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Wills and Estates
Wills & Estates - FAQs

Why should I make a Will?

Making a Will ensures that your wishes are carried out so that you decide who inherits your property. Without a Will, the State rules who inherits, therefore your family, friends, favourite charities and relatives may get nothing. A Will can also help in minimising Inheritance Tax.

By making a Will you can guarantee care for your children through appointing Guardians for them, who should look after them if you were to die, and Executors who can deal with your affairs.

Without a Will the costs of administering your estate could and increase and be more than if you had not made a Will.

Making a simple Will for a fixed fee is highly recommended.

You should particularly make a Will if you are either not married or you are not in a registered civil partnership. The law does not automatically recognise cohabitants or partners who live together as having the same rights as husbands, wives and civil partners. Therefore, if you have lived together with your cohabitant for many years, he or she may be left with nothing if you have not made a Will.

What other matters can I seek legal advice upon, before making a Will?

You should take legal advice before making a Will, if

  1. You own all or part of a business.
  2. Want to include a trust in your Will to provide for your children or a disabled person
  3. Save tax or similarly to protect your assets in some way after you die.

If several people depend on you financially, they could make a claim on your estate.

If you do not live in the UK permanently or are not a British Citizen and/or you live here but have an overseas property.

I have already made a Will, therefore there is nothing else to do?

You should review your Will regularly to effect any major life changes for example if you are getting married, entering in to a civil partnership, separating, divorcing or if your civil partnership has dissolved. Such circumstances can make all or part of your Will invalid or inadequate.

Why do I need a Solicitor to write a Will?

There are a number of legal formalities to follow, to make sure that your Will is valid. Without the help of an expert, there is a real risk that you could make a mistake which could cause problems with your family, friends, relations and chosen charities after your death.

It is possible, for example, to obtain a cheap Will online, but if mistakes are made then such a Will may become invalid. In addition, some unregulated Will writers may push up their fees with additional costs such as storage charges.

Better to get it right first time from an expert.

What happens if I die without making a Will?

If you have not made a Will then the state decides who gets what under the Rules of Intestacy. Only married or civil partners and some other close relations can inherit under these rules.

If you have made a Will but it is not legally valid, the Intestacy Rules decide who gets what.

If you are divorced or your civil partnership has been dissolved, you cannot inherit under the same rules.

If you have lived/cohabited with another person the survivor gets nothing.

If I am married or in a civil partnership, what do I get if my spouse or partner has died, not leaving a Will?

If no children, the surviving spouse or civil partner inherits the whole of the deceased's estate outright. Parents/siblings get nothing.

If there are children, surviving spouse or civil partner inherits the first £250,000, personal chattels and half of the estate outright.

Children receive the remaining half of the estate at 18.

All the children of the parent who has died intestate inherit equally from the estate and this also applies where a parent has children from different relationships.

A child whose parents are not married or have not registered a civil partnership can inherit the estate of a parent who dies intestate. These children can also inherit from grandparents or great grandparents who have died intestate.

Adopted children, including stepchildren, who have been adopted by their step parent, have rights to inherit under the Rules of Intestacy. Otherwise you have to be a biological child to inherit. A child can still inherit if adopted after the death of their natural parent.

Children do not receive their inheritance immediately. They receive it when they either reach the age of 18 or marry or form a civil partnership under the age of 18. Until then Trustees manage.

If there is no surviving married or civil partner but there are surviving children who inherits?

The children will inherit the whole estate, irrespective of how much it is worth. If there are two or more children, then the estate will be divided equally between them.

If there is a surviving partner and a child of the person who has died who inherits?

If there is a surviving civil partner/spouse the child will only inherit from the estate if the estate is valued at over £250,000. If there are two or more children then the children will inherit in equal shares

  1. One half of the value of the estate over and above £250,000
  2. The other half of the value of the estate above £250,000 when the surviving partner dies.

All the children of the parent who has died intestate inherit equally from the estate and this also applies where a parent has children from different relationships.

A child whose parents are not married or have not registered a civil partnership can inherit the estate of a parent who dies intestate. These children can also inherit from grandparents or great grandparents who have died intestate. Adopted children, including stepchildren who have been adopted by their stepparent, have rights to inherit under the Rules of Intestacy. Otherwise you have to be a biological child to inherit.

