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Practical advice for making a will

Making a will

Solicitor Hazel Jones of Which? Legal Service is an expert in wills, probate and Power of Attorney. She joined us at GNHQ to answer your questions on making a will and dealing with the stressful aftermath of loss.

When to make a will | What happens if you don't have a will? | Choosing your executor | Naming your children | Wills and pensions | Specific items | Power of Attorney | How to make your will legal

 

When should you make (or re-make) a will? 

Q: My daughter hasn't made a will yet, although she's only 27. 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?

A: As the main purpose of a will 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, i.e. 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.

 

Q: I made my will about 20 years ago. It's pretty straightforward - everything to my husband and, if he's died, to be divided equally among our children (mine and ours). What circumstances mean you have to update a will or do they basically last for ever?

A: It is good practice to review your will say every 5 years. However it may be that no changes are necessary. Please note you do not need to make a fresh will if anyone named in your will changes name or address, providing you are still happy with any gift made to that person or wish their appointment as executor to continue. Equally it does not matter if your address has changed-or you have changed name as long as you can be identified as the maker of the will.

You should make a new will if you wish to change the value or type of gift to a beneficiary or to add new beneficiaries or exclude beneficiaries or to change the executors. A valid will lasts until it is destroyed or superseded by a later will.

 

What happens if you don't have a will (or its settlement is delayed)?

Q: My brother-in-law 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?

A: 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 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 here.

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. They are different depending on whether or not there is a surviving spouse or registered civil partner and they are applicable to deaths after 1 February 2009. The person(s) highest in rank for inheriting is also responsible for administering the estate.

It is worth noting 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.

 

Q: 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?

A: 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 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.

 

Q: A friend lost her husband and although he had left everything to her it still took forever for things 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?

A: 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.

 

Choosing your executor

Q: 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?

A: 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.

 

Naming children in your will 

Q: My husband 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 and any of his assets left to be split equally between the two of them. How best to arrange this to a) 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?

A: 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.

 

Q: Is there a way to ensure that if your husband remarries after your death, your children get their previously agreed inheritance? (i.e. that it doesn't go to a new wife and perhaps her children?)

A: It's worth referring back to my earlier reply to kittyp.

In your case you should consider leaving your estate on trust for your husband for life (or earlier if you wish) and then to your children. This would mean your husband did not own the assets in trust. Therefore he could not give them to anyone else but he would have the use of the assets during the trust period. You could make it clear to your trustees in a separate letter of wishes that he was to be prevented from using all of the trust assets, leaving nothing for your children!

 

Can you include your state pension in your will?

Q: I am a British expat living in the Netherlands to be near my daughter and her family. I am the widow of a Dutchman and she is the wife of a Dutchman. 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?

A: 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.

 

What about specific items?

Q: My husband and I both made wills leaving everything to each other before we were married. I have made a new will with the same terms but he refuses to do this (too busy, too expensive etc) I am sure it is necessary to re-make a will if you marry. If he were to die before me what would be the implications for me if he hadn't made a new will? He has no dependants but has three siblings. I have two children from my first marriage and five grandchildren.

A: You are correct that a will is automatically revoked (cancelled) by marriage unless the will specifically states that it is made in contemplation of marrying a named person and is to remain valid after the marriage.

If your husband were to die without having made a will subsequent to your marriage and assuming that his current will was not expressed to be made in contemplation of his marriage to you, he would die intestate and the intestacy rules would govern how his estate would pass. In your case:

- If the net estate is not more than £450,000, you would inherit everything. You would also be solely responsible for administering the estate.

- If the net estate is over £450,000, you would inherit the first £450,000 plus personal possessions plus half of the balance over and above £450,000. The other half of the balance would pass to your husband ‘s parents equally (if either survive, which I presume is not the case); 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. You would be responsible for administering the estate together with the other beneficiaries.

 

Q: I have written a letter of intent for my jewelry to go with my will. Assuming I haven't sold it all to pay for care how legal is the letter of intent and how valuable should something be before it's mentioned in your will? I am not talking about the Koh-i-noor here but very sentimental along with monetary value.

A: Unless the letter of intent is clearly identified and referred to in your will, it is not legally binding. However, it imposes a moral obligation on your executors to follow your wishes.

