While we may not want to think about matters such as Wills and Probate, including who will handle our affairs when we die, it is important to put in place plans sooner rather than later. Unfortunately, despite the growing awareness of Wills and Probate, many people still do not have a Will, especially young people who leave it to much later in life. It is now estimated that 60% – 70% of all adults in the UK do not have a Will, and the average age for writing a Will has risen to 58. This leaves tens of millions of people across the UK with no say over how their affairs should be handled when they die.
Looking for help with will writing, probate, inheritance tax planning or creating a trust? Call our highly experienced Wills and Probate Solicitors on FREEPHONE 0800 1404544 or one of our four local office numbers for FREE initial phone advice – with absolutely no strings attached.
Our experienced team handle wills, probate, trusts, lasting powers of attorney and court of protection work both for clients locally in Wiltshire, Hampshire and throughout England and Wales – from our offices in Salisbury, Andover, Fordingbridge and Amesbury.
Do I need a Will?
Preparing a Will involves putting in writing how you wish your estate to be dealt with when you die. You will be able to explain exactly who should receive your home, other property, vehicles, money, businesses, and other items that you own. You can also include in your Will other important information, such as your wishes for your funeral. Putting in place a Will that is clear and up to date will allow you to relax in the knowledge that your wishes will be followed no matter what happens to you.
In England and Wales, if you do not have a Will or your Will is invalid when you die, the rules of intestacy apply (this is called “dying intestate” – see below for further information).
What should I include in my Will?
Wills should always be drafted to meet your individual needs and life circumstances, which will almost certainly change over the years.Your Will may cover any of the following areas:
· Who you wish to take responsibility for winding up your personal affairs and ensuring your Will is followed (this is your “Executor”)
· Your funeral wishes (e.g. whether you want your body to be buried or cremated and any other preferences for your funeral)
· How you want your property, pensions, life insurance, and investments to be passed on
· How you want your personal possessions to be passed to your loved ones (e.g. cars, furniture, jewellery)
· How you want your money to be passed to your loved ones (e.g. you may specify that a fixed amount should be given to certain people)
· Where you wish any remaining parts of your estate to go
Anyone that receives an inheritance from your estate is called a “beneficiary”. Your beneficiaries can be anyone that you choose, including family members, friends, and charities.
It is important to bear in mind that who you gift money and possessions to in your Will may affect the amount of inheritance tax that must be paid to HMRC when you die. For example, gifts to charities do not attract inheritance tax.
Depending on your personal circumstances, you may also include in your Will who you wish to become a legal guardian if you have children under the age of 18 and both parents die. Drafting Wills requires extra consideration for those with:
· Shared ownership of property with a person who is not a married or civil partner
· A business or businesses
· Property or a permanent home overseas
· Previous marriages or civil partnerships, or
· Dependants who cannot care for themselves
What is an Executor?
Wills must contain at least one (but no more than four) Executor who is legally responsible for carrying out the wishes of the deceased, including distributing their money, property and possessions (i.e. estate). An Executor can include a person who will receive an inheritance. Often the surviving spouse and a Solicitor will be named as Executor. Here at Bonallack and Bishop, our team act as professional executors of UK wills on a day-to-day basis.
Click here to read more about the Role of the Executor in Probate
Will writing – naming an executor in your will
It’s important that you ensure that the person you name as executor in your will is someone that you cannot only trust but will be happy to act for you. Taking on the role of executor and administering yourself estate after you pass can be a stressful role, especially if your finances are complex. And depending on your own age, it’s a good idea to consider the age of any potential executor – picking someone younger than you is often sensible.
Our team are happy to advise you on the selection of executors.
But you may also consider appointing us as your executors. Our wills and probate solicitors are highly experienced in acting as professional executors and have handled hundreds of estates for clients.. And there are some very good reasons why you might want to trust us with administering your estate.
How can I make sure my Will is valid?
