Wills, trusts and inheritance

FAQs

Why do I need a Will?

Dying without a Will means your loved ones may end up without the immediate support they require. For peace of mind, the best way to guarantee that assets pass according to your wishes is to put a Will in place.

What happens if I don’t make a Will?

If you die without a valid Will, you have no say in who gets what. Instead, intestacy rules apply. This means the division of your estate (assets such as property, savings and possessions) may be passed on to someone you don’t want to benefit. If you don’t make a Will your spouse/civil partner may not inherit everything that you own if you are a couples living together but unmarried you may lose entitlement to remain in the family home your children (if you have any) could end up being cared for by someone you didn’t want your children may receive a large amount of money at too young an age friends, charities and other family members may not benefit.

What information does my lawyer need to make my Will?

a list of all the assets you own and their value who you would like them left to after you die specific wishes, such as funeral arrangements or leaving a legacy to a charity who will look after your children (if you have any) – known as guardians who will carry out your wishes after your death – your executor(s).

What is an executor?

An executor is the person you name in your Will who is responsible for administering your estate after you die. Typical executor duties include collecting up all assets (property, possessions, cash and savings for example) and distributing it out to the beneficiaries as detailed in the Will, after any debts have been paid off.

Who should be my executor?

Your executor should be someone you know; a friend, family member or professional, such as a lawyer. They should have a good understanding of your financial situation and be reliable as this is a long term responsibility. Being appointed as an executor can be very rewarding, but if not done correctly it can be quite a stressful and fraught experience. As an executor there are rules and good practice which need to be followed. We are regularly appointed by clients to be their executor, or to advise the executors, and can guide you through this process, making sure you avoid the common pitfalls.

When should I review my Will?

You should review your Will every few years, and in particular after marriage, civil partnership or divorce the birth or marriage of children or grandchildren moving house purchasing high value items, such as overseas property or an expensive car.

What does domicile mean and does this affect my Will?

If you are born or live long term outside of England and Wales, you may have different tax and administration rules which can sometimes be quite complex. A lawyer can advise you on how this might affect your Will.

How much inheritance tax will have to be paid?

After you die your beneficiaries will be subject to inheritance tax. This will depend on the size of your estate amongst other factors.

Where should I keep my Will?

You should keep your Will in a safe place and make sure your executor knows where it is as they will need to access it after you die. Whoever drafts your Will should keep a physical or electronic copy for you to have access to whenever you need to review it.

What is a mirror Will?

A mirror Will is designed for couples who want to make almost identical Wills. This is more cost efficient but if there are a number of different wishes and requirements between the couple it is best to have separate Wills written.

What is a living Will?

A living Will, also referred to as advance decisions, sets out the particular circumstances in which you would refuse certain types of medical treatment should you be in a position where you have lost mental capacity.

What does domicile mean and does this affect my Will?

If you are born or live long term outside of England and Wales, you may have different tax and administration rules which can sometimes be quite complex. A lawyer can advise you on how this might affect your Will.

What is a trust?

A trust is set up to give assets (for example property or money) to other people (the trustees) to hold for the benefit of others (the beneficiaries). A trust can be used as a practical tool for inheritance tax planning.

How do I set up a trust?

Trusts can be set up in your lifetime and activated straight-away, or within your Will so that they are activated upon death. The legal wording of a trust needs to be precise and requires legal advice.

What is the role of a trustee?

A trustee is a person or company who controls the money or assets held within the trust. They are responsible for dealing with the money or assets for the benefit of one or more people (the beneficiaries).

What happens to interest earned by the trust?

This depends on the type of trust that is set up and also the trust documentation. For example, if the trust is benefitting one person during their lifetime then it is usual for that person (known as a life tenant) to receive all interest from the trust for the duration of their lifetime.

What can money in the trust be used for?

This depends on the type of trust that is set up and also the trust documentation. For example, if it is a discretionary trust then the trustees will use their discretion to pay out for purposes that they deem to be reasonable. When setting up the trust, it is recommend to include a side letter of wishes to give trustees some guidance about when they should pay out to the beneficiaries.

Will money in the trust be taken into account for care fees?

