Almost anyone can make a Will, but there are some limitations of which you need to be aware and some additional steps which may need to be considered in certain circumstances.

Anyone can make a Will provided:

• they are 18 or over at the date upon which they sign the Will, or
• they are 16 or over and are either in the army or air force and on active service or in the navy and at sea at the date upon which they sign the Will, and
• they have the necessary testamentary capacity to make a Will.

Mental capacity

Issues as to mental capacity can be a problem and have regularly lead to Wills being contested and over-turned by the courts. It is therefore vitally important that if there is any doubt as to a person’s mental capacity that additional steps are taken to ensure that the Will is not overturned after their death.

The distinction between those with testamentary capacity and those without it is neither precise nor well defined and there are many who may lack the testamentary capacity to make a complex Will but are more than capable of making a simple Will. Others may be seriously impaired mentally in some respects but still be capable of making business or financial decisions about their estate. Some incapacities may affect a person but have absolutely no bearing whatsoever on their ability to make a Will.

In determining whether a person has capacity, the courts still rely on a case from 1870 – Banks v Goodfellow which contained three main tests for mental capacity:

• Did the testator understand that, by signing this document, they were making a will – and that in doing so, they were giving away their assets when they died?
• Did the testator broadly know what they owned?
• Did the testator consider the people they were including in the will – and also excluding – and why?

Just over a hundred years later, in 1977, Justice Templeman proposed in the case of Re Simpson that the Will of an aged testator, or a testator who has suffered a serious illness, should always be witnessed or approved by a medical practitioner who is happy as to the capacity and understanding of the testator, and who then keeps a record of the fact in case it needs to be called upon at a alter date.

Finally, bear in mind that a person making a will must have capacity at the time they decide what to do with their estate and at the time they sign their will. If a person does not have capacity to make a will, and would otherwise die intestate, a statutory will can be made under the auspices of the Court of Protection.

Undue influence and fraud

Whilst it might seem an obvious point to make, it should also be borne in mind that the testator must intend making a Will, and must not be doing so as a result of undue influence or fraud, and must not be mistaken as to the contents of their Will.

It is not uncommon for testators to be coerced into making or amending a Will in circumstances where they either simply do not want to make a Will or, more likely, where a prospective beneficiary exerts undue influence to ensure that the terms of an earlier Will are revoked in favour of the terms in the new Will.

Normally, the courts would require that the undue influence place considerable pressure on the testator. Whilst no physical force needs to be exerted for there to be undue influence, there does have to be some element of coercion. Thus simply persuading someone to make or change their Will, or drawing to the testator’s attention alleged obligations would probably not be enough. Clearly this is not something that is easy to prove – especially as the testator will by this time have died and cannot therefore give evidence – and the courts will always work on the presumption that there was no undue influence unless it can be proved to the contrary.

Fraud would be an equally difficult matter to prove. For a Will to be set aside on the basis of a fraud, it would have to be shown that the testator had made a Will as a result of a deception – for example persuading the testator to change their Will on the basis of a lie.

Knowledge of the Contents

Another apparently obvious point, but nevertheless one which is very important, is that it is essential for a Will to be valid that the testator knows what is in their Will.

Usually there will be a presumption that a person is aware of the contents of their own Will. However, if the testator is blind or illiterate or unable to sign the Will themselves then that presumption will not apply. In these circumstances an additional clause may need to be added to the Will confirming either that the Will has been read to the person if they cannot read it themselves and they have understood and approve of its contents, or that it has been read, understood and approved of by the testator but signed by someone else on their behalf.

Wills come in a variety of shapes and sizes – each type addressing a different set of circumstances. The kind of Will which you choose to make is going to depend upon what you want to do in your Will, what your own circumstances are and how complex your estate is.

YourWill allows you to draft a number of different types of Will online. However, if your estate and personal circumstances are complicated, or if you simply want help in choosing and creating the right type of Will for you, then you can instruct us to do all of the work for you.

There are two basic types of Will which you can make through YourWill using our online service – a Standard Will and a Discretionary Trust Will. If your circumstances require something more complex than this, or you are unsure about how to proceed, then we will be more than happy to advise you further. Alternatively, use our “Choose the right Will” selector to help you decide which will is most appropriate for you.

Standard Wills

A Standard Will is essentially the most straightforward and is the correct choice if you do not need to make provision for someone who may not be able to manage their own property or you do not have to worry about nursing home fees. If these are issues for you, then you need to consider a discretionary trust Will, about which you will find more below.

There are four different online options for a comprehensive Will:

1. Will for a married person or civil partner;
2. Will for a married person or civil partner (pair);
3. Will for an unmarried person;
4. Will for an unmarried person (pair).

Pairs of Wills, sometimes called Mirror Wills, are intended for those who are either married or in a civil partnership and who want to have identical or very similar Wills. These work out cheaper because the wording of the two Wills is very similar. They can also be used by couples who are not married to each other – but we would recommend that care be taken with this option as there may be provisions which those who co-habit but are not married may need to think about so as to ensure that their estate is disposed of in the best way.

For more information about making your Will go to:

• Online Wills for details of drafting your Will online using the YourWill system, or
• Bespoke Wills for details of how YourWill can prepare a Will for you.

Discretionary Trust Wills

Discretionary trust Wills are suitable for anyone who is married, or in a civil partnership, and who wishes to create a discretionary trust for one of the following reasons:

1. To try and avoid a local authority using a share in the home to cover the cost of long term medical or nursing care for the surviving spouse/civil partner, or
2. To ensure that gifts intended for children/grandchildren from a former relationship are received by them, without the danger of the surviving spouse/civil partner reducing the amount that goes to them.

