Wills & Trusts FAQs | Curtis Parkinson

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Wills & Trusts FAQs

Your Will

What happens if I die without a Will?

A Will sets out how you would like to dispose of your assets (property, money and possessions) after you die. It’s important to make a Will because if you die without a Will the rules of intestacy will kick in. This means that the law will dictate who your estate is passed on to.

In general terms, if you leave a surviving spouse or children, they are considered “next of kin” and generally inherit the entire estate. However, if you have been married before, many people don’t realise that remarriage cancels any existing Will that’s in place. The more complicated the family set-up, the greater the need to make a Will and speak to the family about it.

Further reading:
Have You Made A Will Yet?
Divorce Remarriage and Inheritance Issues
A New Year – Time to Make A New Will
Family Squabbles Over Wills
gov.uk – Who Inherits If Someone Dies Without A Will?

Do I need to use a solicitor to prepare my Will?

By law, you don’t need to use a solicitor to prepare your Will. If you prefer to make a Will yourself, you can do so. As an alternative to ‘doing-it-yourself’, you can use a professional Will writer or use the free will-writing service several national charities offer.

It might not surprise you to learn that we would not recommend making a Will yourself; mistakes can create serious issues and, if you choose to go to a solicitor for advice, a basic Will may cost more than the initial ticket price of an average DIY job.

Further reading:
Why DIY Wills Can Cost A Fortune
gov.uk – Making A Will

What information does a lawyer need to see when drawing up a Will?

Ideally, you need to bring paperwork relating to your assets with you. This can include:

– a copy of the deed to your house and/or other property;
– ownership details for vehicles and similar assets;
– bank statements;
– papers related to your retirement or other investments

It’s also a good idea to make a list of those people you would like to include in your Will (including their personal details) and what you are thinking of leaving to them. Also, think about whether you’d like to leave anything to charity (this is not just limited to cash) and what your preferences are in terms of funeral and service.

Further reading:
The Benefits of Leaving Money to Charity

Can anyone witness my Will?

In England and Wales, a Will is not valid unless it is signed by yourself, in front of two witnesses. It’s important to choose adult, competent (mentally capable) independent people to witnesses. You shouldn’t choose family, your partner or spouse or anyone who you have identified as people you intend to leave something to in your Will (or their spouses).

Friends, neighbours or professionals such as your doctor, lawyer, accountant or bank manager would be classed as eligible witnesses. It’s ok if your witnesses are related to each other (such as husband and wife next door).

Further reading:
gov.uk – Make Sure Your Will Is Legal

What do the words testator and testatrix mean?

Both terms mean the person who has made the Will. Specifically, testator means a ‘man who made a Will’ and testatrix is a ‘woman who made a Will’. In recent years ‘testatrix’ is rarely used and ‘testator’ is applied universally.

What does beneficiary mean?

A beneficiary is a person specifically named to receive something in a Will. This might be a sum of money, land, property or an item (e.g. a piece of art or item of jewellery). It’s not unusual for someone to get a share in “the residue” of an estate. This is whatever is left over after all the gifts have been given out.

What is an Executor and what do they do?

When a person dies, the assets left behind is known as their ‘estate’. Their Will includes the names of their executor(s). As a legal representative, their main responsibility is to follow through on the wishes of the deceased and to make sure their estate (savings, property, property etc) is dealt with legally.

Further reading:
My Father Left a Will – Do I Need to Apply For Probate?
Beware – The DWP Can Recover Benefit Overpayments From An Estate
gov.uk – Applying For Probate If You Are An Executor

Do I need to appoint more than one Executor?

You can choose one or up to four people to become Executors. Whatever you decide, as part of the legal process, your Executors must obtain a Grant of Probate. Your Executors must all agree on your chosen wishes and act jointly in the signing of any documents.

An Executor can drop out of the formal Grant of Probate application, but this request must be officially submitted to their local registry.

Further reading:
gov.uk – Applying For Probate
gov.uk – Applying For Probate If You Are An Executor

Can anyone be an Executor?

Anyone aged 18 or above can be an Executor. Executors can also be named as beneficiaries in your Will.

What happens if I have made a Will but then want to change it?

Assuming you and your witnesses have signed your Will and depending on what you want to change, you have two options:

– Make a codicil to your existing Will; or
– Make a new Will.

NB: Both require your signature and the signatures of two witnesses.

Further reading:
gov.uk – Updating Your Will

What happens if my circumstances change?