In order for a Will to be legally binding and can be used by an Executor, it must be valid. The conditions for a valid Will as follows:
· it must be in writing
· it must be been signed by you
· you must have been able to understand the will you are making (i.e. you have mental capacity)
· the will must be understandable (i.e. is clear and makes sense)
· execution of the will must have been properly witnessed, and
· you must have entered into it without pressure from anyone else
A Will may be invalid if there are any doubts on any of these matters.
Having mental capacity means that you fully understand the contents of your Will and any implications. If there are concerns regarding illness such as dementia which may mean you lack capacity, a letter may be required from a medical practitioner confirming you have the capacity to enter into a Will.
When it comes to signing your Will, this must be done in front of two independent witnesses, who will also need to add their own signatures. If your will is signed incorrectly, it is likely to be invalid. It is also important to ensure that anyone who stands to benefit from your Will (e.g. your partner or children) should not be a witness.
When should I review my Will?
Wills should always be reviewed as your life, finances or personal circumstances change.
For example, a Will for a husband or wife with children will differ from a Will for a single person or where everything is being given to charity.
That means it’s not a good idea just to have a will drafted when you’re younger but avoid having it updated. You really need to consider updating your will regularly, especially if there have been any major changes in your personal family financial circumstances.
In fact, even the government’s own gov.uk website commends a regular will review – here is a direct quote from the site:
“You should review your Will every 5 years and after any major change in your life”
And it’s important to realise that if you get married, enter into a civil partnership, or remarry, your existing Will is cancelled, and you will need to have a new one drawn up. In addition, if you drew up a Will while married or in a civil partnership and divorce, your ex-spouse or civil partner will no longer benefit from your Will if they were included.
If a minor change is needed (e.g. change of address), then your Solicitor may simply recommend drafting a “codicil”. A codicil is added to your existing Will and will be followed in the event of your death. If large changes are needed to your Will, then a new Will may need to be drafted
Take advantage of our FREE will review offer
If you simply don’t know whether or not you need to update your Will, then take advantage of our free will writing review offer. Just give us a call to book an appointment with 1 of our wills and probate solicitors with no strings attached.
Just call us to book in your FREE wills review appointment – with one of our wills and probate solicitors – no obligation or strings attached.
Inheritance and Guardianship – Why All Parents Need To Have A Will In Place
Our specialist wills and probate solicitors [and for that matter our team of divorce solicitors will advise you that there are many reasons for having a valid will in place, but perhaps the most compelling is if you have children under the age of 18. Quite simply, your children are at risk if you die without making provision for them in your will.
And surprisingly few parents do have a legal guardian in place to care for their children in the event of their deaths, according to 2023 research commissioned by Solicitors for the Elderly – just 3 out of 10 have appointed a legal guardian. The same research found that just 17 per cent of parents were aware that in the absence of having appointed a legal guardian, it was either social services or the courts who could be left with the responsibility of deciding what happens to their children.
1. Appointing a guardian
Many people cherish the fond belief that if they die, a close relative will automatically take care of their children. They may even have a verbal agreement in place. Reassuring as this idea is, the reality is very different. If you die before your children are 18, they will become the responsibility of the Court, and possibly end up in care whilst the courts decide what is best for them – unless you have a valid will in place. Any agreements made outside the will may be helpful but are not legally binding.
Don’t take any chances. Make a will and use it to name the person you trust to bring up your children in the event of your death.
2. Inheriting at 18
Do you really want your children to inherit your entire estate at the age of 18? Or would you prefer them to wait until they are more mature?
Perhaps you’d like them to receive their inheritance in the form of regular payments. As the law stands at present, if you die without making a will your estate comes under the control of the courts, who will distribute it according to strict laws of precedence. These may or may not conform to your wishes.
In any event, your children would receive nothing until they are 18, at which point, they would receive everything in one go. Again, a valid will removes this risk, by setting out how you wish your children to receive their inheritance.
3. Setting up a trust
One useful feature of a will is that it can be used to set up trusts for your children. Should you die, your estate will be paid into the trust, rather than directly to your children. You can appoint trustees who will administer the trust and distribute money from it according to your directions.
Our specialist trusts team will guide you through the paperwork, explain your options and set up the relevant trusts. Although it’s a subject that nobody likes to contemplate, most people find that writing a will which guarantees their children’s future well being gives them enormous peace of mind.
