2. Your property will be divided according to certain legal rules (the intestacy rules). Some of them may surprise you. For example, the share your husband or wife gets may not be enough to give him or her outright ownership of your home. Also, if you are not married but have been living with someone, the person you are living with will not get anything. The following will give you a rough idea of how the rules work.
If you are single (i.e. unmarried, widowed or divorced) with no children or grandchildren your property goes:
To your parents or whichever one is living: if both your parents are dead, to your brothers and sisters, and if any of your brothers or sisters are dead, the share of that brother or sister goes to any of their children who survive you: if both of your parents are dead and you have no surviving brothers, sisters, nieces or nephews, then to any half brothers or sisters (and if any of them are dead, their share goes to any of their children who survive you): if none of the above survive you, then your grandparents and then to any aunts or uncles and after that to various more distant relatives: if you have no relatives, or only very distant ones, your property then goes to the crown (i.e. the government).
If you are single with children or grandchildren your property goes:
To your children in equal shares: but if any of them have died their share will be divided between any of their children.
If you are married with no children or grandchildren:
The first £450,000 of your property goes to your husband or wife plus one half of the remainder: the other half goes to your parents or whichever one is living: if both parents are dead, the other half will go to your brothers or sisters or, as above, to the children of any who have died before you: if none of the above survives you, then your husband or wife gets everything.
If you are married with children or grandchildren:
The first £250,000 of your property goes to your husband or wife plus a life interest in one half of the remainder (this will eventually pass to your children or grandchildren on his or her death): the other half goes directly to your children or, as above, to the children of any who have died before you.
When these rules are applied it usually does not matter whether a person is legitimate, illegitimate or adopted. Thus, for example, your adopted children have the same rights as your natural children, and the same is true for any of your children whose mother is not your wife or whose father is not your husband.
3. Yes, but only by signing a document called a codicil. This must also be prepared, signed and executed in a particular way. You do not need a codicil if you or any person named in your Will changes their address. A codicil is useful for minor changes to your Will. If you wish to make major changes it is often preferable to write a new Will.
5. A Will is almost always cancelled automatically if you get married after you have made it. If you get divorced after you have made it, any provisions in favour of your wife or husband will be cancelled unless the Will says otherwise. It is essential that you consider writing a new Will if there are major changes to your circumstances.
7. Trustees are the people appointed in your Will to look after your property until for example, a child is old enough to inherit or where there is a life interest. Executors and trustees are usually the same people.
9. We are getting a lot of calls from the public asking about Tenants in common. Most couples own their property as joint tenants, which means that on the death of one of the joint owners then the property passes to the survivor. This is fine in most cases but increasingly you are concerned about inheritance tax and care costs. Changing ownership to tenants in common achieves no tax saving without the correct Wills in place. Please call Peter Hoare on 01276 415 811 to discuss Tenants in common.
10. Executors bring together all your assets, pay your debts and any gifts of money, transfer any gifts or personal belongings and deal with the remainder of your residuary estate in accordance with your Will. Often non-professional Executors will ask a Solicitor to do some or all of the work for them.
11. Any adult person or a bank may be appointed as an Executor. One of them could be the person who is going to receive the biggest share of your estate, such as your husband or your partner. Relatives and close family friends can be Executors. There is also a Government department known as the Public Trustee. It's easy to appoint another Executor later if you want to do so by means of a codicil. If you appoint a professional trustee do remember that they will charge for their service.
13. People who are "co-owners" of property hold it either as "joint tenants" or "joint tenants in common". Husbands and wives are usually, but not always, joint tenants. This means that when one of them dies the other one automatically becomes the owner of the whole of the property. It also means that a joint tenant cannot make a gift in a Will of his or her share of the property. A joint tenancy can easily converted into a tenancy in common and Alder Wills & Probate Ltd can draw this up for you.
