Why do I need a will?
What should I include in my will?
I have lost my will. Can I use a copy?
Can I draft a will myself?
What should I do if I have assets outside England and Wales?
Can we make a joint will?
What is the difference between a mutual will and a mirror will?
Who will look after my children if I do not appoint a guardian?
What does an executor do?
How do I obtain probate?
What shall I do if there is no will?
All the executors are dead. Who applies for probate?
Which tax forms do I complete?
How do I calculate the Inheritance Tax liability?
What is Inheritance Tax?
When is Inheritance Tax payable?
Is probate always necessary?
Which taxes does an executor need to consider?
Can an executor be paid an hourly rate for his or her trouble?
What is a deed of variation?
What is a trust?
How can I avoid Inheritance Tax?
What are the costs involved in obtaining a Grant of Probate/ Representation and the Administration of an Estate?

 

 

 

 

Why do I need a will?

The existence of a will dictates what will happen to the testator's property on death. If a person dies with a will in place, the deceased's estate will be distributed in accordance with the terms of that will.

If a person dies intestate (i.e. without a (valid) will), the estate will pass in accordance with the intestacy provisions, which are a set of statutory rules. Without a will, spouses may not automatically inherit all of the deceased's estate; any children will automatically receive their share at 18 years; and unmarried partners will not receive anything.

It is important to have your will drafted as soon as your able: a will is not valid if it has been drawn up when the testator no longer has his/her mental faculties.



Back to top


 

 

What should I include in my will?

A will should include the following:

1. Revocation clause;
2. Executors and trustees: these are the people who will administer the testator's estate;
3. Guardians: if you have any children under 18, it is important to include a guardianship clause and choose you would like to look after your children on your death;
4. Directions for burial: you might like to include a wish that you want to be buried or cremated;
5. Beneficiaries: these are the people who will inherit your estate. You can leave your entire estate to one person, a number of people, or make specific gifts;
6. Attestation clause: this is where the will is executed and witnessed.

Your will can be as simple or as complicated as you like. The above is only for the most basic of wills. There are many other inclusions which can prove very useful.



Back to top

 

 

 

I have lost my will. Can I use a copy?

 

No. It is only the original will with the original signatures which is valid.



Back to top


 

 

 

Can I draft a will myself?

 

Theoretically, a will can be drafted by anyone. It is though, important to get both the contents and the execution of the will correct. Otherwise your intentions may not come to fruition.

If your will does not dispose of all your property, you will die partially intestate. The intestacy provisions will apply to the assets you have not included in your will (please see Why do I need a will?).

A poorly drafted will may mean that gifts may fail: it may not be possible to identify a beneficiary, or a gift.

A solicitor should also be able to give you advice on estate planning and the tax implications of making particular gifts in your will and to whom.

Wills can be challenged. If your will is poorly drafted there is a greater likelihood of it being challenged.



Back to top


 

 

 

What should I do if I have assets outside England and Wales?

 

If you have assets outside England and Wales, we strongly advise you to have a will drafted in the relevant country, as well as a will for England and Wales. If you do not do so, you could potentially be setting up a conflict of laws by trying to force a country to adopt your English will. This will often be refused.



Back to top


 

 

 

Can we make a joint will?

 

No, but you can make mirror wills.

 

A joint will is one Will made by two or more Testators. In England, it is not possible to make a joint will.



Back to top


 

 

 

What is the difference between a mutual will and a mirror will?

 

A mirror will is where two people each write a will which directly mirrors the other's. For example, the couple could appoint each other and another person as their executors and would each leave everything to the other.

A mutual will is much more rare in practice. It is the same as a mirror will except for the fact that it restricts the survivor of the two testators' from changing his/her will after first death. The couple are locked into an agreement amongst themselves and neither of them are able to change the will when the other dies.



Back to top


 

 

 

Who will look after my children if I do not appoint a guardian?

 

If you are an unmarried couple, the father may not automatically inherit the right to look after your children, even if he is the natural father. It is necessary for the father to have obtained parental responsibility for the child.

A father has automatic parental responsibility if he is or has been married to the mother or if he is registered on the birth certificate and the child was born after 2003. A father can obtain parental responsibility through a formal agreement with the mother, or by court order.

If a guardian is not appointed in your will, the authorities will choose someone on the parent's behalf. This will not always reflect the testator's wishes. If you have children under 18 years, it is advisable to appoint a guardian(s) in your will.