How can I update my will?
Broadly you have a couple of options:
1. A codicil, signed and witnessed in the same way as the current will, is fine for minor alterations.
2. A new updated will reflecting your current circumstances and wishes is usually the best option if you’re looking at making more significant changes
What are “mirror Wills”?
As the name suggests, mirror Wills are all but identical Wills used by married couples and partners. With a mirror Will, everything normally passes to the surviving spouse and then to the children on the second death. It is important to note that while a Will may be mirrored, there is nothing to stop either person from changing their Will at a later date. As such, there are no legal requirements to keep Wills mirrored.
With a “mutual Will”, both people agree never to cancel or change the Will at a later date without first getting agreement from the other person to do so. This means that when one person dies, the surviving partner cannot change the Will.
Take advantage of our Free Wills Storage Offer
For those of you who already have a will, we suspect that far too many of you are paying for storage – banks and unqualified will writers in particular routinely charge substantial sums annually just for looking after your legal documents.
But here at Bonallack & Bishop, our wills and probate solicitors are happy to store both your Will and House Deeds completely free of charge in our secure fire proof storage. There are absolutely no strings attached – even if we didn’t prepare your will or handle the original conveyancing.
NB never keep your will in a bank safety deposit box. Apart from the financial cost, adding to bank profits, there is potentially a fundamental problem. When you pass, your deposit box cannot be opened until your executor obtains grant of probate – and probate can’t be granted without the will!
What does “dying intestate” mean?
“Dying intestate” means that because there is no Will, everything you own will be distributed according to the rules of intestacy. Intestacy law provides a standard set of rules for how assets should be distributed to family members in strict order of priority.
· If the deceased was married or in a civil partnership but had no children, the whole estate goes to their spouse or civil partner.
· If the deceased was married or in a civil partnership and had children, the rules of intestacy state that the spouse or civil partner receives everything from the estate up to £250,000 plus half of any remainder. What is left is then shared equally between the children.
· If the deceased was not married or in a civil partnership but did have children, the whole estate is divided equally between the children.
· If the deceased was not married or in a civil partnership and had no children, their estate is then shared equally in the following order of priority: parents, siblings (or the children of siblings), grandparents, and aunts and uncles.
As such, it is easy to see that if you die intestate (i.e. without a valid Will), it is likely that your estate will not be distributed how you would like. This can cause disagreements and ill-feeling between family and friends after you die. And worse still, it can increase the possibility of 1 of your family or friends making an inheritance claim against the estate – something that can sadly split families for generations.
What is partial intestacy?
In some cases, there may be a valid Will, but part of the estate remains (i.e. it is not covered in the Will). In this type of situation, the rules of intestacy may be applied to understand who the remaining part of the estate should be given to. This is why it is so important to make sure that your Will is drafted carefully and that it covers all of your estate.
What is probate?
“Probate” is the process of managing the estate of a person who has died. After a person dies, the Executor of the Will must apply for permission to handle their estate (their property, possessions, money, and other assets). This is called a “grant of probate”.
It is important to note that a grant of probate is not always needed. Probate may not be required if the deceased only held savings (and no other assets) or they owned shares, money or property jointly with others (e.g. a surviving spouse). This is because if there is a shared bank account, this will pass to the surviving owner. Likewise, land and property held in joint ownership (i.e. joint tenants) will pass automatically to the surviving owner. Probate is, however, normally needed where a property is owned with a surviving person as tenants in common.
Do I need to apply for probate if there is a Will?
Yes, you will need to apply for probate if you want to manage the estate of a person who has died, whether there is a Will or not. Whether probate is needed actually depends on the value of the estate (see below on applying for probate).
I am named as an Executor in a Will but don’t want the role; what can I do?
It is entirely understandable that having been named as an Executor, you would prefer not to take on the duties and responsibilities of the role. After all, you are legally responsible for what you do as an Executor and including any mistakes made. It may also be the case that you are not in a position to act in the role of Executor due to other factors such as illness. Thankfully, there are several ways you can opt out of the role of Executor.
