Live webchat - everything you need to know about making a will - Weds 18 April 1-2pm

elizahugh

I am a British expat living in the Netherlands. I moved here to be near my daughter and her family. I am the widow of a Dutchman and she is the wife of a Dutchman. My question is - I have a British State Pension and I would like to ensure that on my death whatever is left of it goes into my estate. I presume I would have to make a British Will - how do I go about it?

Unfortunately, with a few exceptions, a British state pension ceases when the pensioner dies. Even where one of the exceptions applies, any benefits can only pass to a surviving spouse or civil partner, so in your situation there is nothing to pass to your estate.

The exceptions are:

• A surviving widow, widower or civil partner may be entitled to some basic state pension based on the deceased’s pensioner’s National Insurance Contributions (NIC) record, but only if the survivor is not entitled to a full basic state pension based on their own NIC record and does not remarry or enter into a registered civil partnership before they reach state pension age

• If the deceased state pensioner contributed towards an additional State Pension (also known as State Earnings Related Pension Scheme or SERPS or State Second Pension) the surviving spouse or civil partner may be able to inherit some of the additional State Pension

• If a person reaches state pension age but does not claim it and then dies before receiving any state pension, a surviving husband or civil partner may inherit extra state pension or receive a lump sum from the deceased’s state pension but only if they reach state pension age on or after 6 April 2010. A surviving wife inherits automatically without having to reach pension age on or before 6 April 2010.

The situation is different with respect to non state pensions (private pensions), where there may be a lump sum or pension payable to another on the death of the original pensioner. However, these are frequently written in trust, which means that the benefits do not form part of the estate of the deceased and are not distributed in accordance with the deceased’s will, or under the intestacy rules if there the deceased died without leaving a valid will. Instead, the benefits pass under the terms of the trust and often the pension holder will complete a letter of wishes for the trustees, giving details of who the pension holder would like to benefit after his or her death.

It is advisable to check all pension entitlements and find out whether there are any benefits after your death and if so, who will receive them. You can usually amend any wishes to your trustees as to beneficiaries.

FeeTee

Hello Hazel

Our wills specify what happens with our house and (what's left of) our savings. I have also added specific bequests for my engagement ring etc. But what to do about the rest of our "things". Some worth a bit of money, some worth nothing (but some with sentimental value) - but I'd hate to think of any of them causing arguments between our three children. Equally it seems ludicrous to lists every last thing in the will. Any suggestions?

There are a number of ways in which you could consider dealing with your personal possessions not already detailed in your will:

1. You could have a meeting with all three of your children and discuss with them how your various personal items not listed in your will should be shared between them and any other beneficiaries (such as grandchildren) and once you have an agreement you could also consider listing all the items and you, your husband and your children all signing and dating to confirm your agreement. Although this would not impose a legal obligation on your executors in the same way as the contents of your wills, it would be good evidence of the decisions reached.

Please note, however, that if some of the items did not exist at the time of the respective deaths of you and your husband, then the beneficiary has no right to that item. The same is true of such gifts made by will unless the will includes a substitute provision. Equally, if you acquire new personal items these would not be included in a list which predated the acquisition.

2.You could amend your wills to include all such items, but as you rightly state it might make your wills very lengthy and again would not cover any original items being gifted, sold etc during your lifetime, nor deal with new items owned by you at the date of your death. Therefore you would need to review your wills frequently and make new wills or codicils (like a PS to a will, to be read in conjunction with the original will). This would provide legal certainty.

3. You could leave your Executors to make the decisions about the personal items not listed in the will, and this is the usual position. However, if your three children are named as the Executors and all wish to act and cannot agree on the division, that may not resolve the issue.

MaggieP

Hello Hazel
I keep urging my married children to make wills, one of them has two small children, will whatever they have automatically go to the other one on death?
I would appreciate your answer, to enable me to pass it on! Thanks

If either or both of your daughters die without a valid will, the intestacy rules would determine who administers and inherits the estate and how much each beneficiary will receive. Please refer to my reply to Rosiemus Tue 10-Apr-12 10:24:41 above.

In addition, your daughter who has two small children may wish to make a will in order to appoint guardians to look after her children should both she and her husband die while one or both of the children (and any future children!) is aged under 18. The intestacy rules do not cover this issue.

kittyp

How very timely! Mr Kitty and I are revising our wills. To a point they are straightforward in that everything we have will go to whichever of us survives the other. But...Mr K has a daughter from his first marriage and we also have one together. We would like any of my assets left over to go to my daughter (with a gift for my step daughter who will obviously inherit from her own mum) and any of his assets left to be split equally between the two of them. How best to arrange this a) to avoid unnecessary angst and taxes and b) so that the surviving one of us still gets to use as much as they need to live on before the rest goes to the girls?