Back to top


 

 

 

What does an executor do?

 

An executor must collect and get in the real and personal estate of the deceased and administer it according to the law. This means that the executor must collect in the deceased's assets, pay the deceased's funeral and testamentary expenses and any outstanding debts, distribute legacies (gifts) and distribute the remaining estate in accordance with the terms of the deceased's will.



Back to top


 

 

 

How do I obtain probate?

 

The first step in obtaining probate is to obtain the original of the deceased's last will. The next steps differ depending on whether the executors instruct a solicitor or act for themselves. As a firm of solicitors, we are experienced at dealing with probate matters. The executors provide the solicitor with details of the deceased's property, assets, debts and liabilities. The solicitor then prepares the necessary HM Revenue and Customs (HMRC) Inheritance Tax (IHT) form(s) and drafts the oath for the executors to swear. If the value of the deceased's estate requires the payment of IHT, HMRC clearance must be obtained before applying for probate. If there is no IHT liability, your solicitor will make a paper based application for the grant of probate.



Back to top


 

 

 

What shall I do if there is no will?

If there is no will, the law specifies who is entitled to deal with the estate. This person is known as the personal representative of the deceased. He or she may apply for letters of administration. The personal representative will become the administrator of the estate and will be the deceased's next of kin - i.e. their spouse, a child over 18, a parent or sibling etc. Once it is established who will apply for letters of administration, the process is very similar to that followed if the deceased did leave a will (please see How do I obtain probate?).



Back to top


 

 

 

All the executors are dead. Who applies for probate?

Rule 20 of the Non-Contentious Probate Rules 1987 lists, in order of priority, those persons authorised to obtain a grant of probate where the deceased left a will. If all the executors are dead, the following may apply:

1. Any residuary legatee or devisee holding in trust for any other person;
2. Any other residuary legatee or devisee (including one for life) or where the residue is not wholly disposed of by the will, any person entitled to share in the undisposed of residue;
3. The personal representative of any residuary legatee or devisee (but not one for life, or one holding in trust for any other person), or of any person entitled to share in any residue not disposed of by the will;
4. Any other legatee or devisee (including one for life or one holding in trust for any other person) or any creditor of the deceased, provided that, unless a registrar otherwise directs, a legatee or devisee whose legacy or devise is vested in interest shall be preferred to one entitled on the happening of a contingency; or lastly
5. The personal representative of any other legatee or devisee (but not one for life or one holding in trust for any other person) or of any creditor of the deceased.



Back to top

 

 

 

Which tax forms do I complete?

The tax form you are required to complete largely depends on the value of the estate. If the estate is an excepted estate, HM Revenue and Customs (HMRC) form IHT205 must be completed. The estate may be an excepted estate if its value is less than the relevant Inheritance Tax (IHT) threshold taking all necessary factors into account. Where it is likely that IHT is due, HMRC form IHT400 needs to be completed. Please consult a solicitor for further advice.



Back to top


 

 

 

How do I calculate the Inheritance Tax liability?

See Estate Planning section entitled "How do I calculate the Inheritance Tax liability?"



Back to top


 

 

 

What is Inheritance Tax?

Inheritance Tax (IHT) is a tax on the assets of a person who has died. IHT is paid out of the estate before it is distributed to the beneficiaries. Most estates do not have to pay IHT.



Back to top


 

 

 

When is Inheritance Tax payable?

See Estate Planning section entitled "When is Inheritance Tax payable?"



Back to top


 

 

 

Is probate always necessary?

No. Some banks and investment companies will let you withdraw funds without the need for a grant. You also do not need to obtain a grant to sell items such as cars, furniture or jewellery. Any property held in joint names will pass straight to the survivor without a grant, as will any assets that were held in trust, such as pension benefits, life insurance policies etc.

If the deceased has any assets which do not fall into the above categories, probate should be obtained.



Back to top


 

 

 

Which taxes does an executor need to consider?

The executor of the deceased's estate must consider the following taxes:

Income Tax

Capital Gains Tax; and

Inheritance Tax



Back to top


 

 

 

Can an executor be paid an hourly rate for his or her trouble?

Any expenses that an executor incurs fulfilling the role can be claimed back from the estate. The executors cannot be paid an hourly rate unless the payment is specifically referred to in the will.



Back to top


 

 

 

What is a deed of variation?