Discretionary trust Wills can also be used:

• as a means of providing for vulnerable beneficiaries such as minor children or those who would not be able to manage their own affairs,
• as a means for making gifts to those with financial problems such as where the beneficiary is bankrupt or in danger of becoming bankrupt,
• where the beneficiary is going through a divorce and there is a danger that any gift might pass to a former spouse of the beneficiary, and
• can also be used as a device in Inheritance Tax planning.

For more information regarding the setting up of a discretionary trust Will, either:

• call us on 084 4804 4800;
• Request a call-back using the form to right of this page;
• Email us at wills@richardnelsonllp.co.uk,
• Or write to us at Richard Nelson LLP, Castle Court, Cathedral Road, Cardiff, CF11 9LJ

Other types of Will

There are a number of other types of Will which you could make, but these are not available online and you would need to instruct us separately if you wanted to make one of these. They include:

Property Trust Wills

These are used by people who want to protect a property’s value for children and grandchildren, rather than risk having it sold to pay for taxes or to fund care home fees.

Flexible Interest Trust Wills

These are similar to Property Trust Wills. They can also help to ensure that capital is preserved for future generations and to ensure that a surviving spouse, whilst receiving interest on the capital in order to support themselves, cannot access the capital fund which provides the interest.

Living Wills

Living Wills are dealt with in more detail in the separate section Living Wills. Living Wills allow you to set out your wishes as to healthcare and medical treatment should you no longer be able to communicate them yourself.

Joint Wills

These are very rarely used today and are probably not the best way in which to deal with an estate.

Essentially, a Joint Will is one which is made by two people but using only one document. The law treats the Will as being two separate Wills and when each of the testators dies, it will be used to dispose of their estate.

Mutual Wills

As with Joint Wills, Mutual Wills are rarely used today and occur where two or more people each make separate wills which either confer reciprocal benefits on each other or agree to confer benefits on the same beneficiaries.

In most circumstances you will be advised not to make a Mutual Will as they restrict your freedom to deal with your estate in the future and there can be uncertainty as to whether they remain valid by the time of a person’s death – if for example one of the other parties has revoked their own Will or has married causing the Will to be revoked.

More complex situations

In addition to specific types of Wills, there may also be more complex situations which need to be dealt with and which do not come within the ambit of a standard Will. These could include:

Wills for those who are in business

If you are in business as either as a sole trader or as a partner then you need to give thought to how any business assets will be dealt with on your death. You may also need to give thought as to making some provision for the continuation of the business if the full value of the estate is to be preserved. It is vital that an appropriate Will is drafted in these circumstances.

For more information see the YourWill section Wills for those in Business;

Wills for farmers

There are a range of issues which farmers need to consider dealing with in their Wills including ensuring not only that land and the assets of a farm are left in an appropriate manner, but also that the benefit of all tax reliefs, quotas, subsidies and grants are dealt with. Farmers also need to make sure that they plan ahead to make sensible succession arrangements and that the right decisions are made as to other inheritance planning and tax.

For more information see the YourWill section Wills for Farmers.

Wills for professionals

Many professional people, for example lawyers and accountants, need to ensure that the affairs of their clients are able to continue to be dealt with in the event of their death. Indeed, many professions have rules requiring those who are members to take all appropriate steps to ensure that the interests of clients are not put at risk in such an event

More information concerning this can be found in the YourWill section entitled Wills for Professionals.

Wills for co-habitees

If you live with someone but you are not married to them, or not in a civil partnership with them, then you need to make sure that both you, they and your children and step-children are provided for by Will in the event of the death of either of you. Those who do not make a Will may find to their cost that they do not inherit under the rules of intestacy and may be left in the position of needing to make an expensive claim through the Courts.

For more information about the position of co-habitees, go to the YourWill section entitled Wills for Co-habitees.

Wills for parents

If you have children or step-children for whom you are responsible, especially ones aged less than 18, then you need to be sure that they will be adequately provided for in the event of your death and that there will be someone to look after them until they are able to do so themselves. You must, therefore, make sure that your Will makes adequate provision by way of gifts and trusts and that a guardian is appointed who will be able to take care of their physical and moral welfare in the event that you are no longer able to do so.

You will find more information concerning this in the YourWill section Wills for Parents.

Wills for those with property abroad

If you own property in another country then you might find that the Will you make in England and Wales will not adequately deal with that property and you could find that the intestacy laws of the country where it is situated have the effect of passing that property to someone whom you would not have wanted to receive it. It is essential, therefore, that if you do own property in another country that you take appropriate steps to ensure it passes in accordance with your wishes.

For more information about how to deal with property abroad see the YourWill section entitled Wills for Those with Property Abroad.

1dispose of your property (called your “estate”)
- in such a way that it goes to those who need it, or whom you would like to have it – done by making gifts of property, money and residue;

2make arrangements as to who is to look after your estate
- achieved by the appointment of executors who will deal with your property after your death;

3make arrangements for someone to look after your children
- in the event that they are left without a parent you will need to appoint guardians who will look after your children in your place;

4make arrangements as to what is to happen to your body
- by stipulating the funeral arrangements you would like and whether you want your body to be donated to science.

We will look briefly at each of these below – although you will find more information elsewhere on the YourWill web site.

Your Property

There are a number of different ways of leaving property in your Will – it is up to you to decide what you want to do and what most closely achieves your wishes.

