What is a Will?
A will is a document that describes where things you own (called your estate) will go, after your death, and to which recipients (recipients are called Beneficiaries). At a simple level just being clear about what you have in your estate and where you want it to go on your death is helpful to those that you leave behind responsible for tidying up your affairs (called executors), who incidentally you can choose as part of your will. Also, if your estate is large enough there may be tax advantages to be explored. As a wise man once said - Inheritance tax is a voluntary tax, and in the sense that you can do something about it if you plan. That is correct and having a Will is a good start.
Why would I want a Will?
The law says what will happen to your belongings if you do not have a will (you are said to have died intestate). This might be OK, but it might not, and chances are you will not know what the law says anyway. In addition, your executor will usually be grateful to know what you wanted to happen to your things when you pass on, otherwise they might have to choose and that can be really hard.
Do I need a Solicitor to write a will?
You can create a will yourself or use a will writing service without using a will Solicitor - and these are undoubtedly the cheaper options. However, of all the things in life that cost money, the charges that will Solicitors charge is amongst the most competitive for any legal service that they offer.
In fact, we take the view that it just isn’t worth using a cheaper option when you can get good advice for an extremely reasonable price. There is a view that if you go for the cheap option and there is a problem then you won’t see it anyway, but we don’t subscribe to that. After all, if you have taken the time to read this far then whatever you are leaving behind is probably important to you, or your family or friends, and probably worth a penny or two – so why save a small amount now and risk a large amount later?
What else do I need to consider?
Getting Married? Unless you prepare your will in contemplation of marriage, getting married will revoke your will – so you may want to address this especially if this is your second (or later) marriage and you already have children, or other things that need to be planned carefully.
You will need your will witnessed, and there are rules about who can witness your will, and who can’t (eg if you leave someone something in your will, they can’t witness the will).
You need to think about where you store your will – somewhere your executors will find it maybe several years later.
If you want to make small changes later, you can do this without having to re-do the entire will. This is called a codicil and can be useful – but be careful about what you change!
Think about whether you also want a Lasting Power of Attorney preparing at the same time in case you need someone you trust to look after your affairs in future.
What is probate?
The “Grant of Probate” is the document that the court provides showing its acceptance of the Will as representing the last will and testament of the deceased and acknowledging the executors legal right to deal with the deceased estate.
Generally speaking the application for probate will, if successful, result in either:
- The “Grant of Probate” where there was a will; or
- “Letters of Administration” where the deceased died intestate (ie without a will).
Collectively these are called Grants of representation.
Why do we have probate?
As described above to allow the court to vet the will and bestow power on the executors to act.
Or, a more cynical view is that the government wants to know what the value of the estate is early on – so that if there is the likelihood of inheritance tax being due, they know where to focus their attention. These are the steps involved in Probate:
- Identify the estate assets and liabilities
- Pay inheritance tax to HMRC on those
- Apply for Grant of representation, sell assets/collect monies in, and pay any additional tax due.
- Prepare estate accounts.
- Providing the government doesn’t challenge anything, distribute net proceeds to beneficiaries.
Do I need help from a Probate Solicitor?
Most executors can deal with most of the day to day collection in of assets and their distribution, but using a probate Solicitor to help with the process and forms can be cost effective. Firms will happily assist in managing the estate and you can specify what involvement you would like probate Solicitors to have, if any.
Wills are often used to set up trusts in order to achieve the wishes of the deceased. The following are the most common:
Discretionary – Trustees (appointed by the will to manage the trust), manage the trust assets on behalf of a number of beneficiaries, but ultimately the trustees decide who gets what benefits. This is the opposite of an absolute trust (also called a bare trust) where the trustee gets no power to decide. This can be useful to protect family assets, or vulnerable beneficiaries.
Property (Right of occupation) – typically ensuring that a spouse can remain in a house (intentional rhyming), but that the deceased’s share in that house doesn’t pass to the spouse, but rather somewhere else.
Life Interest (Interest in possession) – This enables someone to have the right to income (and use) of an asset, but providing capital growth to the beneficiaries, often future generations. This can be useful in tax efficient planning, and protecting children’s assets.
Taxation on trusts is a complex area – if you are thinking about using one of these devices then you should undoubtedly be thinking about paying for the right advice, as you don’t want to get this wrong.