Making a Will
There are some things that can’t – or shouldn’t – be included when making a will. There are various reasons for this, some of which are legal ones, some a common sense ones, and some are simply because you cannot instruct someone to do something that is against their will (and/or against the law).
Although your last will and testament is your own personal document, allowing you to decide who will receive what from your estate, when making a will it should not necessarily be used as a way to send final messages. There are other ways to do this, including letters and notes for your solicitor.
In your will, you cannot leave a property that is in joint tenancy to someone not named on the lease. This is because when you die, the person who shares the joint tenancy with you will automatically receive your share of the property (even if your will says otherwise). The same is true for a trust, or for life insurance that has a named beneficiary – these are legal items and your will does not take precedence over them if you name someone different.
It is also a good idea not to put funeral instructions in your will. (Information on pre-paid funeral plans). Although this might seem like the perfect place to write them down, often wills are not read until after the funeral, which is the first item to organise once a person has died. Because of this, important last wishes could be missed. Therefore, it is better to discuss with your family and friends exactly what you want at your funeral, and perhaps to leave a note with your executor so that your final goodbye will be exactly as you hoped.
Although it is possible to put conditions on bequests, if they are illegal, or if they mean that the beneficiary must marry a particular person (or divorce their current spouse), or change their religion will not be enforced. And you must bear in mind that, although you might have put these provisions on a gift (ie that the money must be used for a specific use), no one is able to ensure that this actually happens.
Arranging special care for someone when making a will is not ideal. The best way to do this is through a trust, which means that the required money will be specifically set aside.
Finally, you cannot leave gifts to a pet in your will, as they are not legally able to own anything. Instead, you can ensure that you leave the care of the pet (and possibly some money with which to do it) to a specific person. A trust fund including a discretionary trust could also be used for this purpose.
If you are interested in making a will then please call us on 0800 612 6105 or 020 8150 2010
Two siblings were relieved recently, when a Court of Appeal judge ruled that their mother’s will, which was drafted by an experienced solicitor, was declared to be an invalid will.
Daphne Burgess died in 2009, leaving a will which stated that her estate was to be distributed between her two daughters, but would not include her only son, Peter, who would inherit nothing.
Her son, along with one of her daughters, Libby, contested the will as they had not been a party to the drafting of the document nor had been informed about it. In addition, although the other daughter Julia and her brother had fallen out, there had been no disagreement between mother and son. Of course, this made the wishes expressed in the will, particularly suspect.
The solicitor concerned was considered to be very experienced in this sector – indicating that he prepared one will each week on average. However, the trial judge found that Daphne had not in fact been mentally capable of making the decisions contained within the document, declaring it invalid.
Thin Lizzy guitarist Gary Moore unfortunately left no will and no instructions on how to distribute his £2 million estate, it has been revealed and thus the intestacy rules apply.
Having failed to prepare a will, this now means that his girlfriend Petra Nioduschewski, to whom he is reported to have proposed shortly before his death, will receive absolutely nothing according to intestacy rules.
Instead, under English probate law the proceeds of Mr Moore’s entire estate is likely be divided equally between his four children.
The musician died two years ago in Spain, following a binge drinking session. Sadly, it seems that the rock star lifestyle became a reality for this talented guitarist who perhaps forgot or chose not to take care of his practical responsibilities as a partner and father until it was too late. This we are afraid is all too common amongst UK citizens. If you do not make a will your estate passes under the laws of intestacy and it may just be that the dying intestate affects the people you leave behind more than you realise.
If you need to find out about Making your will please visit our main site. Our online will form lets you input the details for your will very easily. We will then create your will for just £25.00 including VAT,
Reports recently have suggested that many UK adults are not preparing or planning financially for their retirement, but are basing their income in later years on monies received via an inheritance or an unclaimed estate.
Among the wealthy however, it seems the opposite is true and that money is very much being self-made, rather than inherited.
A survey carried out by Barclays Bank among some of the UK’s highest net worth individuals revealed that around 45% earned their money through entrepreneurship, whilst only around 14% said that they had inherited their money from relatives or other family members.
The bank puts these statistics down to an “explosion” of entrepreneurship, triggered by technology, globalisation and emerging markets.
Savvy small business owners and entrepreneurs have their finger on the pulse and have been able to ride the wave of the economic downturn, therefore continuing to amass their wealth.
Whereas perhaps in the past, many of these individuals would have relied heavily upon a substantial inheritance from their parents, they now claim that it is easier to create wealth in today’s modern markets, despite the recession.
Regardless of how wealthy an individual is it still also seems likely that the majority of people in the UK still have not made a will. Statistics still say that 70% of the population do not have a will This is staggeringly high considering the complications involved in intestacy and the intestacy rules. More so considering that todays family dynamic is for second marriages and or living with long term partners.
