Wills Trusts and Probates

by Access Legal

Wills Trusts and Probates


Modern life can seem so complicated, but you can make it simpler for your family by ensuring you have Wills drawn-up and that your wealth is looked after by people who have your best interests at heart, like the ones at Access Legal from Shoosmiths.

What is a Will?

A Will is a legal document that comes into effect on your death.  It dictates to whom your Estate (i.e. your financial assets) will pass and it appoints Executors who will handle the administration of the Estate.  It also enables you to appoint Guardians to look after minor children in the event of your death.  A Will must be made and witnessed properly to be valid.

Do I need a solicitor to make a Will?

Yes, it is always recommended that advice is sought from a legally qualified professional before making a Will.  Only then can you be sure of the various options available to you to enable you to make the right decisions to protect and provide for your loved ones on your death.  You also have the peace of mind that, should something go wrong, a Solicitor is fully insured and regulated.

What can I do in a Will?

By making a Will, you are in control of decisions such as whom to appoint as your Executors.  You can also appoint Guardians to look after any minor children you may have. Most importantly, you can decide to whom to leave your 'Estate' (your financial assets).  You can also give instructions on issues such as funeral wishes and what should be done with your household goods and personal chattels.  You can also make gifts to charities if you wish.  You can make outright gifts (no strings attached) or can make gifts of assets into trust (strings attached).

What can't I do in a Will?

Your Will cannot dispose of any property you own with another as 'Joint Tenants'.  Any such property will, on your death, pass automatically (by what is called the 'law of survivorship') to the surviving joint owner(s), irrespective of what your Will says.  If you have any doubt as to whether any joint property you co-own is held as Joint Tenants or is in fact available for you to dispose of by Will, advice should be sought from your Solicitor.

What if I don't make a Will?

If you die without leaving a valid legal Will, you are said to have died 'Intestate'.  The law (which hasn't changed significantly since 1925) dictates who will inherit your Estate and in what proportions.  The law also decides who will have responsibility for administering your Estate (your Personal Representatives).

What happens to property in joint names?

Property can be held jointly in two ways; either as 'Joint Tenants' or 'Tenants in Common'.  If held as 'Joint Tenants', property passes automatically by the Law of Survivorship to the surviving co-owner(s).  If held as 'Tenants in Common', you are free to leave your share of the property under the terms of your Will i.e. it does not pass automatically to the surviving co-owners.  If you are in any doubt as to the way in which property is owned, consult your Solicitor.

Can I change my Will?

Yes, your Will can be changed at any time, provided that you have the required mental capacity to make the changes.

Can I cancel my Will?

Yes, you can cancel your Will either by destroying it or by making another Will (this has the effect of automatically revoking a previous Will).  If you marry or enter into a Civil Partnership, this will cancel your Will.  Parts of your Will are also cancelled if you divorce or dissolve your Civil Partnership.

Does marriage/entering into a civil partnership affect my Will?

Yes, if you marry or enter into a civil partnership, your Will is revoked.  This is because there is an assumption that you would wish to provide for your new spouse or civil partner.  There is an exception to this rule if you have made your Will 'in anticipation of' marriage / entering a civil partnership.  If you are in any doubt about this, consult your solicitor for advice.

Does divorce/dissolution of civil partnership affect my Will?

Yes, if you divorce or your civil partnership is dissolved, any Will you have made is revoked but only to the extent that your ex-spouse or ex-partner is referred to.  For example, any appointment of your ex-spouse or ex-partner as an Executor or beneficiary is revoked.  However, your Will may still be valid and, again, you should consult your Solicitor for advice.

What should I include in my Will?

Your Will should include crucial components such as a revocation clause, appointment of Executors, any gifts of sums of money or particular items and a gift of the residue of your Estate (i.e. what is left after debts, administration expenses and legacies have been paid).  It should also contain a signature (attestation) clause.  There are formal requirements for various parts of your Will and you should always consult a Solicitor.

How long is a Will valid for?

Your Will lasts as long as you do i.e. it comes into effect on your death.

Who can make a Will?

Anyone over the age of 18 can make a Will, provided that they have the required mental capacity.  There are special circumstances in which a soldier or sailor or airman on active military service can make a Will, though under the age of 18 years.  Specialist advice should be sought in these circumstances.