This is a common situation. The usual way of dealing with it is for each of you to include a trust in the will giving the survivor the right to exclusive occupation of the home and the use of all other assets, rather than an absolute gift of the estate.

This means that on the death of either of you, the assets subject to the trust would automatically pass under the terms of the trust. In your will this would be to your husband if he survived you and then your daughter. Your will would also include a separate clause leaving a gift to your stepdaughter. Your husband’s will would leave the trust fund initially to you if you survived him, and then equally to his two daughters. Trustees would need to be appointed in the wills (who could be the same people as the executors) and you should each sign a separate letter of wishes at the same time as the wills are signed, expressing your wishes to the trustees. The letters usually ask the trustees to ensure that the survivor is able to live in reasonable comfort, even if that means using some of the capital and thus leaving less for the next beneficiaries.

I would suggest that you take independent legal advice and get the wills drawn professionally because they can seem quite complex to a lay person, although an experienced will writer or solicitor will be able to advise you on the structure and tax position without the wills being very expensive.

rosiemus

Can I ask about executors? How best/who to choose? And what happens to our will if we outlive one or both of the executors?

What a good question! It is important to choose executors carefully to avoid delays or disputes after your deaths.

You cannot compel someone to act as Executor as they can always renounce (refuse to take on the role at all). Alternatively, an executor can choose to have power reserved, where he chooses not to act as executor but has the right to apply for a separate Grant at a later stage, if necessary, providing there is another executor willing to act and obtain the initial Grant. To try and avoid executors renouncing, it is a good idea to ask your proposed executors before making your will if they would agree to act, although they could still change their minds when the time came.

You can appoint one or more executors, although a maximum of four can apply for a Grant of Probate. They have to act jointly, ie agree all decisions so if you appoint more than one, you need to feel confident they will be able to communicate and agree matters or at least decide who will renounce or have power reserved in order to let the remaining executors administer the estate.

You can appoint substitute executors, who would only act if the prior executors had died before the maker of the will or who renounced probate.

If, despite all your best efforts, there are no executors willing and able to act as executor, the residuary beneficiaries become responsible for administering the estate and would apply for a Grant of Letters of Administration (with Will Annexed) instead of a Grant of Probate, but both types of Grants entitle the named person(s) to administer the estate in full. The residuary beneficiaries are the people who get what is left over in the estate after any specific or money legacies have been paid.

rosiemus

Actually - if I can ask another. My BIL died intestate and this caused all manner of problems for his family. Can you explain a bit more about what happens in these circumstances and how best to deal with them?

Obviously, the first point I would make is that it would have been better if the deceased had made a will so his estate passed to his preferred beneficiaries. Leaving a will may also minimise the risk of challenges to the estate. However, about a third of the population die without leaving a valid will, so the problems which your brother in law’s family experienced are unfortunately, quite common.

Where someone dies without leaving a valid will, the intestacy rules determine who inherits and also who is responsible for administering the estate. You can find the rules at www.justice.gov.uk/courts/probate/why-make-a-will.

The intestacy rules only cover those assets which form part of the deceased’s estate. This means:

• any property owned jointly with another as joint tenants and where the co-owner survives will pass by survivorship to the surviving owner and not under the intestacy rules
• any property held in trust passes under the terms of the trust and not under the intestacy rules (many insurance policies and pensions are written in trust)

The intestacy rules are based on the value of the estate and which blood relatives survived the deceased. The rules are different depending on whether or not there is a surviving spouse or registered civil partner. I’ve copied the relevant part of the rules from the above website. The rules are for deaths after 1 February 2009. The person(s) highest in rank for inheriting is also responsible for administering the estate:

Deceased person dies leaving these relatives:

After the payment of funeral expenses, tax and all other debts owed by the deceased, the rest of the estate goes to:

A spouse or civil partner (but no children or other issue) and either parents or brothers or sisters of the whole blood or issue of brothers and sisters of the whole blood who predeceased the deceased

1. Where the net estate is not more than £450,000 – everything to spouse/civil partner

2. where the net estate is over £450,000 – the first £450,000 plus personal possessions plus half of the balance over and above £450,000. The other half of the balance over and above £450,000 to the deceased’s parents equally; but if no parents then to brothers and sisters of the whole blood and to any children or other issue of brothers and sisters of the whole blood who have predeceased the deceased in equal shares.

A spouse or civil partner and children

1. Where the net estate is not more than £250,000 – Everything to spouse/ civil partner

2. Where the net estate is over £250,000 – the first £250,000 plus personal possessions to the spouse/civil partner

Half of the rest is shared equally amongst the children .