Children do not receive their inheritance immediately. They receive it when they either reach the age of 18 or marry or form a civil partnership under the age of 18. Until then Trustees manage their inheritance on their behalf.

What about grandchildren and great grandchildren?

A grandchild or great grandchild cannot inherit from the estate of an intestate person until either

  1. Their parent or grandparent has died before the intestate person; or
  2. Their parent is alive when the intestate person dies but dies before reaching the age of 18 without having married or formed a civil partnership.

In these circumstances, the grandchildren and great grandchildren will inherit in equal shares the share to which their parent or grandparent would have been entitled.

What about other close relatives?

Parents, brothers and sisters, nieces and nephews of the intestate person may inherit under the Rules of Intestacy. This will depend on a number of circumstances

  1. When there is a surviving marriage or civil partnership
  2. Where there are children, grandchildren or great grandchildren
  3. In the case of nephews and nieces, whether the parent directly related to the person who has died is also dead
  4. The amount of the estate

Other relatives may have a right to inherit if the person who died intestate had no surviving married partner or civil partner, children, grandchildren or great grandchildren, brothers, sisters, nephews or nieces. The order of priority amongst other relatives is as follows

  1. Grandparents
  2. Uncles and Aunts. A cousin can inherit instead of an Uncle or Aunt(ie his or her parent) who died before the intestate person
  3. Half Uncles and Half Aunts. A half- cousin can inherit instead if the half- Uncle or half- Aunt who would have inherited died before the intestate person.

Is there anybody who can inherit?

Unmarried partners, lesbian or gay partners not in a civil partnership, relations by marriage close friends and carers have no right to inherit where someone dies without leaving a Will.

However even if you cannot inherit under the Rules of Intestacy, you may be able to apply to the court for financial provision from the estate.

What happens if there are no surviving relatives?

If there are no surviving relatives who can inherit under the Rules of Intestacy the State passes to the Crown and the Treasury Solicitor is then responsible for dealing with the estate. This is known as "bona vacantia".

What about jointly owned property?

Couples may own their home jointly. If they own it as beneficial joint tenants at the time of death, then when the first partner dies, the surviving partner will automatically inherit the other partner's share of the property.

However if the partners are tenants in common, then the surviving partner does not automatically inherit the other person's share.

If couples have a joint bank or building society account, then when the first partner dies, the other partner will automatically inherit all the money.

Will I have to pay Inheritance Tax?

Not everyone has to pay inheritance tax. This is only due if your estate including any assets held in trust or gifts made within 7 years of death is valued over the inheritance tax threshold which is currently £325,000.

The tax payable is 40% on the amount over the threshold of £325,000 or 36% if the estate qualifies for a reduced rate as a result of a charitable donation.

However since October 2007 married couples and registered civil partners can effectively increase the threshold on their estate when the second partner dies to as much as £650,000. Their Executors or Personal Representatives must transfer the first spouse or civil partner's unused inheritance act threshold or "nil rate balance" to the second spouse or civil partner when they die.

Are there any Inheritance Tax exemptions and reliefs?

Even if your estate is over the threshold, you can pass on assets without having to pay inheritance tax for example

  1. Your estate usually does not owe inheritance tax or on anything you leave to your spouse or civil partner who has their permanent home in the UK nor on gifts you make to them in your lifetime even if the amount is over the threshold.
  2. Any gifts you make to a qualifying charity during your lifetime or in your Will will be exempt from inheritance tax. A donation to Charity in your Will may also reduce the rate that tax is paid.
  3. If you survive for seven years after making a gift to someone then the gift is generally exempt from inheritance tax whatever the value.
  4. You can give up to £3,000 away each year either as a single gift or several gifts adding up to that amount. You can also use your unused allowance from the previous year but you use the current years allowance first.
  5. You can make small gifts of up to £250 to as many individuals as you like tax free.
  6. Gifts to someone getting married or registering a civil partnership are exempt up to a certain amount.
  7. If the deceased owned a business, farm, woodland or national heritage property, some relief from inheritance tax may be available.

 

 

The contents of these questions and answers are general principles and do not constitute legal advice. Each and every case is different and we recommend that you contact us so that we can help you with your particular case.

 

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