Essentially there are three main types of gift:

1. Specific gifts – that is to say gifts of specific items of property – a car, a stamp collection, a piece of jewellery, a painting or an item of furniture;
2. Pecuniary Legacies - that is to say gifts of money which can be made either with or without an adjustment for inflation;
3. Residuary gifts - that is to say giving everything that is left after tax and debts have been paid and after the gifts referred to above have been made.

However, things can get more complicated than that because there are a number of different ways in which each type of gift can be left in your Will. These include:-

• conditional gifts - where the gift is only made if certain circumstances occur;
• life-time gifts - where the recipient has the right to use something for their life-time only;
• gifts of groups of things - for example “all my jewellery at the date of my death”;
• contingent gifts – for example a gift which is contingent upon the recipient surviving you for 28 days.

Before you make your mind up as to what you want to leave and to whom you wish to leave it, there are a few additional matters you might need to think about:

• what is to happen if you leave a specific item to someone and then dispose of that item before your death?
• is there sufficient value in your estate to make pecuniary legacies and still leave sufficient for the person(s) you want to have your residuary estate?
• if you have a large estate, have you allowed for the fact that you are likely to incur inheritance tax and have you taken all possible steps to avoid that tax?
• if you are leaving the residue to a particular person, are you simply increasing their inheritance tax burden? Would it be better to leave things direct to that person’s children or grandchildren?
• have you made the best use of any tax exemptions – for example by making life-time gifts?
• have you made provision for everyone who is dependent upon you for their support? It is a costly exercise if they need to make an application against your estate for the support they need;
• if you have a business, have you made arrangements for the succession arrangements for that business?

You can find out more about the legacies and gifts you can leave in the Legacies and Gifts Factsheet.

Looking after your estate

Those who will look after your estate are called the executors and it will be there job to make sure that your property is distributed in the correct way.

You will need to specify in your Will who you want to act as executors and how many you want to appoint. You can appoint as many as you like, although only a maximum of four can act as executors at any one time. It is best to have two, or three at the most, and to think about naming two to act initially and to have two more in reserve in case the first two cannot or will not act in your estate.

As executor you can appoint your spouse, other family members or friends. Alternatively, if your estate is anything other than straightforward, you may feel it best to appoint a professional executor who understands the acts necessary to obtain a grant of probate, or a grant of letters of administration, and who can undertake the practical everyday issues of administering an estate. Richard Nelson LLP, the solicitors behind YourWill have an expertise in acting as a professional executor and will be happy to act as an executor – either alone or jointly with a spouse, relative or friend.

• For more information about executors go to the YourWill Factsheet Appointing Executors; or
• To find out about how Richard nelson LLP can act as your executor go to our Professional Executor Services section

Looking after your children

If you have children who are aged under 18 then you can, if you wish, make a provision which appoints one or more people to act as their guardians in the event that both of their parents should die, or a surviving parent becomes unable to care for them for whatever reason.

For more information about appointing guardians see YourWill Factsheet Guardians and Your Children.

Funeral arrangements

Thinking about what happens to your body after you die might seem gruesome but nevertheless it is important and those who have to deal with your estate will need to make a decision.

You will find more information about the kind of funeral and similar arrangements you can make in the YourWill Funeral Arrangements Factsheet.

Before you start the process of making a Will it is usually a good idea to write down all of the information you think you might need so that you have time to check details and make sure they are up to date.

There are a number of questions which you need to be thinking about before you start your Will. These include:

• what you own and what it is worth – this is an important first step as it will help you decide whether you need to worry about issues such as Inheritance Tax, trusts and so forth and may also affect how you leave your estate and the complexity of the Will you need to make. We deal in slightly more detail with valuing your estate further on in this item;
• who you would like to appoint as executors - this will include how many you want and whether you want to appoint a professional person as one of those executors. Again we look at the question of appointing executors in more detail further on in this item;
• whether you want to be buried or cremated - this can also include any other arrangements you wish to make in relation to the disposal of your remains including organ donation. For more information see our Factsheet entitled Funerals and your remains;
• whether you want to make any specific gifts of money or property - and if so to whom and in what circumstances. See our factsheet entitled Legacies and gifts for more information;
• what you want to do about any children under the age of 18 - especially in the event that you are the sole surviving parent or guardian. You will find more information about this in our Factsheet Guardians and your children;
• whether there is anyone else who has a call upon your estate - for example because you are responsible for looking after them or because they live with you. You will find out more about this in our Factsheet Claims against an estate;
• what you want to happen to the residue of your estate - that is to say the balance of your estate after all of your debts and any specific gifts have been paid. See our factsheet entitled Legacies and gifts for more information; and
• whether you want to make a provision for alternative recipients of your residuary estate - for example in the event that the person to whom you leave your residuary estate dies before you.

Valuing your estate

Before you think about drafting a Will you need to have a rough idea of what your estate is worth now and what it is likely to be worth on your death. The value of your estate could determine the complexity of the Will which you need to make, whether you need to think about making life-time gifts, whether you need to set up trusts and whether you need to consider insuring your life for the purposes of enabling your estate to pay any inheritance tax.

In reaching a valuation you need to take account of a number of issues:

Your home

You will need to get a valuation of your home. Bear in mind that you need to keep an eye on property values in your area as if they start to increase significantly this could push you over the threshold for Inheritance Tax. Also, be aware that if you own your home jointly with others as a joint tenant then it will not form part of your estate as it is owned jointly by all of the owners.

Stocks and shares

Any valuation which you get now will not necessarily be relevant when you die – it will depend upon the performance of those securities. Be alert to this and if the value of a stock holding starts to increase think about the effect this might have on inheritance tax.