Where should I keep my Will?

Your Will should be kept in a safe and secure place, free from the risk of fire or water damage. Ideally, it should be lodged with your Solicitor so that they can store it in a fire proof strong room.

What if someone dies to whom I have left a gift in my Will?

Much will depend on the wording of your Will. If the person dies before you do and there is no substitute person named to inherit the gift, the gift fails and the gift falls into the residue of your Estate, to be distributed according to the gift of residue.  If there is a substitute beneficiary named, that person will inherit the gift in place of the beneficiary who has died.

Who can dispute a Will?

A Will can be challenged on several grounds such as the fact the person making the Will (the Testator) lacked mental capacity to do so, or that the Testator was being unduly influenced to make the Will in its terms.  Any interested party can make such a challenge but will be tasked with proving their allegation and overturning the Will.  Otherwise, a relative or other person who expected to be provided for can challenge a Will.  However, this is subject to strict rules and it is not simply the case that any disgruntled family member can challenge a Will.  Specialist advice should be sought.  For more information regarding contesting a will, visit our page.

When should I review my Will for possible changes?

Some people make one Will which is comprehensive enough to provide for all eventualities. Others revise their Will every few years.  It will depend on your family & financial circumstances as to how often you need to revise your Will.  A good 'rule of thumb' is to review your Will every three years or when your family or financial circumstances change, if sooner.  Some common events that trigger a review of your Will are marriage/civil partnership, divorce/dissolution, death, the birth of children or grandchildren and retirement.

My partner has already made a Will.  Should I consider making one, too?

Yes. Wherever possible, partners should be encouraged to make Wills at the same time as each other so that they are able to put in place protection for each other on the same terms.  However, it is not essential that the Wills are made at the same time; just that each partner makes a Will and carefully considers the needs of his or her partner.

I've already made a Will but I want to change it. Should I just add the changes to the Will I've made?

No.  Any changes simply 'added to' your Will are not legally valid and are not worth the paper they are written on and, in some circumstances, can revoke your Will.  Although it is possible to make what is known as a 'Codicil' to your Will, there are risks associated with Codicils and they should only be used to deal with very simple changes, for example changing an Executor.  If correctly prepared, a Codicil can be used to amend or add clauses to your Will without affecting the validity of the rest of the Will.

If I have made a homemade Will, is there a way of checking its validity?

Homemade Wills are never recommended. They are generally fraught with problems and are often invalid, for example the Will may not have been constructed correctly, the Will may fail to dispose of a person's entire Estate (leading to a partial Intestacy) and often the correct signature process has not been followed. If you have made a homemade Will, you should seek advice from a Solicitor as to whether or not it is valid. You could find that it is not worth the paper it is written on and your Estate could be Intestate. This can be far more expensive than the cost of a professionally drafted Will.

How many witnesses do I need to my Will?

Your signature to your Will should be witnessed by two people, who should be over the age of 18, of sound mind and are completely independent, i.e.: neither they nor their spouse or civil partner are a beneficiary of the Will. You may have more than two witnesses but this is not necessary unless you are trying to overcome the problem of one witness also being a beneficiary (and thereby forfeiting his or her inheritance by acting as a witness).

What happens to any property I own abroad?

In general terms, any Will made in the UK should cover UK property only.  If you own property abroad, that property may be covered by the laws of the country in which it is situated.  You should seek specialist advice as it will often be necessary for you to make a separate Will in the country in which your foreign property is situated. There are also tax implications to be considered and specialist advice should be sought.

What is a 'mirror Will'?

A 'mirror Will' is the term used to describe Wills made by spouses or partners in which the terms of the Wills are effectively the same i.e. they mirror one another. For example, a married couple who wish to leave everything to the survivor and then on the death of the survivor to their children are said to make 'mirror Wills'.

My Partner and I are cohabiting.  We are an unmarried couple who are living together.  Should we make a Will including each other?

If you each wish to ensure that the other is adequately provided for financially then, yes, you should.  You should remember that there is no such thing as a Common Law spouse and, therefore, an unmarried partner (whether same sex or opposite sex) has no right to inherit.  An unmarried cohabitee could find him or herself homeless unless a Will is made. 

