Making your Wills FAQs

My partner and I live together. What is she entitled to if I die without making a Will?

 
Absolutely nothing unless you have lived together for more than two years and she makes a successful claim against your estate under the Inheritance Act . This will be expensive, stressful and will divide your family. Make a Will.
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My mother remarried after my father's death and subsequently died leaving everything to my step-father. He has not made a Will as he says everything will be split between his son from his first marriage and myself any way. Is he right?

 
No, he is wrong. If he dies intestate then his estate and what he inherited from your mother will all go to his son. He must make a Will to ensure that his wishes are dealt with.
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What is an executor? Can I appoint my children to be my executors, and still leave them a gift in my Will?

 
An executor is the person you appoint in your Will to deal with your affairs after your death. Their job is to ascertain the value of your estate, apply for Probate of your Will if the value of your estate warrants it, pay your debts and any tax due from the assets of your estate and give effect to the wishes set out in your Will. There is no reason why you shouldn't appoint your children to be both your executors and your beneficiaries provided they are over eighteen and are able to act (ie they live in this country and are sufficiently clued-up to deal with your financial affairs and what can be a lot of correspondence).
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My aunt died earlier this year leaving me £10,000. Will I have to pay tax on my legacy?

 
That depends on how the Will was worded, and whether your aunt's estate was sufficiently high (over £300,000 - including any lifetime gifts made within a certain period before her death and any interest she may have had in any trusts) to require inheritance tax to be paid. If her estate was worth over £300,000 then a charge to inheritance tax would arise. Generally gifts of this nature are free of inheritance tax ie the executors pay the tax from the residue of the estate and then pay the legacies from what's left over. If your gift was a share of the estate rather than a fixed amount then this will affect the amount you receive. Sometimes people making Wills state that a beneficiary of a gift is to pay any tax due on that gift. Check with the executors just what your aunt's Will said.
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My uncle has died without a Will. Who is entitled to his estate?

 
If he died without leaving a wife or children then his estate will be split between brothers and sisters of the parents whole blood (ie not half-siblings). If any of his brothers and sisters has pre-deceased him then his or her share passes to their children. The persons entitled to deal with the estate ie act as personal representatives (like executors) are the persons entitled to the biggest share of the estate.
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My father has Alzheimers Disease. Can he make a Will?

 
To make a valid Will a person must have sufficient 'mental capacity'. In brief, they must understand the nature of their act, the extent of their wealth and any moral obligations they may have. It can be a very tricky decision to make and so you really need to see a solicitor who may recommend a doctor's report being obtained. Some people with mental illnesses or disorders have lucid periods and a Will can be validly made during a lucid period, even if the person who made the Will forgets all about it later. If your father's dementia is very far progressed then the only way he can make a valid Will is by a Court of Protection Receiver being appointed and an application to the Court being made for a statutory Will to be made.
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My mother ended her days in a nursing home and by the time she had died all her money had been spent on care fees. Can I safeguard my children's inheritance by giving them my house?

 
It is possible (though generally not effective for Inheritance tax planning) to transfer your house to your children. However, this is a very big step to take and needs careful consideration. Think about the following points and then seek a solicitor's advice.
  • The value of your home might still be taken into account under the anti-avoidance measures in relation to means testing. When somebody makes an application for assistance with residential or nursing home fees they are questioned in some detail about their affairs. If the local authority finds that an applicant has disposed of assets in order to obtain eligibility for state benefits then the state benefits will not be made available. In Harrogate, for instance, the local authority currently asks whether an applicant has owned property within the last seven years. If it discovers that an applicant has owned a property within the last seven years then clearly further enquiries would be made. The fact that Harrogate Council asks about properties owned within the last seven years at present does not mean that this will always be the case. The seven-year rule is simply a rule of thumb adopted by the local authority. The legislation (the Community Care Act 1990) does not put any time limit on pursuing and considering gifts made by an applicant.

  • You should remember that you may never need residential or nursing home care (less than 6% of people aged 75 to 85 need residential care) so the risks of giving away your house might outweigh any benefits received.

  • If you do eventually need residential or nursing home care but no longer have the resources to pay the fees for yourself because of the gift then the local authority may only pay for a basic level of care (e.g. a shared room in a home of its choice), so you might be dependent on your children to top up the fees if you want a better standard of care.

  • Once you have given your house away as a gift to your children then they might fail to keep "their side of the bargain" whether deliberately or through no fault of there own. For example, they may:-

    (a) fail to support you by topping up your residential care fees.

    (b) try to move you prematurely into residential care in order to occupy the house themselves or to sell it.

    (c) die without making suitable provision for you.

    (d) run into financial difficulties because of unemployment or divorce or become bankrupt thereby losing the house or being unable to support you.
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My only son is 25 and suffers from schizophrenia. He will never be truly independent. How can I make sure he is cared for after my death?

 
Many parents of children with a disability face this question. The answer is to set up some kind of trust to ensure that the child does not inherit your estate in a large lump sum that they may not be able to cope with. A properly drawn up trust will ensure as well that the beneficiary is not disentitled to State Benefits by inheriting a lump sum of money.
 
The real experts when considering people with a disability and inheritance are the charities. The National Schizophrenia Fund (NSF) produces some excellent literature and generously gives advice on how to proceed. Some charities have schemes by which they benefit from your Will (a tax efficient move, incidentally) and they take on responsibility for you child - which some parents find preferable to appointing a sibling or other family member as a trustee.
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We have a house worth £240,000 and joint savings and investments of about £60,000. Will my wife have to pay inheritance tax when I die?

 
The first £300,000 of your estate is taxed at nil, thereafter your beneficiaries will pay 40% in inheritance tax on the surplus. Some beneficiaries however pay no inheritance tax and spouses are one of these beneficiaries. So you could leave your wife millions on your death and she would not pay tax on it. However the day of reckoning will come on the second death - ie when your wife dies and then your children or other beneficiaries will have to pay tax on the gift they receive. There are ways to avoid paying inheritance tax and you should speak with a solicitor to discuss how best to do this.
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My elderly brother-in-law wrote out a letter saying how he wanted his things to be split shortly before he died. He signed the letter, dated it and his neighbour witnessed his signature. Does this have any legal effect?

 
Under the Wills Act 1837, to be valid, a Will must be in writing, be signed, be witnessed by two witnesses and be dated. If all these requirements are met then the letter may take effect as a valid Will. It is likely, if an application for Probate is made that the Probate Registrar may want clarification of the some of the points if the 'Will' is not in a standard form and this may involve the persons who witnessed the Will giving affidavit evidence.
 
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