Inheritances

If you are likely to inherit before your death then you may need to take steps now to plan for the effect that might have upon the value of your estate.

Pensions and life insurances

Think about the possibility of making an expression of wish in relation to these so that the value of them goes direct to a beneficiary rather than having to await probate.

Business assets or agricultural property

If you are the sole owner of a business or a partner in the business, then the value of your business assets may fall into your estate. You should also think about having a succession plan which does not simply come into effect after your death. Bear in mind the effects of business property relief, agricultural property relief and agricultural relief.

Debts and liabilities

Don’t just think about what you own – also think about what you owe or will owe and factor in any costs likely to be occasioned by your death – for example funeral expenses.

Appointing Executors

Everyone who makes a Will needs to have someone who will deal with their affairs after their death. This role is performed by the executors of the deceased.

It is the responsibility of the executors to take all of the necessary steps to give effect to the Will, and to ensure that the deceased’s estate is distributed in accordance with the Will.

Who you appoint as an executor is an important step since they will have the responsibility for looking after your estate when you die. You need, therefore, to give some careful thought as to you would like to do this for you and whether they will be able to cope with what can, in some circumstances, be an onerous responsibility. Remember that if there is no one whom you wish to appoint, or if you would like there to be someone who is used to dealing with the complexities of an estate administration, then Richard Nelson LLP is always happy to be appointed as a professional executor. To find out more about how we can assist go to our Professional Executor Services section.

There are some legal and some practical requirements as to whom you should appoint as executor.

So far as the legal requirements are concerned, your executors should be:

• 18 or over,
• of sound mind, and
• not in prison.

So far as practical considerations are concerned, you should give thought to the following issues:

• do they know enough about you and your estate to be able to deal with everything?
• are they sufficiently close to your home that they can, if necessary, handle any practical issues that arise? Appointing an executor who lives in Australia when you are in England may not be the wisest move;
• will the executor be able to cope with the complexities of your estate? If, for example, you have lots of share holdings and investments will they know what to do to administer the estate adequately?
• are they trustworthy and reliable and prepared to administer your estate impartially?
• is their appointment going to cause conflict within the family and if you appoint them are they going to be strong enough to stand up to the demands of other family members?
• are they likely to outlive you?

The most frequent choice of executor tends to be the spouse or civil partner of the testator, followed by a child or long-standing friend of the family. Despite what many people think, there is nothing to prevent you from appointing someone who is a beneficiary to be the Executor.

There are a few further matters which you might like to note:

• sometimes executors are referred to as personal representatives (although this tends to be more in relation to the administration of an estate on an intestacy),
• executors are often also the trustees of any property which is held in trust, for example for any children aged under 18 or any beneficiary not able to look after their own affairs,
• executors may also be appointed as the guardians of any children aged under 18, and
• a female executor will sometimes be referred to as an “executrix”, (although this is becoming less common).

Where you appoint a member of your family or a friend to be the executor, then it is not usual for them to be paid – although it is usual for them to be able to claim any expenses incurred by them in administering the estate and it is common for a gift to be included in the Will by way of thanks. However, where you appoint a professional executor then you must expect them to be paid for the work which they do. This payment will be made out of the estate before any residue is distributed.

You can appoint a professional person (for example a solicitor or accountant) to act as the executor of your estate – either alone or in conjunction with someone else such as a spouse of child. Although they will charge for that service they will have the advantage that they know how to deal with the estate in the most effective way and how to maximise the value of the estate. They will also have the benefit of being neutral and are unlikely to be intimidated by competing claims within the family, should they arise.

Professional executors have a number of other advantages too, including:

• they will not have to cope with the grief of the death whilst at the same time dealing with practical issues;
• their cost can often be made up in savings in time, problems and tax;
• if they are solicitors they will be subject to strict rules of conduct and carry professional insurance in case a problem arises with their services;
• if they are solicitors or trust corporations they can make probate applications by post – otherwise a personal attendance is required;
• if the estate is a complex one a private executor may in any event have to appoint a solicitor or accountant to assist in obtaining the grant and distributing the proceeds;
• if there is a house or land that needs to be sold they can deal with the conveyancing as part of the work they do; and
• they will understand, and be able to deal with, any inheritance tax issues which arise.

As already mentioned, the Richard Nelson LLP specialist probate and administration team can give you the comfort and reassurance of an excellent service provided by a professional firm of solicitors.

You can find out more about the duties of executors in the YourWill Duties of Executors Factsheet and you can find out about how an executorship can be refused in the YourWill Factsheet Renouncing Executorship .

]]> http://www.your-will.com/planning-your-will/feed/ 0 http://www.your-will.com/what-if-i-have-no-will/?utm_source=rss&utm_medium=rss&utm_campaign=what-if-i-have-no-will http://www.your-will.com/what-if-i-have-no-will/#comments Wed, 23 Mar 2011 20:00:25 +0000 actonDunc http://www.your-will.com/?p=2557 Find Out More]]> Dying without a Will not only can lead to more complications and extra work for those who have to deal with your estate but can also lead to the wrong people benefiting from your estate and those whom you wanted to benefit losing out altogether.

If you die without having made a valid Will then you will be regarded as having died “intestate” and rules laid down by the law, known as the intestacy rules, will dictate who is likely to benefit from your estate. We will look at these in a little more detail shortly.

