FAQs

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

Generally speaking, nothing. She may be able to make a claim against your estate if you have been living together for more than two years before your death, or if she was being financially maintained by you, or if she could successfully argue that she had contributed towards the property (such as paying for an extension) and had therefore acquired an interest. Such a claim will be expensive, stressful and may potentially divide your family. Whether or not you wish your partner to inherit we strongly advise you to make a Will so you can control what should happen.

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 without making a Will then all of his estate, including everything he inherited from your mother, will all go to his son. He must make a Will to ensure that you inherit.

This is a common problem. Speak to us to discuss the different options to ensure that you can leave your estate to your partner, but in such a way that your children will ultimately inherit your assets.

What is an executor?

An executor is the person you appoint in your Will to deal with your affairs after your death. Their job is to establish the value of your estate, apply for Probate of your Will, pay your debts and any tax due and then distribute the estate as set out in your Will. You may also find our Guide to Executors helpful.

My aunt died earlier this year leaving me £10,000. Will I have to pay tax on my legacy?

Generally speaking, you will not have to pay inheritance tax on the legacy. However, in some cases legacies are specifically made subject to inheritance tax. Also sometimes the residue of the estate is not large enough to pay the inheritance tax due, and the tax may become payable from your legacy. Also, if you are in receipt of means tested benefits you may need to declare your inheritance to the DWP.

Speak to us if you need advice on the interpretation of a Will, or advice on tax.

My husband has died without making a Will – what will I receive?

Generally speaking any assets in the joint names of your husband and yourself will automatically pass to you even where your husband has made a Will.

As far as his own assets are concerned, if you have children you will usually receive:-

• his personal chattels (in general terms, furniture and personal effects)
• £250,000
• a right to income from half the remainder of the estate

Where there are no children, instead of receiving £250,000 you will normally receive £450,000.

My father has Alzheimer’s 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. Determining whether someone has the relevant mental capacity can be very tricky, and so you really need to see a specialist solicitor with experience and training, and they may recommend a doctor's report being obtained. Some people with mental illnesses or disorders have lucid periods and can make a Will 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 he can still make a valid Will by an application being made to the Office of the Public Guardian for a statutory Will.

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 give 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 Local Authority may still treat you as owning the home, and you may therefore still have to pay nursing home fees, if the Local Authority argue that you made a “deliberate deprivation” of your assets. When somebody makes an application for assistance with nursing home fees they are questioned in some detail about their finances. If the Local Authority finds that you have given away your house in order to obtain eligibility for state benefits, then these benefits will not be made available to you. There is no 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). Receiving care at home is becoming increasingly popular.
• If you do eventually need residential or nursing home care, but no longer have the resources to pay the fees yourself because you have given your house away, 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 to your children then they might not keep "their side of the bargain" whether deliberately or through no fault of their own. For example, they may:-

(a) refuse or be unable to support you by topping up your residential care fees;

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

(c) die without making suitable provision for you in their Will;

(d) run into financial difficulties because of unemployment or divorce or become bankrupt, and thereby losing the house or being unable to support you.

We have encountered all of these problems in families, although people always think it will never happen to them.

• If you do give away your house to your children, they may also face a capital gains tax liability on the eventual sale of the property.

A much more effective way of dealing with the potential issues is to transfer the property to a Trust rather than outright to your children. This is a detailed matter upon which expert advice is required.

My husband died in 1987 leaving everything to me. Can my children use his “nil rate band” when dealing with my estate?

Yes. When someone dies after 9 October 2007, and they have previously inherited assets from their spouse, then you can transfer the unused “nil rate band” of the first to die. Currently this enables a surviving spouse to potentially have a nil rate band of £650,000.

You will need to produce certain papers to the Revenue to claim the unused nil rate band, and we recommend that you ensure that if you have following documents that they are kept somewhere safe:-

• Your husband’s Will;
• Your husband’s Grant of Probate (if one was required);
• Your husband’s death certificate;
• Copy Deed of Variation;
• Your marriage certificate

What is a Solicitor for the Elderly?

Solicitors for the Elderly (SFE) is an independent, national organisation of lawyers, such as solicitors, barristers, and legal executives who provide specialist legal advice for older and vulnerable people, their families and carers.