14. Despite recent changes in the Finance Bill The Discretionary Trust Wills may still save Inheritance Tax. If the value of your estate is more than £350,000 (20011/12) after payment of debts and any gifts to your husband or wife or a charity then Inheritance tax may be payable at 40% on the value over this amount. So if you are a couple and your estate is worth £700,000 and you have made simple Wills then on the first death there is no Iht payable providing you are married, due to the spouse exemption, (UK domiciles only) but now your spouse’s estate is worth £700,000 so that on the second death INHERITANCE TAX of £20,000 may be due. Alder Wills & Probate Ltd can advise you on ways of reducing or removing the impact of inheritance tax on your estate and to eliminate it in the above example by using Discretionary Trusts and some clever techniques. The Nil rate band is frozen for five years so this type of Will may create some tax saving opportunity Its got to be worth it for your family's benefit and I certainly would not like to leave £20,000 to the Treasury if I did not have too. Simple Wills are not always the answer.
15. A Living Will (also called an advance directive) is a set of instructions issued in advance to the medical practitioners who may be involved in looking after you in the future. People making a Living Will state that they do not wish their lives to be artificially prolonged when suffering from a terminal illness or other degenerative condition. . Alder Wills & Probate Ltd can provide this service.
16. You should keep it in a safe place. Your Executors will need the original. . Alder Wills & Probate Ltd can arrange to have your Will and other documents stored . Providing the Will is drawn up by us.
17. Lawyers make more money from sorting out the problems created by DIY Wills than they do from drawing them up! The pre-printed forms available in bookshops can also cause problems. When striving to make the wording fit the framework of the form, committing a blunder is easy.
Example: I give £5000 to R.U. BROKE in the knowledge that he will do what is right by his cousins.
Here the testator meant that R U. should give some of the money to the other cousins. However it could well create a binding obligation (technically a trust) in favour of the cousins. Only a court could sort this one out.
Example: I leave £10,000 to Mr and Mrs P.A. HARDUP.
Is this £10,000 to each of them or is it to be shared? The courts would rule that it was to each of them meaning that the other beneficiaries would lose out!
Example: I give all my money to my wife TINA MISSEDOUT.
Does this mean cash in the house? Or in the bank? Or the whole estate?
19. Under the new rules, if the 1st to die of a married couple did not use all of their NRB allowance then the unused proportion can be claimed by the executors of the estate of their widow(er) as and when the 2nd one passes away. This will require good record keeping by the executors on the 1st death, and extra forms to complete on the 2nd death. If no records are kept there is a danger of your application being refused.
• An example:- The 1st member of a couple leaves all their estate to their widow(er) so the full amount exploits the spouse exemption, leaving the NRB completely unused. Then the widow(er) passes away 2 years later, and their executors can claim a full additional NRB (in 2 year's time the NRB is planned to be £325,000, so that will be £650,000 passing tax free).
• A different example:- On the 1st death gifts totalling £150,000 were made directly to family, using up half of the NRB allowance. Then suppose the widow(er) dies a couple of years later, the executors can claim an extra 50% of the NRB that applies at the time of the 2nd death (that is £150,000 passing tax free on 1st death, and then in 2 year's time the executors could claim an extra 50% NRB on top of £325,00 i.e. £487,500 giving a grand total of £637,500 having passed tax free)
These new rules only apply to those legally married (or in a civil partnership) at the time of the 1st death. It does not matter how long ago the 1st death occurred, but the 2nd death has to be on or after 9th October 2007 for the executors to be able to go back and make the claim for the unused portion. Should the widow(er) marry again at some point, the unused portion can still be claimed - but in order to achieve the most effective use of the NRB allowances both members of the new couple really should not leave everything to each other but should consult their Will writer about making more sophisticated Wills. If someone is unfortunate enough to be widowed multiple times their executors can claim multiple partial NRBs as available - but to a maximum of one full extra NRB.
If you simply live together the rules do not apply. If you were divorced before your ex-spouse died then there is also no benefit.
Confused? Probably. As ever, the details of what is involved can catch out the unwary.
Think that Inheritance Tax does not apply to you? Well, with the high price of houses plus payout from life insurance policies or death-in-service benefit from work then increasing numbers of families fall into this tax bracket. Remember, even if your estate is not hit by the tax, the way in which you set up your Will can reduce the tax that would be paid when money passes from your children on to your grandchildren.
Best to take some advice call Peter Hoare 01276 415 811