From a purely practical point of view, dying intestate has a number of undesirable consequences. These can include:

• no control by you over how your estate is distributed and who gets what;
• no certainty as to who will look after your estate and deal with your affairs;
• often more work for those who are left with the responsibility of dealing with your affairs;
• problems for unmarried couples or same sex couples not in a civil partnership;
• property can pass to a spouse from whom you are separated but not divorced;
• property may not go to the children of a partner with whom you are living but not married;
• you may pay more inheritance tax than you need to;
• property may have to be sold to pay beneficiaries at the expense of another; and
• if you have no close relatives and you are not married, the your whole estate could go to the Crown

Even if you have made a Will, the rules of intestacy may still apply to your estate, either in whole or in part. Thus, your Will may fail because, for example, it has not been validly made or if you have failed to dispose of the whole of your estate. Normally including a clause disposing of the residue of your estate (that is to say, everything not otherwise disposed of by the Will) is going to prevent parts of your estate from failing to be disposed of, but it does highlight the need to ensure that your Will is validly made in the first place.

The rules of intestacy

If a person dies without a valid Will then the rules of intestacy will be used in deciding who inherits their estate. Please note that the detailed provisions of the rules do change from time to time – the ones set out below applying to a death after 1st February 2009 – so do not assume that the rules below will always be the ones that apply. If the person died before then the intestacy rules current at the date of death Will apply. Also you should be aware that these rules apply to intestate estates in England and Wales – the rules for Scotland and Northern Ireland are different. If in doubt, contact YourWill so that we can advise you fully.

Who inherits under an intestacy can seem complicated since it depends not only upon who survives the deceased but also upon whether the deceased was married or in a civil partnership and whether they had children at the relevant time. To help you understand this we have produced an Intestacy Flowchart – click on the image to view the flowchart as a pdf.

The intestacy rules envisage four separate sets of circumstances potentially applying to someone who dies without making a Will, namely:

1Married with children
note that those who are separated are treated for the purposes of these rules as if they were still married

2Married with no children
but with parents and/or brothers and sisters

3Married with no children
but with no parents or brothers and sisters alive

4Single, widowed or divorced
note but not just separated – which would count as married.

1. Married with Children

If you are married or in a civil partnership and you have children then the following rules will apply:

Your spouse/civil partner gets:

1. your personal items – e.g. household items, jewellery and cars – but not business items;
2. the first £250,000 of your estate; and
3. a life interest in half of the remainder of the estate – in other words a right to receive the interest on any capital but not the capital itself

Note that the spouse/civil partner must survive the deceased for 28 days. If the spouse/civil partner dies before the end of that 28 day period then the estate will pass if the spouse/civil partner had not survived the deceased person.

Your children (but not your step children) get:

1. the other half of the remainder of the estate outright on reaching the age of 18 or marrying before that; and
2. the other half of the remainder after the death of the spouse or civil partner

Note that if there is more than one child, then each child will be entitled to an equal share. If a child has predeceased the intestate then their estate will not receive a share but if they have died leaving children (or grandchildren) of their own then the child will take the share the parent would have taken had they been alive, and if more than one in equal shares.

2. Married with no children

If you are married or in a civil partnership and you do not have children then the following rules will apply:

Your spouse/civil partner gets:

1. your personal items – e.g. household items, jewellery and cars – but not business items;
2. the first £450,000 of your estate; and
3. half of any excess over £450,000 outright.

Note that the spouse/civil partner must survive the deceased for 28 days. If the spouse/civil partner dies before the end of that 28 day period then the estate will pass if the spouse/civil partner had not survived the deceased person.

Your parents or if they are not living your brothers and sisters get:

1. Balance of the excess over £450,000

Note that the surviving parents will get the excess first. Only if neither parent survives will the estate pass to brothers and sisters (who must have shared the same two parents as the intestate) and if they have predeceased the intestate leaving children, then those children will take in equal shares the share which their parent would have taken.

3. Married or in a civil partnership with no children, parents , brothers or sisters

If you die leaving a spouse or civil partner and and you have no children, parents, brothers or sisters and there are no children of any brothers or sisters still living, the your spouse/civil partner will get everything.

4. Single, Widowed or Divorced

If you are single, windowed or divorced (note separated but not divorced counts as married for these purposes) then your estate will be go as follows:

1. to your children,
2. if there you have no children, then to your parents,
3. if your parents have both predeceased you, then to your brothers or sisters,
4. if no brothers and sisters, then to your half-brothers and half-sisters,
5. if no half-brothers or half-sisters, then to grandparents,
6. if no grandparents, then to aunts and uncles,
7. if no aunts and uncles, half-aunts and half-uncles,
8. if no half-aunts and half-uncles, to the Crown.

Note that in all cases if there is more than one person in any group, then they take equally between them, that if the members of any of the groups other than grandparents have predeceased the intestate then their children will take equally the share their parent would have taken and that if any member of any of the groups is under the age of 18 their share will be placed in trust until they reach the age of 18 or marry at an earlier age.

It is worth noting in particular:

• children means direct descendants of the deceased person – so includes grandchildren and great-grandchildren – but does not include step children. Note however, that the deceased did not have to be married to the mother or father of the child;
• adopted children are treated for the purposes of intestacy as being the children of the deceased rather than the children of their natural parents;
• if the deceased was co-habiting with someone else, (i.e. they were not married and had not entered into a civil partnership) then their partner will not inherit under the intestacy – they would have to make an application under the Inheritance (Provision for Family and Dependants) Act 1975 on the basis that “reasonable financial provision” has not been made for them (for more information on this see the YourWill Factsheet entitled Claims against an estate. It is worth bearing in mind that these claims can be time-consuming and costly, so it is far better to provide for the co-habitee by Will.
• if the deceased owned a property jointly with another person as joint-tenants (as opposed to tenants-in-common) then that property will not fall into the estate for the purposes of the £250,000 and £450,000 limits referred to above.