If you are named in a Will as an Executor, and you would prefer to give up the role, you have three main options. Firstly, if you prefer, you can simply give up all of your rights as an Executor. This is normally easier if you haven’t already started working on the administration of the estate, because if you have started work on the estate before you decide to give up the role of executor, you may be considered to been involved in what is known as “intermeddling”.
A second option is to allow another named Executor to take the role.
Or thirdly, you can instruct specialist Probate Solicitors to handle part or all of the process for you – how much, or how little, help our private client team provide in administering an estate is really up to you. We regularly act as professional executors for clients.
I am named as an Executor in a Will, what do I need to do?
If you have been named in a Will as an Executor, you have several important duties that you must complete when the owner of the Will dies, including:
- Formally registering the death
If no one else is able to register the death of the deceased, the Executor may need to complete this process. Copies of the death certificate will be needed to provide evidence that the person has died (see below).
- Locate the Will
It is important that the Executor uses the latest version of the Will and any codicils; this may not be the same as the version they already hold. The latest version may be held on file by the deceased’s Solicitor, or it may be necessary to check the National Will Register.
- Securing any property owned by the deceased
If the deceased has property and this is now unoccupied, it may be necessary to ensure it is locked and secure. You should also inform the house insurer of the death and advise them that you have made the house secure. You will also need to ensure the post is checked.
- Organising the funeral
If there are any funeral wishes within the Will, it is important to ensure that these are followed. You will also need to ensure that any costs relating to the funeral are paid (e.g. for the funeral director and any catering) from the estate.
- Creating a list of and valuing the estate
You will need to create a full list of all of the assets held by the estate and any debts owed. This includes valuing the property, vehicles, furniture and jewellery (typically everything worth £500 or more). You will also need a list of any savings, pensions, investments, and business holdings, plus any other financial assets held by the deceased.
Once you know the value of the estate, you will need to work out if any inheritance tax is owed to HMRC.
- Closing accounts
A copy of the death certificate should be sent to any banks, insurers, and any other companies that the deceased dealt with, e.g. utility and energy companies, mobile phone providers). Any refunds should be collected, and any outstanding bills paid.
- Paying Inheritance Tax (IHT)
If the value of the estate is more than £325,000 (as at August 2023), inheritance may need to be paid to HMRC.
This amount may be higher (potentially up to £1m) if the deceased owned their own home and were entitled to unused inheritance tax allowances from their deceased spouse.
Applying for probate
If the value of the estate is £5,000 or more, you will need to apply for a “grant of probate”, which gives you legal permission to deal with the estate of the deceased.
You will need to wait to be granted probate before you can distribute the proceeds of the estate. Your Solicitor can apply for probate for you, or you can apply online on the government website. Before you can apply for probate online, you must have already estimated the value of the estate and worked out if any Inheritance Tax is due.
It can take up to 16 weeks to receive the grant of probate, hence the sooner the application is submitted, the faster the estate can be managed and distributed.
Distributing the estate to the beneficiaries
Having completed all of the above steps and receiving a grant of probate, you can now finalise the inheritances in the Will. That said, any personal items that are “bequeathed”, such as items of jewellery, can be given to the beneficiary before the grant of probate is received.
At this stage, you can:
· repay any debts owed by the deceased
· sell any assets of the estate (e.g. property, cars, shares), and
· pay any tax owing on the income of the estate
The next task is to draw up the final estate accounts once all bills and debts have been paid (including IHT). This should set out the remaining amount to be paid to each beneficiary as requested in the Will.
The value of the estate plus any income and tax liability must be reported to HMRC.
And finally, the estate can be divided up and distributed to the beneficiaries named in the Will.
Further services offered by the wills and probate solicitors in our private client team
Click here to read about Lasting Powers of Attorney and why you might need one
Click here to read more about how our Inheritance Tax Planning Solicitors can help you with family wealth management
Click here to read more about how our highly specialist Trust Lawyers can help you with trust creation
Looking for assistance with running or administering an existing trust? Click here to read how our Professional Trustee Solicitors can help you.