Wills and Lasting Powers of Attorney in Tyne and Wear and Northumberland by an experienced professional.
Why do I need a will?
A will ensures that your assets pass to your loves ones, or charities of your choice. If nothing else, making a will makes the administration of your Estate easier and cheaper for your loved ones on your death. Without a will, your assets may pass to distant relatives, or even to the crown.
What is a will?
A will is a legal document that enables you to dispose of your assets on your death. A will must conform with certain laws such as the Wills Act 1837. The content of a will generally consists of; executors and trustees, funeral wishes, legacies, residue, and attestation (signing).
Do I need mental capacity to make a will?
The short answer is 'Yes'. If you have condition which may affect your ability to make a will, we would normally ask for a letter from your doctor to confirm that you have the requisite capacity. This letter would be used as evidence of capacity after your death, should anyone challenge your will.
Who should I choose to be my executors?
Your executors and trustees play very important roles. Executors are responsible for the administration of your estate after your death and hold the estate on trust for the beneficiaries. If there are any continuing trusts in the will i.e. a legacy for a minor subject to them attaining the age of 18, 21 or 25, the trustees are responsible for investing the legacy until the child attains that age. Therefore, they must be trustworthy. An executor and trustee can also be a beneficiary.
How do executors administer my estate after my death?
The administration of an estate
generally involves arranging your funeral, closing savings and investment
accounts, selling property, settling any debts and costs, dealing with any tax
issues and distributing the remainder of the estate, known as the 'residue' to
the beneficiaries of the will. They are
required to account to the beneficiaries and liaise with them throughout the
administration of the estate.
Who should I choose to be the guardians of my children?
If you have minor children (under the age of 18) you should appoint guardians to take care of the children should you (and anyone else with parental responsibility) die before they reach the age of 18. You should give some thought to the age of the guardians, where they live and if they are suitable to care for your children.
What is a grant of probate?
A grant of probate is a document that is often required to administer the estate. It is also known as 'proving the will'. The executors can attend their local Probate Registry to obtain a grant of probate, or contact a solicitor to obtain this on their behalf. A grant is required when, for example, when the estate contains certain assets, such as property, stocks and shares, or savings.
What are specific legacies?
Specific legacies are gifts of specific assets, such as jewellery, a painting, family heirlooms etc. Generally, if the asset is no longer part of your estate at the date of your death, the gift would fail. Such legacies should be identified in detail to avoid any confusion after death i.e. 'my 18 carat gold three diamond engagement ring'. If making a gift of a property, consideration should be given to the possibility of the property being sold to fund care fees prior to death.
What are pecuniary legacies?
Pecuniary legacies are gifts of cash i.e. I give the sum of £100,000 free of taxes to my nephew....' Pecuniary legacies take priority over the residue, therefore, if your estate is worth less than the legacy at the time of your death, the legacy would take priority and be paid in part, and the residual beneficiaries may not inherit from the estate.
What is a will property trust?
It is possible to gift your property, (or share of a property) into a will trust. There are different types of trusts available, and coherent advice should be sought, as trusts can be complex and have undesirable tax consequences. Trusts can provide protection should you wish to avoid leaving an outright gift of property to an individual i.e. you wish to allow your partner or spouse a right to live in your property after your death, however on his/her death the property then passes to your children.This type of trust is popular with couples who are married or co-habiting and have children from a first marriage or relationship.
Your property must be held as tenants in common with your co-owner for a gift of your share of a property to take effect in your Will. We can check this and arrange for a 'Notice of Severance' to be signed if necessary.
You may wish to leave instructions as to the type of funeral you would prefer. This may be straightforward i.e. 'I would like to be cremated'. Alternatively you may wish to add further details, such as naming a Church where a ceremony should be held, or where you would like your ashes to be scattered. Your funeral is generally paid from your bank account, and funds can be released prior to a grant of probate being obtained.
The residue of your estate is defined as the assets that remain in your estate after all other legacies are made, and all debts, taxes, administrative fees, probate costs, and court costs are paid. The residue does not include assets that pass outside of your estate, such as bank accounts and policies held in joint names, some pension assets and life insurance, and assets held in certain types of trusts.
Residual beneficiaries inherit the residue of your estate. They can be your spouse, children, stepchildren, other family members, friends etc. and charities. Inheritance tax should also be considered, as generally a spouse, civil partner and UK based charities are all exempt from inheritance tax.
Your will must be correctly signed by you (the 'Testator') and witnessed to ensure that it is legally valid. Your signature should be signed in the presence of two independent witnesses (not relatives or beneficiaries in your will), who are over the age of 18, and of full mental capacity. They should both be present when the will is signed by the Testator, and the witnesses should then sign in each other's (and the Testator's) presence. The Probate Registry will check that the will has been validly signed prior to issuing a grant of probate after death.
Who can be a Witness to my Will?
A witness should not be a beneficiary, or their spouse. If they are, any legacy to that beneficiary may be void, however the remainder of the will shall be valid. The witnesses can be called to give evidence if there are any ambiguities in your will, or if your capacity is questioned.
What if I have Foreign Assets?
From 17th August 2015, the EU Succession Regulation came into force enabling UK nationals to add a declaration in their Will stating that the Laws of their nationality should apply. This means you can choose to have one UK Will that deals with your assets in Europe and this will override any forced heirship rules which would otherwise exist. Therefore, if, for example, you own a property in France, you can now dispose of it by your UK Will.
How do I make a change to my Will?
After your will has been legally executed, you must make a new will, or a codicil, should you wish to make a change to your original will.
Inheritance Tax ('IHT')
As a general guide, if your estate is worth more than the tax free allowance, known as the 'Nil Rate Band' (currently £325,000 per person) at the date of your death, inheritance tax is generally charged at 40% of the excess. If your spouse, civil partner, or a UK charity inherits the whole estate, the estate shall be exempt from IHT.
If you are married or in a civil partnership, up to £650,000 can be bequeathed free of IHT on the second death to non-exempt beneficiaries, such as children or other relatives.
From April 2017, you may also benefit from a Residential Nil Rate Band of £100,000 (this increased to £125,000 in April 2018, £150,000 in April 2019 and £175,000 in April 2020), if you leave a gift of your property (or share of) to your lineal descendants i.e. children, grandchildren etc.
Many other factors apply when it comes to IHT planning, and therefore, if you are concerned about this, coherent advice should be sought.
How do I protect my home from care home fees?
We (along with most Solicitors) do not generally recommend transferring assets into a trust during your lifetime, to avoid paying for your future care. This is because to do so may be deemed to be 'deprivation of capital'. The Local Authority may very well set aside the trust in the future, which would defeat the purpose of setting it up. If you are married, or in a civil partnership, you may be able to protect part of your estate from care fees legitimately, and we will be happy to explain this to you.
Making a Will or Power of Attorney has never been easier. You can make a Will and Power of Attorney from the comfort of your own home, without any long winded questionnaires.