If your circumstances change, for example, you re-marry; your existing Will is no longer valid. If you don’t follow-up by making a new Will, then when you die the law of intestacy will dictate how your assets are divided. Usually, your entire estate would go to your wife, husband or civil partner.

Making a new Will after divorce will make sure your estate is divided up the way you want. It’ll also make provision for your new partner and any/all children, exactly how you want to.

Further reading:
Have You Made A Will Yet?
Are You Protecting Your Children’s Inheritance?
Divorce, Remarriage and Inheritance Issues
‘Blended’ Families – Who Takes Priority When It Comes to Inheritance?
gov.uk – Updating your Will
gov.uk – Effect of Marriage

How do I leave a gift to Charity in my Will?

There are benefits to leaving something to charity in your Will. Basically, there are three ways of leaving a gift to charity:

1. A Specific Legacy: a gift of a specific item;
2. A Pecuniary Legacy: a gift of a specified amount of money;
3. A Residuary Legacy: a share in the rest of your assets you have not already given to your family and friends

Further reading:
The Benefits of Leaving Money to Charity

When I die could there be taxes on my estate?

When someone dies, the value of their estate (land, property, money and possessions) is calculated. There isn’t usually any Inheritance Tax due if:

1. the value of the estate falls below the £325,000 threshold;
2. you leave everything above the £325,000 threshold to your spouse, civil partner, a charity or a community amateur sports club.

NB: Even if the total value of the estate falls below the threshold, the HMRC will need to know.

Further reading:
Inheritance Tax and The Residential Nil Rate Band (RNRB)
Are You Facing an Inheritance Tax Bill You Didn’t Plan For?
gov.uk – Inheritance Tax



Challenging a Will

Is it hard to contest a Will?

It’s not possible to challenge or contest a Will simply because you don’t like what’s in it. English law reinforces an individual’s right to draw up their Will as they would like. Even if the terms of the Will seem a little odd, if the Will has been prepared in accordance with the person’s wishes, then it’s unlikely that there’ll be easy grounds for a challenge.

However, there are circumstances where you can legitimately contest a Will. These include:

1. If the Will hasn’t been executed properly (not signed/witnessed/dated and so on);
2. If the person whose Will it is, didn’t have testamentary capacity when it was drawn up;
3. Undue influence;
4. Fraudulent wills and forged wills;
5. Lack of knowledge and approval;
6. Rectification and construction claims;
7. Insufficient provision under the Inheritance (Provision for Family and Dependants) Act 1975
8. Estoppel, which relates to promises made with reliance to a beneficiary which the Will doesn’t honour (to the beneficiary’s detriment)

Further reading:
What Happens if I Want To Dispute a Will?
Is Your Will Watertight?
Squabbling Over Wills…

What is testamentary capacity?

Testamentary capacity is the legal term used to describe a person’s legal and mental ability to make or alter a valid Will. The test for capacity is based in case law but fundamentally aims to establish if the testator – or person making the Will:

1. Understands the nature of making a Will and its effects;
2. Understands what constitutes their assets;
3. Is able understand what they are proposing to do with their assets and what effect (detrimental or otherwise) their bequests may have;
4. Must not be suffering from an illness or disease which prevents them from making rational decisions.

Further reading:
What Are Deathbed Gifts And When Are They Legal?
thegazette.co.uk – What is Testamentary Capacity?

What if I haven’t been provided for in the Will?

In the UK, there is no legal requirement to leave your estate to your dependants. This means that if you feel you have been unreasonably excluded from a will, you must go to court in order to prove your claim.

The principal legislation that governs this is Inheritance (Provision for Family Independence) Act 1975. This has recently been modified to factor in the change in family structures.

Further reading:
Daughter Beats Stepsister in £300k Inheritance Dispute
What Happens If I Want to Dispute a Will?
‘Blended’ Families – Who Takes Priority When It Comes to Inheritance?

What should I do if I want to contest a Will?

Timing is important. If you want to challenge a Will, you should do so as soon as possible. Preferably before probate is granted. This isn’t something we’d advise to do yourself. The process is complex, so take specialist legal advice. The next step is to file ‘caveat’ at the Probate Registry to stop probate process. A caveat will last 6 months.

Further reading:
What Happens If I Want to Dispute a Will?
Can I Bring an Inheritance Act Claim Out of Time?
probateforms.info – The Probate Registries
gov.uk – Applying For Probate
gov.uk – Stopping a Probate Application



Trusts

What can I put in a Trust?

