Solicitors in Birmingham

WILLS & PROBATE FAQS FROM SOLICITOR IN BIRMINGHAM

Can an executor be a beneficiary of my will?

Yes, and you can have up to four executors. Remember, though, that whoever witnesses your will can’t be a beneficiary of it.

What happens if I die without making a will?

If you die without making a will, or if your will is invalid, you die intestate. The management of your estate, which is your house (if you have one) and any other assets minus all your debts, is then done by administrators (called ‘executors-dative’ in Scotland) appointed by the court, who will probably be your close relatives.

In some cases, your possessions may go to the Crown, but generally the bulk will go to your spouse or if you don’t have one, your children. If you have no children, other blood relatives are next in line. One in two people in the UK currently dies without making a will and if you haven’t done so already, it’s a really good idea to prepare one.

Who can dispute a Will ?

Very few Wills are ever disputed but a spouse, former spouse, child, grandchild, parent and “common law husband/wife” may all be able to make a claim if they believe that they are entitled to more, or that they were omitted without reason, or that your wishes have been misinterpreted or misunderstood.

To get a Will invalidated for any other reason someone would have to go to Court to prove:

a) that you were of unsound mind or

b) you were unduly influenced by someone else or

c) your signature was forged or

d) the Will has been altered or tampered with in some way

Will the proceeds of a pension or life assurance policy form part of my estate?

Assets written in trust and most pension benefits including a death in service benefit will not usually form part of your estate and will be dealt with under a separate trust. This may be beneficial for inheritance tax purposes and also means the monies may be released before probate is issued. You are usually able to name your chosen beneficiaries by requesting a beneficiary nomination form from the policy provider.

How often should I review my Will?

You should review at least every three to five years, or sooner if your personal circumstances change. This may include any of the below:

• changes to family members – If there has been an addition to, or a death in your family, you may need to update your Will.
• separation – The effect is not the same as divorce, but you may still wish to revise your Will to reflect your change in circumstances.
• financial changes – It is important to keep an eye on the value of your estate to stay one step ahead of any inheritance tax liability and to also ensure that your estate is sufficient to provide for any legacies you may have left.
• property abroad – If you are lucky enough to own property abroad, it is essential that you make a Will in that country to ease the administration of your estate. Different countries have different laws and any existing Will you have may only take into account your UK assets.

I run my own business. When I die what will happen to it?

Your business is an asset of your Estate and  the Executors will have to employ somebody to continue the business until it can be sold. When it is sold the proceeds are paid to your beneficiaries under the Will.

What can I give away in my lifetime without worrying about inheritance tax ?

Generally you can give away the following without worrying about inheritance tax :-

• £250 per year to any one person
• Some gifts on the marriage of a child (£5,000), grandchild (£2,500), bride/groom (£2,500) or anyone else (£1,000)
• Any amount out of your disposable income, provided you make regular annual gifts and after giving your usual standard of living is not affected
• £3,000 in any one tax year
• Anything to your spouse or civil partner
• Anything to charity or political parties

Can I make provision for my pets in my will ?

Yes, and if you have made arrangements for them you should do so, otherwise the executors may decide on some other course, in ignorance of your intentions.

If you wish to provide for your pets, and can spare the capital, you could set up a simple trust, with the income going to support them during their lifetime, and the capital going to another beneficiary – for instance, an animal charity – after their death. However, the trust’s income and capital gains would be subject to tax, and you might have difficulty finding anyone prepared to act as a trustee.

Alternatively you could leave your pet(s) with a cash sum to a named legatee (someone you can trust to give them a good home). Or you could leave them with a cash sum to an appropriate animal charity, such as the Cinnamon Trust or the RSPCA, which runs a re-homing programme. If you opt for this solution, be sure to put an appropriate clause in your will – the RSPCA, for example, provides one on its website.

Who will see my Will?

Your Will is a private document whilst you are alive and will not become a public document until after you die and probate is granted. Anyone can then obtain a copy from the Probate Registry for a small fee.

What is a living will?

A Living Will or Advance Decision is a document, which records individual’s wishes about what should happen to them if they become too ill to make their own healthcare decisions. No one can request that their life be ended, but they can by means of a living will set out the circumstances under which they would not want to receive life-sustaining medical treatment or have treatment that would reduce their suffering but might bring an inevitable death sooner. They would nominate a person to administer this living will on their behalf.

What does an Executor need to do ?

An Executor’s job can be very time consuming and involve the following:

• Registering the death
• Arranging the deceased’s funeral
• Gathering details of the deceased’s investments, money, property and possessions
• Collecting in the assets and selling any property
• Paying any debts or liabilities owed by the estate, including inheritance tax
• Transferring the assets to the beneficiaries of the estate

What happens if beneficiaries cannot be traced ?

Families often assume that they will inherit the share of a missing beneficiary because they cannot be found, this is not the case. If a beneficiary cannot be found, executors should consider :-

• Insuring against the possibility of a missing beneficiary coming forward
• Apply to court for a Benjamin Order, which authorises Executors to distribute the estate as the court directs
• Pay the missing beneficiaries share to those known, but in return the beneficiaries promise to repay the inheritance if the missing beneficiaries come forward
• Pay the missing beneficiaries’ inheritance into court