If, however, the letter is referred to in the will or codicil and the letter was in existence at the time of the will or codicil, then it is incorporated into the will or codicil. And its contents are legally binding. Unlike a will a codicil, the letter does not need to be witnessed but it is good practice to sign it so that there can be no question that you wrote the letter.

It is better not to rely on incorporation of documents because after your death, the onus is on the person applying for probate to prove the letter was in existence when the will or codicil was signed and witnessed and that the letter is properly identified and referred to in the will or codicil. If incorporated, the letter is admitted to probate, along with the original will and codicil.

I don’t think I can advise you as to how valuable an item needs to be in order to justify specific inclusion in your will or codicil. There are two issues. First, in terms of monetary value, you need to ensure that your beneficiaries receive the proportion of the estate that you wish, taking account of any items of jewellery. Secondly, in terms of sentimental value, you need to make sure that items go to the intended beneficiaries. I would therefore include in any new will or a codicil any items where it is important to you that a particular person receives it, even if its market value is low. I appreciate that if there are many items, this will make the will or codicil lengthy, but it will give you peace of mind.

Finally, if you leave an item to someone in your will or codicil which you do not possess at the date of your death because for example you have sold it to pay for care fees then unless your will/codicil provides otherwise, the gift will fail and the beneficiary will not receive any compensation or other item in lieu of the failed gift.

 

Q: Our wills cover 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 are worth a bit of money, some worth nothing (but with sentimental value) but I'd hate to think of any of them causing arguments between our three children. Equally it seems ludicrous to list every last thing in the will. Any suggestions?

A: 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 p.s. 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.

 

Power of Attorney

Q: I set up a Power of Attorney before it was changed a few years ago. We then moved to France where we are now residents. Is the Power of Attorney still valid, and can my husband set one up in the UK?

A: You will have executed an Enduring Power of Attorney (EPA), if it was made before the Mental Capacity Act 2005 came into force with respect to Powers of Attorney on 1 October 2007. A valid EPA may still be used, even though it is not longer possible to make an EPA.

Your husband would have to make a Lasting Power of Attorney (LPA) (Property and Financial Affairs). You can access the forms and information here. The LPA cannot be used until it has been registered with the Office of the Public Guardian, and various formalities completed.

Please note that a LPA will enable the Attorneys to deal with property in England and Wales and at the discretion of the financial institution concerned, in other jurisdictions. You would need to check French Law and procedure as to the position of any EPA or LPA to deal with any assets in France.

 

Q: I set up a Power of Attorney when my husband died nine years ago. Is this still valid or do I make new one? I'm happy with the present one.

A: You do not need to make a fresh Power of Attorney unless you wish to cancel it and make some changes. In such a case you would need to make a Lasting Power of Attorney as the law has changed since you made your Power of Attorney.

 

Q: We have been told that our original power of attorney is insufficient and we need two, one for finances and one for health is this correct please?

A: The Law relating to Enduring Powers of Attorney (EPAs) changed on 1 October 2007, following the Mental Capacity Act 2005, and replaced EPAs with Lasting Powers of Attorney (LPAs). Before 1 October 2007, you could make an EPA appointing Attorneys to deal with all or any part of your property and financial affairs, and once you wished the EPA to be used, or you had lost mental capacity, the terms of the EPA were legally binding. Although it has not been possible to execute an EPA since October 2007, any valid EPA made before 
that date and which has not been revoked (cancelled) is still binding.

There is no need to make a new LPA to deal with your property and finances if you are happy with the arrangements made in your EPA. The forms and procedure to prepare and register a LPA are much greater than for an EPA, so I would not advise cancelling your EPA and making a LPA unless necessary. One of the changes is that a LPA has to be registered with the Office of the Public Guardian (OPG) before the LPA can be used, whereas an EPA only has been registered if the maker of the EPA is losing or has lost mental capacity. An EPA can be used without registration providing the maker wishes it to be used and retains mental capacity. It must be used after mental capacity has been lost. There is a registration fee (currently £130 unless the maker is entitled to a remission or exemption of fees because of his/her financial circumstances).

Before October 2007, it was not possible to make legally binding arrangements appointing Attorneys to make health and welfare decisions on your behalf. You could make an advance decision to refuse treatment and also an advance directive (also known as a living will) which expressed your wishes as to how you wished to be cared for if you lost mental capacity. It is still possible to make an advance decision and advance directive/living will.