If the money is in a discretionary trust or life interest trust then, should the beneficiary require care fees, the money in trust will not be taken into account. However, if the person who makes the trust requires care fees then they need to be aware that the local authority could query the gift(s) into trust if they were made when care fees were anticipated as this could be seen as a deliberate deprivation of assets which is not allowed.

What is a discretionary trust?

A discretionary trust allows a trustee to make certain decisions about how the income, and sometimes capital, from the trust is used.

What is a pilot trust?

A pilot trust is a type of discretionary trust set up during the lifetime of an individual. They were set up as a way of protecting an estate against future inheritance tax. A pilot trust allows the individual to receive funds and/or property upon their death from a legacy in their Will, a pension fund, a life insurance payout or a death-in-service benefit. Pilot trusts are also known as feeder trusts or family bypass trusts.

What is inheritance tax?

Inheritance tax is a tax which is potentially payable when a person dies.

Do all estates have to pay inheritance tax?

Not every estate has to pay inheritance tax. It depends on the value of that estate and in many cases who the beneficiaries of the estate are.

Do I have a tax free allowance for inheritance tax?

Yes, each individual in England and Wales has a tax free allowance for inheritance tax which is known as the nil rate band. It is currently set at £325,000.

What is the transferable nil rate band and how does it work?

It is possible for married couples to use both individuals nil rate band on the second death. When the surviving spouse dies and if the first spouses nil rate band can be used, it is transferred to the surviving spouse’s estate and calculated for inheritance tax.

What do I need to do to transfer the nil rate band?

It is important that to keep the correct papers such as a marriage certificate, the Will of the first spouse to die together with any grant of probate or letters of administration together with a breakdown of that persons assets at the date of death and whether any inheritance tax was payable at that time.

How do gifts work under inheritance tax rules?

If you make a gift of more than £3,000 during your lifetime to another individual, then you must survive for seven years. If you die within that period, the value of the gift will potentially be chargeable to inheritance tax.

When does inheritance tax need to be paid?

If an estate if subject to inheritance tax, the tax has to be paid within six months of the date of death.

What is an executor?

An executor is the person you name in your Will who is responsible for administering your estate after you die. Typical executor duties include collecting up all assets (property, possessions, cash and savings for example) and distributing it out to the beneficiaries as detailed in the Will, after any debts have been paid off.

What is probate?

Probate is the process of administering someone’s estate (including money, property and belongings) after they die. If the estate has significant assets, a formal grant of probate must be obtained form the court so the estate can be collected and divided between the beneficiaries identified in the Will.

What is a grant of probate?

The grant of probate is the document issued by the court, where there is a Will, giving the executors authority to deal with the deceased’s estate.

What is the grant of letters of administration?

This is the document issued by the court where there is no Will, giving the administrators the authority to deal with the deceased’s estate.

What happens if the deceased hasn’t left a Will?

If there is no Will, the deceased’s estate will be governed by the laws of intestacy. These are laws which lay out who the beneficiaries of a person are and in what order.

Who can be the administrator(s)?

The administrator(s) is/are the person(s) who is/are entitled to benefit from the deceased’s estate in accordance with the intestacy rules. It is possible to appoint the role to a professional if the beneficiary is unable or unwilling to take up the role.

Where do I find a copy of the Will?

A Will may be amongst the deceased’s papers in their home, at their bank or held by lawyers who drafted the Will. There is also a national register which, if the testator (person who made the Will) registered their Will, will contain the details of where it is kept.

How do I know that the Will is valid?

It is difficult to be absolutely sure that a Will is valid. If the Will is dated, signed by the person making the Will with two witness signatures, it is likely to be valid. Complications happened if a Will is signed incorrectly, there is more than one Will, or the Will has been damaged or subsequently written on.

What happens if no executors are named in the Will?

If there are no executors, an administrator or personal representative is appointed by the court. This can be a family member or beneficiary(ies) of the estate.

I am named as an executor but do not want to act as one — what should I do?

The role of executor is not obligatory. If several executors are appointed or replacements named in a Will, they can take up the role alone or instead. Lawyers can also help or deal entirely with the administration of an estate.

When does inheritance tax need to be paid?

If an estate if subject to inheritance tax, the tax has to be paid within six months of the date of death.

What happens with the debts owed by the deceased?

Debts owed by the deceased will be paid from their estate before any distribution is made to the beneficiaries.

How long does probate take?