I find the idea of making a Will daunting.  What should I do?

Don't worry, lots of people feel the same way. Your solicitor will guide you through the whole process and will understand your concerns.  If you do not feel comfortable with your current Solicitor, just ask to be looked after by a different solicitor.

What are Executors?

Executors are the persons chosen to deal with the task of administering your Estate after you die. Your Executors are appointed by you in your Will. Your Executors have no legal authority to deal with your assets during your lifetime.  If you are concerned that you may need to appoint someone to look after your financial affairs during your lifetime (for example due to failing physical or mental capacity), you should consider making a Lasting Power of Attorney (see below).  

What do Executors do?

Your Executors have the responsibility for dealing with all of your financial assets, selling your house, finalising your tax affairs, and ultimately making sure that the beneficiaries of your Will inherit what is left to them. They also have the responsibility for passing on any monies to your Trustees to be held in trust, if your Will provides for any ongoing trusts.

Who should I appoint as Executors?

Your Executors can be family members, friends or professionals or a combination.  You should only appoint persons whom you trust entirely with your financial matters.  There are good reasons from a practical point of view why it is recommended that your Executors reside in the UK.  To act as an Executor, a person must be over the age of 18 and must not be bankrupt.  Rather than appoint family members or friends at a time such as this, many people choose to appoint a professional such as a Solicitor or Accountant.  This takes the worry and responsibility away from family and friends.

How many Executors can be appointed in a Will?

You can appoint as many Executors as you like in your Will.  However, you should bear in mind that only the first four who are appointed and are willing and able to act can take out a Grant of Probate to your Estate.  It is therefore worthwhile limiting the number of Executors appointed in your Will.  It is recommended that at least two Executors are appointed as the task can be an onerous one.  If your Will creates a trust of any kind (e.g. if any of your beneficiaries are under 18 years of age), two Executors must be appointed.  However, there will be some cases where it is appropriate to have one Executor only e.g. where your Estate simply passes to your surviving spouse or civil partner and your financial affairs are straightforward.

I don't know anyone who I can ask to be the Executor of my Will.  What should I do?

You can appoint a professional person such as a solicitor or accountant to act as your Executor.  It is a common myth that professional persons charge more to act as Executors than if they were appointed to advise lay (non-professional) Executors.  This is not true although many banks charge a high percentage of the value of the Estate.  In many cases, it can simplify matters to leave a professional to deal with the Estate.  This takes away the pressure from family and friends during a distressing time.

Can an Executor be a beneficiary of my Will?


Can my Executor witness my Will?

Yes, provided he or she is not also a beneficiary.

Who can be a beneficiary of my Will?

Any individual or charity can be named as a beneficiary of your Will.  If minor children are beneficiaries of your Will, a Trust will automatically be established as 18 years is the minimum age at which a beneficiary can inherit.

Can a beneficiary witness my Will?

No.  Any beneficiary who witnesses your Will cannot inherit what has been left to him (unless there were two additional witnesses to the Will, neither of whom were a beneficiary).  Also, if a spouse or civil partner of a beneficiary witnesses the Will, the beneficiary again cannot inherit what has been left to him (unless there were two additional witnesses to the Will, neither of whom were a beneficiary).

I want to benefit a charity in my Will.  What should I do? 

Your Solicitor can advise you on the different types of gift but, broadly, you should consider which charity you wish to benefit and whether there is any specific purpose to which you would like the funds to be applied.  Making a Will provides a unique opportunity to benefit charities of your choice and you should be aware that any monies left to charity are free from Inheritance Tax.

What if I want to cut someone out of my Will?

You are free to leave your Estate to whomsoever you wish.  However, if you exclude a close family member who expected to benefit from your Estate, you should seek advice from your Solicitor as to how best to record your reasons for that decision.  This reduces the likelihood of a claim being made against your Estate after you die.

What is a Guardian?

A Guardian is a person nominated by you in your Will to take care of any minor children who are alive at the time of your death.  A Guardian does not have any legal status; naming a Guardian in your Will simply gives you the opportunity to nominate whom you would wish to raise your children in the event of your death.  If the appointment of a Guardian is disputed, a Court would decide who would act as Guardian.

Should I appoint Guardians in my Will?