A trust is created when an individual (called the settler) gives property/assets to another person (known as the trustee) to hold for the benefit of a third person (the beneficiary). A trust deed (or document) is the set of rules drawn up to operate the trust.

Further reading:
gov.uk – Trusts and Taxes
gov.uk – Trusts – Contacts

Why would I include a Trust in my Will?

The key benefit of including a trust within your Will is that it offers added asset protection for those you leave behind.

Further reading:
Trusts and Protecting Your Assets
Life Interest Trust: How to Keep Your Property in The Right Hands After Death



Read Our Reviews

Meet Our Lawyers

Would You Like to Make an Appointment?

Please get in touch to arrange an appointment, or simply ask a question about our Wills, Trusts, Probate and Power of Attorney services.

Maggie Eley – Wills 1

Had my will revised today. Mr Curtis was polite, efficient and explained things well. Would recommend them for this service.

Maggie Eley

Curtis Parkinson
5
2019-09-04T11:08:38+01:00

Maggie Eley

Had my will revised today. Mr Curtis was polite, efficient and explained things well. Would recommend them for this service.

Shirley Bennett – Wills 2

Curtis Parkinson were recommended to us and were exactly as described: kind, patient and helpful. They explained everything, but kept it simple.

Shirley Bennett

Curtis Parkinson
5
2019-09-04T11:10:14+01:00

Shirley Bennett

Curtis Parkinson were recommended to us and were exactly as described: kind, patient and helpful. They explained everything, but kept it simple.

W. H. Watmore -Wills 3

Curtis Parkinson were very knowledgeable but easy going and helped us with setting out our will. I would definitely recommend them.

W. H. Watmore

Curtis Parkinson
5
2019-09-04T11:11:42+01:00

W. H. Watmore

Curtis Parkinson were very knowledgeable but easy going and helped us with setting out our will. I would definitely recommend them.

Joanne Goldstein – Wills 4

All of my meetings were both friendly and professional. They made the process of dealing with my parents' wills and probate a non-complicated process.

Joanne Goldstein

Curtis Parkinson
4
2019-09-04T11:14:10+01:00

Joanne Goldstein

All of my meetings were both friendly and professional. They made the process of dealing with my parents' wills and probate a non-complicated process.

T. King – Wills 5

I'd recommend Curtis Parkinson for their kind and considerate staff. They helped me with my Will and LPA - everything was done on time.

T. King

Curtis Parkinson
5
2019-09-04T11:15:05+01:00

T. King

I'd recommend Curtis Parkinson for their kind and considerate staff. They helped me with my Will and LPA - everything was done on time.

John Harrison – Wills 6

Curtis Parkinson were prompt, efficient and great value for money. They were informal, yet professional and gave good advice.

John Harrison

Curtis Parkinson
5
2019-09-04T11:25:04+01:00

John Harrison

Curtis Parkinson were prompt, efficient and great value for money. They were informal, yet professional and gave good advice.

Michael Eaton – Wills 7

Curtis Parkinson were very efficient - they replaced my old will with a new one in the space of only a week. I would recommend them.

Michael Eaton

Curtis Parkinson
5
2019-09-04T11:25:42+01:00

Michael Eaton

Curtis Parkinson were very efficient - they replaced my old will with a new one in the space of only a week. I would recommend them.

Geoff & Sheila Watnall – Wills 8

Curtis Parkinson dealt with matters without deviating from matters in hand. Quick response, very efficient and likeable manner.

Geoff & Sheila Watnall

Curtis Parkinson
5
2019-09-04T11:26:34+01:00

Geoff & Sheila Watnall

Curtis Parkinson dealt with matters without deviating from matters in hand. Quick response, very efficient and likeable manner.

Rita Welbourne – Wills 9

I've never had a will before so I didn't know why one was needed, but Curtis Parkinson explained it to me. I'd highly recommend them.

Rita Welbourne

Curtis Parkinson
5
2019-09-04T11:27:23+01:00

Rita Welbourne

I've never had a will before so I didn't know why one was needed, but Curtis Parkinson explained it to me. I'd highly recommend them.

Debbie Spencer – Wills 10

Curtis Parkinson helped me to understand will writing. They were friendly and took the time to really go over detail.

Debbie Spencer

Curtis Parkinson
4
2019-09-04T11:28:10+01:00

Debbie Spencer

Curtis Parkinson helped me to understand will writing. They were friendly and took the time to really go over detail.
4.8
10
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