]]> http://www.your-will.com/what-if-i-have-no-will/feed/ 0 http://www.your-will.com/contents-of-a-will/?utm_source=rss&utm_medium=rss&utm_campaign=contents-of-a-will http://www.your-will.com/contents-of-a-will/#comments Wed, 23 Mar 2011 19:00:54 +0000 actonDunc http://www.your-will.com/?p=2936 Most Wills have a relatively standard layout made up of a number of separate, although inter-related, parts. The following deals with the more usual parts of a basic Will and the things they do.

Wills normally have a fairly logical structure and are broken down into a number of sections, each of which has a specific function. Those sections are usually:

• Identifying whose Will it is
• Revocation of earlier Wills
• Appointment of Executors
• Appointment of trustees and guardians
• Gifts given by the Will – both of property and of money
• What happens to any residue after debts, expenses and gifts have been paid
• Setting up any trusts which are needed
• Funeral Arrangements
• The date, signing and witnessing

Whose Will is it?

Normally the first part of a Will is the one which sets out whose Will it is and, to ensure that there is no room for doubt or ambiguity, where they live.

It does not matter if the person’s address changes – the Will does not become invalid. It is simply a way of showing that this is the Will of the person named who, at that date, was the one living at that particular address and not another person with a similar name. This might seem obvious, but if there are a number of Wills all stored together and more than one person has the same name then it may be necessary to identify which particular person with that name owns that particular Will.

Revocation clause

Most Wills continue by stating that they are the last Will of the person making it (known as either a “testator” if it is a man or, less commonly today, a “testatrix” if it is a woman) and that the Will is intended to revoke all previous Wills that the person has made. Sometimes they also use the word “testament” to describe the Will, but again this is becoming less common.

The revocation clause is important to include otherwise there could be confusion as to which set of instructions should, for example, deal with the same item of property or the residue under the Will. However, care needs to be used in dealing with revocations. For example, if the testator has made a Will in another country to deal specifically with property in that country so as to comply with inheritance rules there, then there may not be an intention that that Will should be revoked by the Will being made in this country.

You should also be aware that if you have made any gifts in an earlier Will and you want those gifts to continue then you must repeat them in the current Will for those gifts to take effect.

Appointing executors

An “executor” (or, again less commonly, “executrix” to describe a female executor) is the person or persons whom the testator wants to deal with their estate when they die. It will be their job to work out what the person owns, gather all of the possessions in (not necessarily physically but knowing where they all are, which bank accounts contain money and so forth), pay off any debts and expenses surrounding the death, and then distribute what is left according to the instructions in the Will.

The appointment clause will normally name alternative executors in the event that the first named ones decide they are not able to deal with the estate (or “renounce probate” as it is sometimes called) or die before the testator. There is nothing to prevent the executors from also being beneficiaries under the will and it is common for one of the executors at least to be a spouse of the testator.

However, the testator can also appoint a professional executor – that is to say a person who deals with estates as their job. Normally this will be a solicitor. Richard Nelson LLP, who have experience in dealing with probate and estates, will be happy to act as your executor, either alone or jointly with another person, if you wish. For more information go to Professional Executor Services.

It is a good idea to state the address of the executor at the date the Will was made to clearly identify them. It is also a good idea to check with them first to make sure that they are happy to be executor.

You might like to include a clause which provides that if your executors are not professional executors then they do not have any legal liability for any acts and omissions other than those which are fraudulent or grossly negligent. Non-professional executors will be unlikely to carry insurance against such acts and it just make them more willing to take on the role knowing that one of the beneficiaries cannot bring proceedings against them. Generally, clauses of this kind are not regarded as being void on public policy grounds.

For more information about choosing your executors see the YourWill Factsheet Planning your Will and for more information about the role that executors need to perform see the YourWill Factsheet The duties of executors.

Appointing trustees and guardians

If the Will contains a provision which has the effect of “delaying” the date upon which a person receives a gift under the Will, for example where the testator has young children who need to be looked after until they are 18, then a legal device known as a trust will be created. Where there is a trust then there will need to be “trustees” to look after it. The Will can appoint either separate trustees to do this or it can simply give the role to the executors who will take on both roles. As with executors, the testator can appoint alternative trustees and can appoint a professional person or firm to act as trustee.

In addition to trustees, where there are young children, the Will can also appoint guardians to look after the children should both parents die before they reach the age of 18. As with executors and trustees, alternative guardians can be appointed. Often a Will separates the role of guardian from that of trustee so that one person has the responsibility for bringing up the children whilst another has control of any money. Often this is felt to be a valuable safeguard against fraud on the part of a guardian.

It is a good idea to state the address of the trustees and guardians at the date the Will was made to clearly identify them. It is also a good idea to check with them first to make sure that they are happy to be a trustee and especially important to check that they are happy to look after your children.

The duties and powers of the trustees will either be set out in the body of the Will or in a Schedule to it.

For more information about Guardians and Trustees see the YourWill Factsheet Guardians and Your Children.

Gifts

It is usual for the next clause in a Will to deal with gifts under the Will. These can be either gifts of specific items of property or gifts of sums of money. Often these are known as legacies.

Gifts can be given to specifically named people, for example “my son John Smith” or to groups of people, for example “my grandchildren living at the date of my death”.

Gifts can also be made subject to conditions. Thus a gift might be “to X on reaching the age of 18” or “to Y provided she survives me by 28 clear days”. The gift can even have a substitutional clause so that if the first beneficiary of the gift dies before the testator, the gift will not fail but be given to someone else – for example the children of the first named beneficiary.