Yes, if you have minor children.  Making a Will provides a unique opportunity to set out who you would like to take on the responsibility of caring for your minor children in the event of your death.  We always recommend that anyone with minor children appoints Guardians in his or her Will.

How do I ensure that my Guardians do not suffer financial hardship as a result of bringing up my children?

It might be advisable to appoint one of your Guardians as an Executor.  This is to ensure that your Guardians are able to access the funds for the benefit of your children.  If you appoint professional Executors in your Will, you have the reassurance of knowing that they will ensure that the funds are applied for the benefit of your children.

What if my chosen Guardians would be uncomfortable with handling my children's trust fund?

You should consider appointing professional Executors in your Will.  They will ensure that the funds are applied for the benefit of your children and that the Guardians do not suffer financially by virtue of having agreed to bring up your children.

What is a trust?

A Trust is a vehicle by which monies (a Trust Fund) are held by appointed persons (Trustees) on behalf of the persons benefitting from the Trust Fund (the Beneficiaries).  Trusts can take all kinds of different forms and can be used for all kinds of purposes.  Specialist advice should be sought on the creation of trusts to ensure that the right kind of trust is created for your purposes.

What are Trustees?

Trustees are persons appointed either in a Will or in a Trust created in lifetime to manage assets (the 'Trust Fund') on behalf of the persons who are to benefit from the Trust Fund (the 'Beneficiaries').  In a Will, the Executors will often act as Trustees or separate individuals can be appointed as Trustees; much will depend on the individual circumstances.  If you create a lifetime trust, you could appoint yourself as a Trustee if you wish.

How are trusts in Wills affected by tax?

Trusts can be affected by many different types of tax e.g. Income Tax, Capital Gains Tax (CGT), Inheritance Tax (IHT) and Stamp Duty Land Tax (SDLT).  The precise tax treatment of a trust depends on the type of trust, the identity and age of the beneficiaries of the trust, the type and value of assets held within the trust and the date of creation of the trust.  Specialist advice should be sought from a Solicitor to ensure that the correct tax treatment is being applied to the trust and that the trustees are discharging their responsibilities correctly. 

What happens if I die without making a Will?

You die Intestate, which means that the law dictates (a) to whom your Estate will pass and in what shares and (b) who will act as your Personal Representatives (and have the task of administering your Estate).  As such, all control is taken away from you and you may find your Estate passes to family members with whom you did not have a close relationship, rather than to family members, friends of charities of your choice.  The law in this area has not been changed significantly since 1925.

Will I automatically inherit my partner's Estate when they die?

No.  This is a common misconception and has no status in law.  There is no such thing as a Common Law spouse.  Unmarried partners (whether same sex or opposite sex) have no rights to inherit on the death of a partner although they can make an application through the court for 'reasonable financial provision' where a Will or distribution under an Intestacy fails to adequately provide for them.  However, this should never be left to chance and a Will should always be made.

What is a Personal Representative?

A Personal Representative is the person who administers the Estate of a deceased person.  Personal Representatives are either called 'Executors' where there is a valid Will or 'Administrators' where there is no Will at all or where there is a valid Will but it fails to appoint Executors who are willing and able to act.

What is a Grant of Representation?

A Grant of Representation is the term used to describe the document that allows the signatures of the Personal Representatives to be accepted in place of the deceased's.  It is a court order confirming whether or not a valid Will was left.  If there was a valid Will appointing Executors who are willing and able to act, the Grant is called a 'Grant of Probate'.  If the Will itself was valid but there are no Executors who are willing and able to act, Administrators will apply for a 'Grant of Letters of Administration with the Will annexed'.  If there was no valid Will (i.e. the deceased died Intestate), Administrators will apply for a 'Grant of Letters of Administration'.  Without a Grant of Representation, Personal Representatives will not be able to dispose of assets such as a house, shares and (unless there is a small balance) bank and building society accounts.

When do I need a Grant of Representation?

When the value of the Estate exceeds £5,000.

Do you need a solicitor to apply for the Grant?

By using a solicitor, Personal Representatives can be sure that they have submitted a correct Inheritance Tax account (which accompanies each and every application for a Grant) and can be sure that they are discharging their duties fully.  However, there are some circumstances in which a personal application to the Probate Registry by the Personal Representatives will be appropriate and specialist advice should be sought.