This very much depends upon the complexity of an estate. It can often be anything between three months to over a year.

Am I liable as an executor if I get it wrong?

An executor can be personally liable for any mistakes made during the administration of an estate. Probate can be a complicated and drawn out process so it is important to seek legal advice to avoid the common pitfalls.

I’m an executor of a Will that is being disputed. What do I need to do?

If a Will is disputed you should always seek legal advice.

What is the difference between and executor and a trustee?

Executors and trustees are often the same people. When dealing with the administration of the estate they are acting as executors. When dealing with any trusts that may be set up within the Will, those people are the trustees. This role can continue even after the estate has been completed.

Is a declaration of trust legally binding?

There are three requirements for a declaration of trust to be valid certainty of words certainty of subject matter certainty of objects. In addition, a declaration of trust over land, or any interest in it, must be evidenced in writing but it does not have to be made by deed. However, it is common for declarations of trust to be drafted as deeds to avoid any suggestion that the contract is not valid.

What is a declaration of trust?

A declaration of trust is a document in which a trustee (or two or more trustees) is appointed to hold property or land on trust for the benefit of others. The declaration of trust confirms the beneficial ownership regardless of the title deeds and alerts future purchasers that the registered owner holds the proceeds of sale on trust.

What are the benefits of a declaration of trust?

A declaration of trust is useful if one person contributes more than the other towards the purchase of a property or mortgage repayments. It is also a very useful document for parents (often non-registered owners) helping their children to get onto the property ladder, by setting out what share they have in the proceeds of sale.

Do I need to register a declaration of trust?

A declaration of trust over land is not registered at the Land Registry. This means that the trust document is not available for public inspection so the exact details of the trust arrangements can remain confidential. However, co-owners of land will want to alert third parties to the existence of the tenancy in common and the need to pay the purchase money to at least two trustees. For registered land, this is possible by entering a restriction on the register or, for unregistered land, by endorsing a document of the declaration on the conveyance (or the lease) to the parties of the property.

When can I get a declaration of trust?

It is always advisable for co-owners who hold property as tenants in common (where each co-owner owns a specific share of the property) to enter into a declaration of trust. This can be put in place before or after the property has been purchased.

What is the difference between tenants in common and joint tenants?

Tenants in common is a type of joint property ownership where each owner owns a separate share in the property. On the death of one of the tenants, their share passes to their beneficiaries in accordance with their Will or intestacy rules if they don’t have a Will. Joint tenants is a type of joint ownership where each owner (joint tenant) owns the whole of the asset, rather than a distinct fractional share. When a joint tenant dies, the asset (usually land/property, but can be a joint bank account or shares) automatically passes to the surviving joint tenant(s). For inheritance tax and capital gains tax purposes, each joint tenant is entitled to an equal share in the asset.

Can I change the type of property ownership I’m in?

Property ownership can be changed from joint tenants to tenants in common. For example after divorce, leaving the share of the property to someone that is not the spouse. A joint tenancy can be severed at any time. Tenants in common ownership can also be changed to joint tenants, for example so a couple has equal rights to the property after marriage.

How do I enter a restriction if I am the sole owner of my property?

An application is made to the Land Registry to enter a restriction over the title. A tenancy in common restriction is the most common type and is known as a ‘Form A Restriction’.

Will a Form A Restriction affect the ability to remortgage?

A Form A restriction indicates that there are other third party interests in the property. As a result of this, the mortgage provider may require further information about the extent of these interests (and the consent of the beneficiary) before providing any further funds.

Are there any Stamp Duty implications with declarations of trust?

A declaration of trust does not constitute an acquisition of a chargeable interest so there isn’t be any Stamp Duty Land Tax (SDLT) payable. If the declaration of trust is executed alongside a land transaction such as the purchase of the property by the co-owners, then it is the land transaction that will be liable to SDLT.

I am not on good terms with my ex, can they make me to enter into a declaration of trust?

A co-owner cannot be forced to enter into a declaration of trust. In the absence of documentary evidence, the person making the claim must prove to a court that they were entitled to a share, or a greater share, of the property. The court will look at the intentions of the co-owners, their behaviour and financial contributions made. As financial contributions are only one of the factors taken into account, it is best to have a declaration of trust prepared at the outset.

Can I backdate a declaration of trust?

