Wills

Why do I need a Will?

Don’t let time be the last thing you regret wasting…

Last year, approximately 74% of the people in the UK, did not leave a Will, reducing the value of their family’s inheritance and causing untold problems and additional costs.

Don’t let time be the last thing you regret wasting…

  1. Without a Will your husband or wife may not automatically inherit your entire estate.
  2. Without a Will your partner would receive nothing if you are unmarried, as the law treats you both as single.
  3. Without a Will you cannot prevent your family being liable for a large tax bill of up to 40% on whatever exceeds the inheritance tax allowance.
  4. Without a Will, guardianship of any children you have under18 may be unclear, leaving the courts to decide their welfare.
  5. Without a Will your beneficiaries may turn to a solicitor who will deduct a fee from your estate.
  6. Without a Will you may end up leaving your property and possessions to somebody you had not intended to, such as an estranged spouse.

But where there is a Will there is a way for you to control what happens. It spells out what you want, leaving you safe in the knowledge that you’re chosen beneficiaries will reap the benefits of your life’s work, rather than the Inland Revenue.

Who do I notify first?

When someone dies it can be a very difficult and confusing time and you cannot be expected to do everything right away.

In the first five days it is important that you do the following:

  • notify the deceased’s family Doctor
  • contact a Funeral Director to commence funeral arrangements (you will need to check any Will for any special requests or Pre-Paid Funeral arrangements which may have already been made)
  • register the death at The Registry Office
  • advise any departments who may have been making payments to the deceased, such as Tax Credits, benefits, pensions etc

As soon as possible you should:

  • contact the Executors of any Will to enable them to start the process of obtaining Probate
  • if there is no Will the you should decide who will apply to sort out the deceased’s affairs and apply for Letters of Administration.

You will also need to contact relatives and people close to the deceased for a full list of who to contact go to http://www.direct.gov.uk/ select Government Citizens and Rights – then Death and Bereavement and What to do after a Death.

 

If the person who has died leaves a will

In this case one or more ‘executors’ may be named in the will to deal with the person’s affairs after their death. The executor applies for a ‘grant of probate’ from a section of the court knows as the probate registry. The grant is a legal document which confirms that the executor has the authority to deal with the deceased person’s assets (property, money and possessions). They can use it to show they have the right to access funds, sort out finances, and collect and share out the deceased person’s assets as set out in the will.

If the person who has died didn’t leave a will

If there is no will, a close relative of the deceased can apply to the probate registry to deal with the estate. In this case they apply for a ‘grant of letters of administration’. If the grant is given, they are known as ‘administrators’ of the estate. Like the grant of probate, the grant of letters of administration is a legal document which confirms the administrator’s authority to deal with the deceased person’s assets.

If someone dies without making a will, they are said to have died ‘intestate’. If this happens, the law sets out who should deal with the deceased’s affairs and who should inherit their estate (property, personal possessions and money). This information covers England and Wales only.

When someone dies without leaving a will, dealing with their estate can be complicated. It can also take a long time – months or even years in some very complex cases.

Who can deal with the deceased person’s estate?

Usually a close relative like a spouse, child or parent will have the legal right to sort out the estate of the person who has died.

Applying for a Grant of Letters of Administration

In order to be able to administer someone’s estate you normally need to apply to the Probate Registry for a ‘Grant of Letters of Administration’.

On receipt of the grant you become the ‘administrator’ of the estate. The grant provides proof to banks, building societies and other organisations that you have authority to access and distribute funds that were held in the deceased’s name. The overall process is often referred to as ‘obtaining probate’, though technically this term applies where there was a will.

These grants appoint people known as “Personal Representatives “ to administer the deceased persons estate.

When a grant is needed

A grant is almost always needed when the person who dies leaves one or more of the following:

  • £5,000
  • stocks or shares
  • certain insurance policies
  • property or land held in their own name or as ‘tenants in common’

In most cases above, the bank or relevant institution will need to see the grant before transferring control of the assets. However if the estate is small some organisations, such as insurance companies and building societies, may release the money to you at their discretion.)

When a grant may not be needed

If the deceased’s estate is below £5,000, and doesn’t contain any land, property or shares, then it may be possible to deal with it without obtaining a grant. Also, a grant might not be needed if the whole of the estate is held in joint names and passes automatically to the surviving joint owner.

In some cases, for example, where the person who benefits is a child, the law states that more than one person must act as the administrator.

To establish whether the assets can be obtained without a grant, the executor or administrator would need to write to each institution informing them of the death and enclosing a photocopy of the death certificate (and will if there is one).

The personal representative won’t be granted probate until some or all of any Inheritance Tax that is due on the estate has been paid.

Applies to England and Wales.

If the person who died lived in Scotland you must apply for a ‘grant of confirmation’.

 

The Rules of Intestacy

If you do not leave a valid will your estate will pass in accordance with the Intestacy Rules.

The Intestacy Rules set out who is entitled to inherit from your estate if you do not leave a valid will. If you do not leave a Will your money and possessions will be distributed according to the Intestacy Rules laid down in the Administration of estates Act 1925. If you have no relatives the Crown is entitled to take everything.

If you are married, or in a civil partnership, the first person entitled to your estate under the Intestate Rules is your spouse/civil partner, but he or she will not necessarily inherit the whole of your estate (the Civil Partnership Act 2004 came into effect on 5th December 2005 and gave same-sex couples the right to register their partnerships, giving them broadly the same legal rights as married couples).

The amount your spouse/civil partner would inherit depends on how much is in your estate and which of your blood relatives survive you. Assets held in joint names usually pass automatically to the other joint owner(s) and do not form part of your estate

 

Who can make a Will?

Quite simply anyone over the age of 18 who is of sound mind however:

  • it is possible for members of the armed forces to make a Will under the age of 18 (advice should be sought in these circumstances)
  • under the provisions of the Mental Health Act 1983, the Court of Protection may approve the making of a Will, or a Codicil to a Will for someone who is mentally incapable of doing so themselves. Guidance about how a mentally incapable person can make a Will can be obtained from the Public Guardianship Office website:
    http://www.publicguardian.gov.uk/ Court of protection page.

What happens if I don’t make a Will?

This is called dying Intestate. There are specific rules of intestacy which set out who will inherit and how much, if you do not leave a valid will, this may not be what you would have wished.

Is making a Will difficult?

No. You need to make a list of your property and assets and consider who you wish to benefit from your estate, ensuring provision has been made for dependant relatives. You should also consider who you would want to look after your children (Guardians) if they were still young.

What makes a Will valid?

  • it should be in writing, appoint someone to carry out the instructions of the Will (an Executor) and dispose of possessions / property
  • it must be signed by the person making the will (the Testator), or signed on the testator’s behalf in his or her presence and by his / her direction. This must be done in the presence of two witnesses who must sign the will in the presence of the Testator

Who can be a witness?

Anyone who:

  • is not blind
  • is capable of understanding the nature and effect of what they are doing
  • is aged 18 or over

A witness should NOT be:

  • a beneficiary in the will
  • married to, or be the civil partner of a beneficiary

In these circumstances the Will remains a valid and legal document, but the gift to the beneficiary cannot be paid.

Can I state what happens to my body in my Will?

Lots of people shy away from discussing their funeral arrangements with family and friends, so making a Will is a good way of letting people know whether you wish to be buried, or cremated and any specific requests you might have for your funeral service.

However, it should be noted that your Executors are under no obligation whatsoever to carry out funeral wishes requested in your will.

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