The spouse/civil partner gets the income or interest on the other half during his/her lifetime, and when the spouse or civil partner dies, the capital goes to the deceased’s children equally.

A spouse or civil partner (but no children), and either parents, or brothers or sisters of the whole blood.

1. Where the net estate is not more than £450,000 (for dates of death after 1 February 2009) – Everything to spouse/ civil partner

2. Where the net estate is over £450,000 for dates of death after 1 February 2009 – £450,000, plus half of the rest, plus personal possessions to spouse/ civil partner.

The other half to the deceased’s parents equally; but if no parents, then to brothers and sisters of the whole blood in equal shares.

Children , but no spouse or civil partner Everything to children in equal shares

Parent(s), but no spouse or civil partner, or children Everything to parents in equal shares.

Brother(s) or sister(s), but no spouse or civil partner, or children or parents
Everything to brothers and sisters of the whole blood equally.

If there are no brothers or sisters of the whole blood, then to brothers and sisters of the half blood equally.

Grandparent(s), but no spouse or civil partner, or children, or parents, or brothers or sisters

Everything to grandparents equally.

Uncle(s), Aunt(s ), but no spouse or civil partner, or children or parents, or brothers or sisters or grandparents Everything to uncles and aunts of the whole blood equally.

If there are no uncles or aunts of the whole blood , then to uncles or aunts of the half blood equally.

No spouse or civil partner and no relatives in any of the categories shown above

Everything to the Crown

If any of the deceased’s children, brothers and sisters or uncles and aunts die before him or her, and leave children of their own then the children of the predeceased relative take their deceased’s parent’s share of the intestate estate in equal shares.

You will note that there is no provision for anyone who is not a surviving spouse or registered civil partner or a blood relative. This means that cohabitants, no matter how longstanding the relationship, are excluded as are step children and friends.

The Law Commission has recently reported on the current intestacy rules and recommended changes to the law. Lord Lester of Herne Hill has introduced a Private Member’s Bill, the Inheritance (Cohabitants) Bill, to implement the Commission’s recommendations to include cohabitants in the rules. However until there is a change in the law (which is not certain) cohabitants may continue to be forced to make a claim against the estate for reasonable financial provision under the Inheritance (Provision for Families and Dependants) Act 1975.

If it is possible following an intestacy, all beneficiaries and anyone with a potential claim to the estate should try and agree a distribution of the estate; take legal advice and consider effecting a Deed of Variation setting out the terms of the agreed division.

jakesgran

Dear Hazel

A friend lost her husband and although he had left everything to her it still took forever for everything to go through and she had a lengthy period where she had nothing to live on. What can you recommend to avoid this situation arising for me or my husband?

First, I am very sorry to learn of your friend's unfortunate experience with finances following the death of her husband. It is obviously particularly difficult to be facing financial problems after a bereavement.

However, any property which is held as joint tenants with a surviving co-owner passes by survivorship to the co-owner, rather than under the terms of the deceased's will or intestacy (if there is no valid will). Most joint bank accounts are held by the account holders as joint tenants. This means that on the death of the first, the bank will change the account into the sole name of the survivor simply on production of the deceased's death certificate. There should be no delay in the survivor being able to access the account.

Also, assets written in trust (such as pensions and insurance policies) can be accessed with a death certificate and usually a simple form completed by the administrator of the estate.

Therefore it is wise to hold at least some property jointly as joint tenants with another and to check whether pension or insurance policies are written in trust so that it is not necessary to obtain a grant to release the assets, and there is almost immediate access to the assets even if there are delays in administering the estate.

bakergran

My daughter hasn't made a will yet, although she's only 27. My other half sorted all ours out so I don't know whether I should be telling her she needs to start thinking about it? When do you absolutely have to create a will?

As the main purpose of wills is to distribute the deceased's assets, there may be an argument to delay making a will until a person has assets to pass to intended beneficiaries. Having said that, a will is also useful to appoint guardians for minor children, ie those aged under 18, and also to express any strong wishes as to funeral arrangements, although these wishes are not legally binding but persuasive.

People frequently makes wills after the birth of the first child or buying their first home.

A will is also important if a person wishes their estate to pass to people other than those covered by the intestacy rules (such as friends, charities or cohabitants) or in different proportions to those set out in the intestacy rules. Please refer to my answer to Rosiemus Tue 10-Apr-12 10:24:41 for details of the intestacy rules.

CariGransnet

Have you made a will? Do you have questions about making one, about Probate, Power of Attorney or trusts?

Solicitor Hazel Jones of Which? Legal Service is an expert in helping people through what can be one of the most stressful situations after the loss of a loved one. This can range from what to do if someone has died without making a will, why it is so important to make a will and what happens to someone's estate after the loss of someone.

Add your questions for her here.

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