A deed of variation is a document which varies the terms of the deceased's will. This is ordinarily a direction by a beneficiary to the executors to transfer all or some of the property to a particular person or persons (the recipient). The recipient does not have to have been a beneficiary under the original will. You can usuallly enter into a deed of variation provided it is done within 2 years of the testator's death, and the originally beneficiary has not benefitted from the original legacy.



Back to top


 

 

 

What is a trust?

A trust is where one or more people (there is a minimum of two people if the trust contains property) known as trustees legally own an asset (which can be money or property etc.) for the benefit of someone else (the beneficiary). The trustees can only use the assets contained in the trust for the benefit of the beneficiary.



Back to top


 

 

 

How can I avoid Inheritance Tax?

See Estate Planning section entitled "How can I avoid Inheritance Tax"



Back to top


 

 

 

What are the costs involved in obtainining Grant of Probate/Representation and Administration of Estates

 

 

We can help you obtain either a Grant of Probate (where the deceased leaves a valid Will) or a Grant of Letter of Administration (where the deceased did not leave a valid Will) which you may need in order to collect and distribute the assets of the estate personally; and administer the estate in accordance with the Administration of Estates Act 1925.

 

Fees

 

Our fees, stated below, are fixed and take into account the size, complexity, and the issues we are likely to encounter:

 

(a) two thousand pounds plus VAT; and

(b) 2.5% to 5% of the gross value of the estate plus VAT. 

 

 

Our fee assumes that:

 

  • There are no unusual funeral requests in the Will and that the body is not being donated for medical research

  • We are able to speedily identify all assets and liabilities of the estate

  • There are sufficient assets in the estate directly accessible to fund any IHT payable prior to obtaining the Grant and a loan is not being applied for

  • There is no technical or other impediment to the Grant being issued by the Probate Registry and the Will being proved is the last Will and testament of the deceased

  • There are no claims made against the estate by relatives, creditors or others and no caveats lodged at the Court

  • All beneficiaries reside in the UK and can be identified, traced and are at least 18 years of age and able to understand and sign documentation as required.

  • There are no material disagreements amongst the beneficiaries and / or the executors / administrators

  • The deceased's property is their main residence and in good condition with no outstanding insurance claims

  • Buyers for the assets, including the property, are found and sales will complete within 6 months of the issue of the Grant

  • Property was not let at death or continues to be let during the estate administration

  • The Will was validly executed and there is no partial intestacy

  • The estate is solvent

If any of these key assumptions are incorrect or change over time, we will need to provide you with a revised scope of work, revised timetable and revised fee estimate.

 

From time to time there may be additional work involved that may incurred additional fees. If this is the case, we will agree those fees with you first.

Such additional work might include, but is not limited to:

 

  • Completion of tax returns for any period prior to the date of death

  • Property or land sale or transfer if applicable

  • Changes to the legislation during the course of the administration of the estate

  • Trusts in which the deceased was a beneficiary at the date of death

  • Trusts set up by the deceased under the Will or Intestacy

  • Deeds of Variation for the beneficiaries

  • Financial advice on the suitability of the disposal of assets in the estate

  • Personal taxation of estate beneficiaries

  • The sale or transfer of the deceased's interest in a business or farm

  • Restitution for long term care funding incorrectly paid by the deceased

  • Costs associated with expediting any part of the work

 

In addition to our fees the estate will need to pay fees to third parties. These fees will be paid from funds we collect on behalf of the estate during the course once we have obtained the Grant of Probate/Letters of Administration. These fees are known as disbursements and include, where relevant, but are not limited to, the application fee for the Grant which will need to be paid to the Probate Registry; accountancy fees; chartered surveyors, bankruptcy searches, Land Registry, publication of statutory notices and family tree verification. 

 

If any of these key assumptions are incorrect or change over time, we will need to provide you with a revised scope of work, revised timetable and revised fee estimate.



Back to top


 


 

Back to Wills & Probate

 


  Profiles      Reviews        Recruitment        Notices & Disclaimer        Copyright        Contact        Site Map  



Davies is the trading name of Davies Solicitors Limited (registration number 5699025). The registered office address is 30 Woollards Lane, Great Shelford, Cambridge CB22 5LZ,
and Richard Davies is the Director. We are regulated by the Solicitors Regulations Authority (reference number 439685).
We do not accept service by fax or by e-mail unless otherwise agreed.