Although it is always advised to leave sufficient funds to ensure the financial well being of those you leave behind – at least for the short term, even we were staggered when we read about property widow, Rosana Berger's probate dispute.
The late Clive Zola Berger, a property tycoon, died in 2005, leaving behind an estate worth around £7 million. Rosana, his second wife, at that time aged 77, was to be allowed to remain in the £4.25 million family home for the rest of her life. In addition, a large portion of the estate, valued at almost £3 million, was to be put into a trust, providing her with an income for life.
Most of us would dream of being left such an inheritance. However, Mrs Berger has since been disgruntled, claiming that the resulting £50,000 per year income is not sufficient to fund her lifestyle, with staff for the eight bedroom home costing £33,000 per year.
When asked how much she would need to live comfortably, Mrs Berger stated a figure of £222,540 per year – a figure which, perhaps understandably, Mr Berger’s sons from his first marriage – are questioning.
Mrs Berger has been told by a High Court judge that she has left it too late to make a claim.
I watched an interesting item the other day, featured on the Daybreak programme, which discussed how many people felt the charges for organising a funeral were excessive and how some companies in the industry were taking advantage of these people at a vulnerable time.
The feature went on to talk about how although on average, funerals tend to cost around anywhere up to £7000, there are ways to reduce this cost considerably, if you’re prepared to plan most of it yourself.
It may surprise you to know that hiring a funeral director to arrange everything is not a requirement, although at such a difficult time, most of us choose to hand over the funeral planning details to someone with experience.
We all have differing views on burial and cremation which may not even necessarily depend on our religion. It’s worth having the conversation now with your spouse, siblings and parents, to see whether they have any strong views, one way or the other. What should be bourne in mind is that a burial can cost substantially more than a cremation.
Whilst you’re having that conversation, why not also find out if they have any preferences with regards to a coffin? If they want to be cremated when the time comes, then buying an expensive coffin may not be a sensible choice if the budget is tight. Costs can vary widely, depending on choice of wood and accessories. If your loved one cares about the environment, they may even opt for a bio-degradable coffin, rather than an expensive wooden one.
Items such as flowers and stationery can also be bought quite reasonably, if you take the time to shop around.
Although it’s traditional to hold a reception of some kind after the funeral, so that friends and family can socialise, share their memories and pay their respects; remember that this doesn’t have to be held in a pub or other venue. Why not hold it in the deceased’s home or your home instead and ask close relatives to help out with the catering? In many cases, they’ll be glad that they can play an active part and it will give them something else on which to focus.
Finally, the last thing you want is to cause your family financial hardship and additional stress, to add to their grief when you’re gone. Why not do one last thing for them and plan in advance by paying small amounts into a funeral plan, so they don’t have to worry so much about budgeting for your funeral? For help with funeral planning please call us
An interesting case was reported last week, whereby a Leicester-based firm of solicitors was being sued for over £1 million by a woman who claims that it did not rewrite a will when it was requested, resulting in a substantial personal loss to her.
The deceased was a wealthy woman who wrote several wills throughout her lifetime, each time leaving the bulk of her £2.6 million estate to her cousin and former GP.
After her husband died and she moved into a nursing home however, her step- granddaughter claims that she wished to change her will a final time (several weeks before she died) to leave the majority of the estate to her.
According to her step-granddaughter, the law firm did not adhere to the deceased’s wishes and she was forced to prepare a will online for her grandmother, leaving it open to a contest of probate by the cousin and GP, which she lost and was forced to pay almost £1 million.
In response, the law firm stated that the solicitor concerned had received conflicting information about the mental capacity of the deceased’s mental health at the time and quite rightly, had insisted about speaking to her about it personally before agreeing to write a new will. Unfortunately, she died before she was able to do so.
The hearing continues in the High Court.
Where a person doesn’t make a will, it can often cause tension and squabbles among beneficiaries after their death.
This is particularly so where the deceased leaves behind a considerable amount of money, either in cash or tied up in trusts or property.
Such was the case when a wealthy widow died, leaving not just a property but an entire estate. She had two sons, one of whom still lived on the estate, independently.
Although the rules of intestacy state that both brothers should have been entitled to administer and benefit from the estate mutually and equally, what in fact happened was that without any discussion, one brother applied for the grant of letters of administration, without mentioning the other.
To be sensible and fair, the two brothers, once equally responsible for administering the estate, would then have had the additional discussion of how they wanted to divide the assets between them.
Instead, the second brother was both confused and anxious about whether or not he would be involved in the process at all and how to go about asking for a share of the estate, without upsetting the other brother.
The second brother was advised that if his sibling continued to refuse to cooperate, then legal action should be taken and ultimately, his brother could be removed as personal representative.