What happens to someone's tax affairs when they die?

Personal Representatives are responsible for ensuring that the deceased's tax affairs are settled to the date of death.  As part of the administration of the Estate, the Personal Representatives submit a return to HM Revenue & Customs dealing with Income Tax and Capital Gains Tax to the date of death.  Personal Representatives also deal with all tax affairs 'going forwards' from the date of death.  This typically means submitting an Inheritance Tax return and also paying any Income Tax & Capital Gains Tax for the period of administration.

When is Inheritance Tax payable?

In general terms, Inheritance Tax (IHT) is levied on your Estate after death at a flat rate of 40% where the net value (broadly assets less liabilities) exceeds £312,000 (single person) or £624,000 (married couple or civil partners).  However, IHT is complex and the rules frequently change.  You should consult your Solicitor for advice.  Your Personal Representatives are responsible for ensuring that the correct amount of IHT is charged and paid out of your Estate.

I am acting as Personal Representative for someone who died recently and I find the Inheritance Tax issues complicated.  What should I do?

Inheritance Tax is a highly complex area and specialist advice should always be sought.  Personal Representatives can be fined for failure to submit correct returns and ignorance is no bar to fines.  By seeking advice from a solicitor, Personal Representatives can be reassured that they are returning the correct figures and paying the correct amount of tax due.

How do solicitors charge for dealing with the administration of an Estate?

There are various ways in which Solicitors can charge for dealing with the administration of an Estate.  Some charge an hourly rate and will tell you the number of hours in which they will undertake to deal with the administration of the Estate, some will agree a fixed fee with you and others charge a percentage of the (gross) value of the Estate.  All charges are subject to VAT.  Expenses such as probate court fees (disbursements) are also added to the charges. You should discuss all possible options with your Solicitor before instructing them to go ahead and you should always obtain an estimate in writing.

My Estate is liable for Inheritance Tax.  When is payment due?

Your Personal Representatives will pay the first instalment of Inheritance Tax within six months of the end of the month in which a death occurs.  The first payment of tax is made by your Personal Representatives when they apply for the Grant of Probate.  If this is after the six month deadline referred to, interest is due.  Some property attracts what is known as the 'instalment option' and tax can be paid in ten equal annual instalments.  Interest is payable on these instalments.  If instalment property is sold, all remaining instalments immediately become due.  This is a complex area and specialist advice should be sought.

Do my debts die with me?

No.  You may find that some debts are covered by insurance but others are payable out of your financial assets before the balance is distributed to your beneficiaries.  If you have insufficient assets to pay all of your debts, your Estate will be insolvent.  The law dictates the order of entitlement to your assets and your Personal Representatives are strongly advised to seek specialist advice before undertaking the administration of the Estate.  Your debts will not pass to your family.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document enabling you (the Donor) to appoint chosen individuals (Attorneys) to act on your behalf.  You can make an LPA in relation to (a) your property and affairs, (b) your personal welfare or (c) both.  LPAs replaced Enduring Powers of Attorney (EPAs) in October 2007. Although it is no longer possible to make an EPA, any EPA made prior to October 2007 can still be used in the event of physical or mental incapacity.

Why should I make a Lasting Power of Attorney?

Everyone over the age of 18 years and who is of sound mind should be encouraged to make an LPA as a form of 'insurance policy' against something untoward happening in later life.  Making an LPA gives you a unique opportunity to be in control of who should make decisions on your behalf should you lose the ability to do so yourself, for instance, as a result of head injury, stroke, dementia or even a broken wrist.

I have made an Enduring Powers of Attorney.  Do I need to do anything?

No.  Although no new Enduring Powers of Attorney can be created after October 2007, any EPAs made prior to October 2007 can still be used in the event of physical or mental incapacity.

What happens if I need someone to look after my financial affairs, but I have not made either an Enduring Power of Attorney or a Lasting Power of Attorney?

It will be necessary for someone on your behalf to apply to the Office of the Public Guardian (formerly the Court of Protection) for a nominated person (a Deputy) to be appointed to manage your financial affairs for you.  This is a lengthy and costly process and can be avoided by simply taking the precaution of making a Lasting Power of Attorney whilst you still possess mental capacity.

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