Backdating a document is potentially an offence. However, it is possible to provide that a declaration of trust is deemed to have effect from a date in the past or in the future. If the declaration is intended to take effect from a past date, it should also state clearly the date that it was made.

What is a deed of variation?

A deed of variation allows the beneficiary of a deceased person’s estate, to redirect some or all of their interest in that estate to others.

Who can make a deed of variation?

A deed of variation can be made by anyone who benefits under a Will or under the intestacy rules (when there is no Will). However, a child under 18 years old or a beneficiary who lacks mental capacity cannot make a deed of variation.

When can I make a deed of variation?

A deed of variation must be made within two years of the date of death to be effective.

What are the benefits of making a variation?

A deed of variation may be used to benefit the next generation such as children or grandchildren or to redress an imbalance between beneficiaries. It can also be used to make gifts to charities. There may also be tax advantages to making a deed of variation as it can reduce the amount of inheritance tax or capital gains tax payable by the deceased’s estate. A deed of variation can also be used in certain circumstances to resolve a defect in a Will, where all the beneficiaries consent to vary a Will to reflect the deceased’s true intentions.

What are the rules of intestacy?

If someone dies without a Will, there is a set of intestacy rules that determine what relatives of the deceased person inherit and in what order. This means the estate (assets such as property, savings and possessions) may be passed on to someone the deceased does not want to benefit.

Do the rules of intestacy apply if there was a valid Will?

No. The rules of intestacy only apply if there is no Will or if the Will was invalid.

On what grounds can a Will be invalid?

The validity of a Will can be challenged if it was not signed, witnessed or drafted correctly made by someone not of sound mind (lacking capacity) made under pressure (undue influence) made fraudulently.

What do spouses and civil partners receive under the rules of intestacy?

If the deceased has no children, grandchildren or great grandchildren the spouse or civil partner will receive everything from the estate (such as property, cash, savings and possessions). If the deceased has children, grandchildren or great grandchildren the spouse or civil partner will receive personal possessions together with the first £250,000 and half of the remainder of the estate.

Is anyone excluded from inheriting under the rules of intestacy?

If you are not married or in a civil partnership with your partner they won’t automatically inherit under intestacy rules. Step-children are also excluded from inheriting under these rules, even if you have treated them as your children. However, they are not excluded if you have formally adopted them.

How can you avoid the rules of intestacy?

The only way to avoid the rules of intestacy is by making a valid Will. Dying without a Will means your loved ones may end up without the immediate support they require. For peace of mind, the best way to guarantee that assets pass according to your wishes is to put a Will in place.

What is probate?

Probate is the process of administering someone’s estate (including money, property and belongings) after they die. If the estate has significant assets, a formal grant of probate must be obtained form the court so the estate can be collected and divided between the beneficiaries identified in the Will.

What happens if the deceased hasn’t left a Will?

If there is no Will, the deceased’s estate will be governed by the laws of intestacy. These are laws which lay out who the beneficiaries of a person are and in what order.

On what grounds can I dispute a Will?

The validity of a Will can be challenged if it was not signed, witnessed or drafted correctly made by someone not of sound mind (lacking capacity) made under pressure (undue influence) made fraudulently. Although not based on a challenge to the validity of the Will itself, the Inheritance Act 1975 can also be relevant in some cases.

How do I challenge a Will?

The first step would be to seek specialist legal advice as soon as possible. It may be suitable to apply to the Probate Registry to enter a caveat which will prevent the executors or administrators from obtaining a grant to administer the estate. This would give more time for the lawyer to investigate the claim and prepare a case to challenge the validity of the Will.

I am disputing a Will, can I stop an estate being administered?

A specialist Will dispute lawyer can help to stop an estate being paid out to the beneficiaries if there is a concern that the Will is invalid. This is achieved by placing a block on the issue of a grant of probate by the probate registry using a caveat.

How do I obtain a copy of a Will?

The first step is to ask the executor for a copy of the Will. If this is not possible, once a grant of probate has been made then a Will becomes a document of public record and a copy can be obtained from the Probate Registry. To get a copy of the Will urgently, a subpoena can be served on the person who has the Will which requires them to bring a Will to the court, for example, if they hold the original Will but are failing to do anything with it following the death.

What is a ‘no contest’ clause in a Will?