All of this was of course completely unnecessary and was a split which wouldn’t have happened, if their mother had quite simply made a will, detailing who should receive what as opposed to dying intestate in the UK
Most people are familiar with the idea that they should write a will at some point so that they can pass on any property or assets to family or loved ones. Even though most people know that they probably should write a will, many people pass away without having composed one. There are a variety of reasons for this: some people don’t believe it is necessary because they don’t feel that they own much, others may unfortunately die before it occurs to them to write one, and yet others believe that a verbal communication to a family member may suffice. In any case, when an individual dies with no written will, he or she is said to have died intestate.
In a typical situation, a will names someone as the executor of an estate. In fact, other than to dispense wealth or assets, this is the main purpose of a will. The executor is the person who carries out the instructions of the will and is accountable for property, taxes, and other legal matters. The executor may also yield these responsibilities to a solicitor. In case of intestacy, there is no executor and legal obligations automatically go to certain parties based on the surviving family members. The following is a set of guidelines for how to ascertain the next of kin in case of intestacy.
The most common circumstances surround intestacy are when the deceased dies leaving a spouse or civil partner and children. In this case, and if the net worth of the estate is £250,000 or less, the entire amount passes to the spouse or civil partner, assuming her or she survives the deceased party by at least 28 days. If the estate is worth over £250,000, the first £250,000, in addition to any personal possessions, passes to the spouse or partner. Half of the rest is distributed equally to any children.
Another scenario is when the deceased dies leaving a spouse or civil partner (from here on, simply ‘spouse’ will refer to either), and either parents or siblings. If the net estate is £450,000 or less, the spouse inherits all of it, assuming he or she survives the deceased by at least 28 days. If the estate’s net worth is greater than £450,000, the spouse receives £450,000 and half of the rest of the estate. The other half is distributed equally to the parents, but if there are no surviving parents, it is then equally distributed among the deceased’s whole-blood siblings. However, if the spouse survives the deceased, and there are no parents and no whole-blood siblings, the spouse receives the entire estate– again provided that he or she survives the spouse by a minimum of 28 days.
These rules only apply to spouses to whom the individual was married to or in a civil partnership with at the time of death. A spouse from whom the deceased had already divorced is not considered for next of kin in the case of intestacy. However, partners whose separation was only informal may still stand to inherit under the rules of intestacy.
When the deceased leaves children, but no spouse, the entire estate is divided equally amongst children, which they receive once they are 18 years old or older. Thus, adult children receive inheritance immediately upon the execution of the will, while minors must wait until they reach majority status. It should be noted that it is possible to prevent children from accessing the entirety of an inheritance by establishing a trust (because many parents doubt the financial acumen of newly-adult children). However, that is a matter for another article.
In the case of the deceased leaving neither spouse nor children, the net estate passes to the deceased’s parents in equal shares. If there are no parents that survive the deceased, the estate is split equally between any whole-blood siblings. When there are no living siblings, the next people in the queue are grandparents, who receive equal shares of the estate if there are no spouse, children, parents, or siblings. If the deceased is sans surviving grandparents, whole-blood uncles and aunts are next; they receive equal shares. In the absence of whole-blood aunts or uncles, half-blood uncles or aunts receive equal shares.
To complicate this already complex matter, if any of the aforementioned parties is deceased, but has children, the children receive equal shares of what would have been the share of the original party. For example, if a person dies leaving no spouse, children, parents, grandparents, aunts or uncles, but has two surviving cousins, each cousin would receive half of the estate. This principal operates as a cascade through the generations; perhaps those cousins from the example are no longer alive, but their children are. In this case, the cousin’s children would receive equal shares of the estate.
If it has been determined that the deceased has not been survived by any spouse, parent, child, sibling, grandparent, aunt or uncle, or any of their offspring, if someone has died intestate, the entire estate is then passes to the Crown. So, if you happen to be a single person with no living relatives and you do not want your estate going straight to the government when you die, be sure to leave a will! Once again, verbal instructions to family, friends, or loved ones are not sufficient; a written will is required to establish who receives what and how much of it they receive.
If you find that you are still confused about intestacy (and it is quite a detailed subject), please refer to this concise and informative resource.
Once the next of kin has been identified through the rules outlined above, that person applies for a grant of representation, which grants the person the legal right to manage the property and estate of the deceased. However, this person does not need to apply him or herself directly, which is why IWC Probate Services is happy to manage the task. This person is responsible for paying any inheritance tax (only necessary if the estate is worth £250,000, and then a 40% tax on anything above the so-called ‘nil-rate band’) and taking care of any debts that the deceased may have left.
While these rules are in place for the many people who do not leave a will, it is highly recommended to write a will and name beneficiaries so that your wealth and assets are dispensed with in a way that you find satisfactory. Intestacy can often be a headache for those involved. If you aren’t sure about how to compose a will, check out these resources for some guidance
Angie Picardo is a staff writer for NerdWallet. Her mission is to help consumers stay financially savvy and save money with NerdWallet’s best credit cards.