A beneficiary does not have to be a person. It can also be a body such as a charity, university, school, or even a cats home.

For more information about Gifts see the YourWill Factsheet Legacies and Gifts.

Residue

Anything which has not been paid out by way of payment of debts and expenses of the estate or given to beneficiaries by way of a gift Normally will form what is known as the testator’s “residuary estate”.

The next clause will usually deal with that residue.

It is common for the residue to be left to one person or group of people as shall survive the testator by 28 days and in the event that they do not survive then to someone else. Thus, for example, where the testator has a spouse and children it may be left to the spouse if he or she survives the testator and then to those of the testator’s children as shall be living at the date of his or her death, and if more than one in equal shares. Sometimes it might also provide that if any child shall die before the testator leaving children of their own (i.e. grandchildren of the testator) then they will take the share their parent would have taken.

For more information about residuary gifts see the YourWill Factsheet Legacies and Gifts.

If the Will does not contain substitutional instructions for the residue and the gift lapses then, even though there is a Will the residue will pass according to the rules of intestacy.

See the YourWill Factsheet What if I have no Will for details of how the estate will pass under the Rules of Intestacy.

Funeral arrangements

Although it does not need to be included, the Will can contain provisions setting out whether the testator wants there to be a funeral, whether he or she wishes to be buried or cremated, whether they want organs to be donated for scientific research and so forth.

Unlike the rest of a Will, these are merely an expression of preference on the part of the testator and are not legally binding on the executors.

Many people prefer, rather than including the information in a public document (which is what a Will becomes after it has been admitted to probate), to put instructions such as this in a declaration of wishes or letter to the executors. You will find a form for making a declaration of wishes in the Make you online Will section of this web site.

For more information about funeral arrangements please see the YourWill Factsheet entitled Funerals

Date and attestation

Wills normally end with a clause stating that the Will has been signed by the testator and the date upon which this occurred followed by a clause stating that it has been signed in the presence of two witnesses present at the same time and who have signed as witnesses in the presence of each other.

This may need to be amended if there are unusual circumstances to the way in which the document has been signed. For example, if the testator is blind there may need to be a clause stating that the Will had been read to the testator, or if the testator is unable to sign the document themselves that they have directed someone else to sign it on their behalf.

For more information about the legal requirements for signing and witnessing a Will go to the YourWill Factsheet entitled Signing and Witnessing Wills.

]]> http://www.your-will.com/contents-of-a-will/feed/ 0 http://www.your-will.com/legacies-and-gifts/?utm_source=rss&utm_medium=rss&utm_campaign=legacies-and-gifts http://www.your-will.com/legacies-and-gifts/#comments Wed, 23 Mar 2011 18:00:08 +0000 actonDunc http://www.your-will.com/?p=2991 The main purpose of a Will is to ensure that your estate goes to those whom you wish to receive it. This is achieved by making legacies and gifts in your Will.

It is important that you give careful thought as to who is going to benefit from your estate when you die since the instructions you leave in your Will are going to be binding upon your executors. Unless your beneficiaries agree amongst themselves to vary the terms after your death, then what you put in your Will now may have a profound effect.

Under the law of England and Wales there are essentially three types of gifts which you can make under your Will:

• a specific legacy – an item of property,
• a pecuniary legacy – a sum of money, or
• a residuary legacy – whatever is left after debts of the estate and specific and pecuniary legacies have been paid.

Specific Legacies

A specific legacy or gift is a gift of an item of your property as opposed to money. For example you may wish to leave your stamp collection to a nephew or your gold wristwatch to your god-daughter.

If you make a gift to someone of a specific item which you own at the date of the Will and you subsequently dispose of it before your death then the gift will fail and the beneficiary will receive nothing. Even if the money from the sale of the item is still identifiable – for example because it has been paid into a particular bank account on the date of the sale and then not touched subsequently – the beneficiary will not be entitled to that money.

However, if you make a gift of a specific item that you do not own at the date of the Will and you do not subsequently acquire it prior to your death then there is a duty upon the executors to acquire the item, wherever possible, and to pay for it from the estate of the deceased. A specific gift of this nature will only fail if it is not possible to acquire the item. Thus, if the Will states that a beneficiary is to receive shares in a particular public company then those shares would need to be purchased. However, if the company had ceased to exist then there would be no duty upon the executors of the Will to acquire them.

The gift of a specific item can also fail if it is not possible to identify the item in question or the recipient of the item. Thus, if the Will states that the testator leaves their sapphire broach to their god-daughter, but does not specify which of the 10 sapphire broaches owned at the date of death, or does not specify which of the testators 7 god-daughters is to receive it, then the gift will fail and all of the broaches will simply form part of the residuary estate.

A specific gift can also fail if the beneficiary fails to meet a condition imposed upon the gift. Thus if a Will leaves a particular item on the condition that the recipient reaches the age of 18 and the recipient dies before that age, even though the testator has died before them, then their estate will not receive the gift. Note, however, the limitations on making gifts subject to conditions (see below).

A specific gift will also fail if the beneficiary has predeceased the testator or if the beneficiary has survived the testator but failed to survive for long enough afterwards to satisfy a condition in the Will.

Pecuniary Legacies

A pecuniary legacy is simply a gift of money and will be paid by the executors from the estate – either using existing cash or bank accounts or from the proceeds of sale of assets if this is necessary to realise the sum in question.

As with a specific legacy, there are a number of circumstances in which a pecuniary legacy will fail. These include:

• if it is not possible to identify the recipient,
• if the estate does not have sufficient funds to pay the legacy,
• if you make the gift subject to conditions, and those conditions are not met,
• if the beneficiary predeceases the testator or fails to survive for any period specified in the Will.