Also referred to as a ‘forfeiture’ clause, this means the beneficiary will forfeit their inheritance if they make a challenge against the Will. It is important for a beneficiary to check for this clause in a Will before making a claim because if unsuccessful they will lose their inheritance.

How long does the Will/inheritance dispute process take?

This can vary as each case is different. For example, if the estate is complex or there are a number of beneficiaries who stand to inherit, the process will likely to take longer to resolve. Usually a dispute is concluded within a few months following investigation. However, it can take longer if an agreement cannot be reached and it goes to court, often up to 12-18 months.

I believe that there is a later version of the Will than is currently being administered by the executors. Can I do anything?

If you know of the existence of a later Will, you should tell the executors as soon as possible. If a grant has already been issued it is not too late - the court has power to revoke an existing grant of probate so that a new grant can be issued to the executors named in the later Will.

Am I eligible to make a claim under the Inheritance Act?

Certain family members and dependants can apply to the court to vary how the estate is divided. The court will consider where the deceased lived if they were married/civil partnership/former partner to the deceased if they lived with the decease if they were a child of the deceased or treated as their child if they were financially looked after by the deceased.

How can I make a claim under the Inheritance Act?

Your lawyer will prepare a formal letter before claim and explore settlement negotiations to avoid going to court. If it is not possible to reach an agreement, the claim will go to court, although it is still possible to negotiate a resolution at any stage up until the trial.

When should I make a claim under the Inheritance Act?

It is important to act quickly; time limits may be relevant and there is a risk that assets might have been distributed already if there is a delay. Applications under the Inheritance Act must normally be made within six months of the date of the grant of representation (the official document confirming who is to administer the estate and sometimes referred to as a grant of probate). Individuals facing a claim against them (defendants) should also be alive to the time limits as a successful limitation defence could provide a total defence to an Inheritance Act claim.

What factors are considered in Inheritance Act claims?

Some of the factors considered include physical and mental health, obligations and responsibilities of the deceased person, the size and nature of the estate (the assets left behind by the deceased), and the financial needs and financial resources of applicants and the existing beneficiaries. Each case is different and depends on its own facts.

If I’m successful in my Inheritance Act claim, how will the money be received?

The court has very wide ranging powers, examples of orders that can be made include payment of a lump sum periodic payments transfer of specific assets an outright interest in a property a lifetime interest in a property.

I’m in a Will/inheritance dispute. Do I have to go to court?

Encouragingly the majority of disputes are resolved by settlement without going to trial. In disputes that do go as far as court, the nature of the dispute can in some instances mean that witness evidence is not needed from you.

Can we go to mediation to resolve a Will/inheritance dispute?

Yes, mediation is a form of alternative dispute resolution (ADR) that is particularly suited to inheritance and trust disputes. Mediation is often quicker, less stressful and cheaper than going to court and should always be considered in the first instance.

I’m not married and my partner died without making a Will. What can I do to claim my inheritance?

This unfortunately is a common situation. Intestacy rules (that say who gets what if there is no Will) do no benefit a cohabitee partner, however you could have a strong claim under the Inheritance Provision for Family & Dependants) Act 1975.

My mother/father died without leaving me anything in their Will. Can I claim my inheritance?

Children (whether adult or under 18) and step children can make a claim. There are multiple factors the court must consider in these cases including financial factors and personal circumstances the size and nature of the estate any obligations and responsibilities which the deceased had towards their children whether the children have any relevant disabilities the manner in which the children are being or expect to be educated or trained.

Who pays the legal costs in a Will/inheritance dispute?

It is a common misconception that the legal costs of an inheritance dispute are automatically paid out of the estate. If a case settles through negotiations the parties can agree between themselves who should pay the costs. If the dispute goes to a trial, the court decides who pays the costs and an assessment then determines how much this will be. The usual rule is that the unsuccessful party pays the costs of the successful party as well as their own.

Can insurance cover the legal costs of a Will/inheritance dispute?

This will depend on the type of insurance. Legal Expense insurance provides protection when taking legal action against another party and coves the legal costs. These policies tend not to provide cover if the claim is made against you. Another type of insurance is After the Event insurance (ATE) and is taken out after the dispute has arisen to protect against the risk of having to pay the opponent's legal costs if unsuccessful.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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