However, It is now possible to make a LPA (Health and Welfare) appointing Attorneys to deal with medical and welfare issues, which is wider in scope than advance decisions and living wills. You can also make a separate LPA (Property and Financial Affairs) to deal with your property and finances, which appoints Attorneys to act on your behalf. Whereas the Property and Financial Affairs LPA can be used as soon as it has been registered with the OPG, the Health and Welfare needs to be registered and then can only be used when the maker has lost mental capacity. Otherwise, he or she is expected to make the decisions.

A LPA needs to be registered with the OPG before it can be used. The registration fee for a LPA is the same as for the registration of an EPA.

To summarise, if any existing EPA is still appropriate to your circumstances, you do not need to make a LPA (Property and Finances). A Health and Welfare LPA should be considered if you are concerned about the possibility of losing your mental capacity and wish to have the reassurance that the people you have chosen to act as your Attorney(s) will make the necessary decisions on your behalf in accordance with the conditions and guidance set out in the LPA. A Health and Welfare LPA may not be necessary if you are confident that your next of kin understand and would carry out your wishes without a formal document.

 

Can you make a will yourself? What is legal?

Q: I came across some of those will 'form' type things in a local stationery shop. If they are witnessed correctly are these legally binding?

A: A homemade will using a pre-printed form is every bit as legally valid as a professionally drawn one providing it is correctly signed by the maker of the will in the presence of two witnesses, who should not be beneficiaries under the will. Will packs sold in stationery shops invariably include instructions on the proper signing and witnessing of the will.

However, a professionally drawn will is appropriate if you need tax planning advice or wish to have trusts in your will or if there are any complications. But for a straightforward estate a homemade will is fine.

 

Q: What are the minimum qualifications one should look for in a will writer?

A: There are two issues that need addressing. The first is the qualifications and experience the will writer so that comprehensive and appropriate advice can be given.

The second is whether there is any regulation of the will writer (in case a complaint needs to be addressed) and insurance (in case a negligence claim needs to be made).

You should check whether a will writer (including solicitors) has a specialist qualification in will writing such as the STEP (Society of Trust and Estate Practitioners) certificate or diploma or membership of STEP, or in the case of solicitors membership of the Law Society's Private Client Section. You should also ask how long they have been writing wills and whether they deal in tax planning and trust advice. These criteria would suggest a good knowledge of all relevant matters.

Secondly you should check what professional body regulates the will writer; what disciplinary powers the body has over its members and the maximum cover on professional negligence insurance. Proper regulation and insurance should help prevent poor practice and give redress if problems arise. Please note all solicitors firms are regulated by the Solicitors Regulatory Authority and must hold minimum insurance of £2 million.

 

Q: My husband and I have made a will here in the UK. However, our sole property is in Portugal. We are currently living with our daughter in the UK and are renting out our house in Portugal. Our will leaves everything to our daughter in the event of both our deaths. Is a UK will valid in Portugal?

A: Assuming that you are domiciled in England and Wales, and your will was made in England and Wales, your wills cover all your worldwide assets, apart from any house abroad. It will therefore exclude your property in Portugal. You should take legal advice from a Solicitor qualified in Portugese wills and succession, either in this country or in Portugal, and make a separate Portugese will which should be expressed to deal only with the Portugese house.

Ideally you should also amend your UK wills to exclude your Portugese property because some countries have forced heirship laws which mean that you are forced to leave your property to certain relatives, and it may be that Portugese law conflicts with that of England and Wales in this respect.

I have no expertise in Portugese wills and probate, but it is unlikely that Portugal would accept your UK wills and in any event, you would need a separate Grant issued in Portugal to deal with the Portugese property. 

 

Q: We made a will 30 years ago. Now we wish to add a codicil to amend the details of beneficiaries. As oldies, we need to know the most inexpensive way of doing this. Do we have to do it through a solicitor or can we write it out and have it witnessed by friends? 

A: You do not need a solicitor or other professional to prepare your codicils. Providing the codicils are in writing (typed or handwritten) and signed by the maker and witnessed by two witnesses who are not beneficiaries under the will or codicil and in the presence of each other, the codicil is valid. You should date the codicil and refer to the will which you are amending by the date of the will. You should repeat your full name and address in the codicil.

Please ensure that the codicil is stored safely with the will so that your executors are aware the original will has been amended.

 

 

 

 


 

 


 

 

 

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