Substitutional Gifts

If a testator wants to take steps to prevent a gift from failing then one of the steps they can take is to include what is known as a substitutional gift – that is to say a gift that will come into effect only if the primary gift fails.

An example of a substitutional gift would be where a sum of money to a particular beneficiary but the gift included a provision that in the event that the first beneficiary should die before the testator, but leaving children alive at the date of the testator’s death, then those children would take the gift their parent would have received.

Divorce or dissolution of a civil partnership

If a testator leaves a gift to a spouse or civil partner and they divorce or the civil partnership is dissolved prior to the death of the testator, then the gift to the spouse or civil partner will fail unless the Will specifically states that this is not to happen.

Your Residuary Estate

A residuary estate is that which is left after all of the debts and expenses of the estate have been paid and all of the specific and pecuniary gifts have been made.

It can be made up of a house (or the proceeds of sale of a house), money at the bank, money received from life policies, personal belongings, stocks and shares – in fact any item that has not been left to a specific beneficiary and any money that has not been left to pecuniary beneficiaries.

It is essential that your Will disposes adequately of all your assets and a residue clause will normally achieve this since, anything not paid out by way of expenses, debts and legacies will fall into the residue and pass to whoever is entitled to that residue.

However, it is still possible for the Will to fail if it is not clear to whom the residue should be left or the person to whom it should be left has predeceased the testator or failed to satisfy a condition in the Will. It is essential, therefore, that suitable substitution clauses are included – for example by leaving the residue to a spouse or civil partner, and if he/she fails to survive you to your children in equal shares and to their children (your grandchildren).

Imposing conditions in your will

You are entitled, if you wish, to impose conditions on the gifts which you make in your Will.

Normally the conditions imposed will be fine and will simply provide, for example, that a person must reach the age of 18 before they can receive a gift or must outlive the testator by 28 days.

However, some conditions are not regarded as being acceptable and if you attempt to impose them on beneficiaries they will either be regarded as being void or will simply not take effect.
Some conditions are regarded by law as being against public policy whilst others are deemed simply to be undesirable.

What would amount to an unacceptable condition would depend upon the circumstances and the Will itself. However, in the past, the courts have held that the following constitute conditions that would not be upheld:

• a requirement that the beneficiary commit a crime;
• a condition designed to encourage a husband and wife to separate;
• an unreasonable restraint of marriage;
• a condition that was motivated by or incited racial prejudice;
• conditions which, if performed, would cause unnecessary suffering or discomfort to the beneficiary;
• conditions not to associate with specified individuals; and
• conditions not to marry any one not of a particular faith.

]]> http://www.your-will.com/legacies-and-gifts/feed/ 0 http://www.your-will.com/signing-and-witnessing-wills/?utm_source=rss&utm_medium=rss&utm_campaign=signing-and-witnessing-wills http://www.your-will.com/signing-and-witnessing-wills/#comments Wed, 23 Mar 2011 17:00:44 +0000 actonDunc http://www.your-will.com/?p=2999 In order for your Will to be valid and legally enforceable it must be signed and witnessed in the correct manner. Your Will can be witnessed by almost anyone – it does not have to be a solicitor, court official or other professional person – it does have to be someone who can be relied upon.

For that reason it needs to be signed by someone who is aged 18 or over and who is not:

• Referred to in the will as a beneficiary, executor, trustee or guardian,
• Likely to benefit under the will, even if not directly named (for example the children or grandchildren of a beneficiary)
• the spouse, civil partner, or other partners of anyone named in the Will,
• blind (otherwise they cannot witness the Will being signed),
• lacking the necessary mental capacity.

However, the witnesses do not need to be independent of each other. Thus a married couple or business partners could witness the Will.

The testator should, before signing, read through the Will and ensure that he or she understands it, that the gifts made are correct and given to the right people, that names and addresses are correct.
The witnesses, however, do not need to read the Will – merely to witness that the testator has signed.

There are, also, a number of formalities to the way in which the Will needs to be signed and witnessed. These include:

• The person signing the Will and both witnesses must be present in the same place at the same time as the Will is signed;
• The testator must sign the Will in the presence of both of the witnesses – it is not enough for the testator to sign the Will not in the presence of both of them (for example before they have both arrived at the place where the Will is to be signed) and then confirm that it is his or her signature;
• Each witness must then sign the Will in the presence of the testator and the other witness.

Although there is no legal requirement in England and Wales to do so (the situation is different in Scotland and some other jurisdictions), if the Will is more than one page long then ideally the testator should sign at the bottom of each page to show that nothing has been added at a later date. The Will must also be dated with the date that it is signed and witnessed.

Under no circumstances attach any other documents to the Will – especially using paper clips, pins or other fasteners. This applies even if it is only temporary – for example a covering letter or a memo. If it appears that a document has been attached to the Will and that document is no longer attached, then it could call the Will into question if it is believed that there may have been a Codicil made after the date upon which the original Will was signed but that Codicil has been removed for fraudulent purposes.

If the testator is blind or partially sighted, or for any other reason unable to read the Will, then one of the witnesses should read the Will allowed to the testator, in the presence of the other witness. The witness doing the reading should add an additional statement to the Will confirming that this has been done and that the testator appeared to understand the terms of the Will. If the testator is also unable to sign the Will then another person can sign on their behalf but the Will would need to be amended to reflect this fact.

]]> http://www.your-will.com/signing-and-witnessing-wills/feed/ 0