According to the latest research householders over the age of 50 own about 75% of the country’s homes. That’s a lot of equity tied up in property and can create a generational divide with parents and grandparents having too much space and newlyweds looking to start a family not able to afford to buy a first property without assistance or separated couples not being able to create 2 homes for themselves and their children after a divorce.
Our private client solicitors are often asked about estate planning when writing Wills and our family law solicitors are asked for innovative solutions in divorce financial settlements. In this blog, we answer some questions on sharing property wealth with the next generation.
For expert advice on family law and estate planning call our team of specialist lawyers or complete our online enquiry form.
As private client and family solicitors, we come across these types of housing issues on a regular basis:
A husband or wife is getting divorced and can’t afford, on their own, to take over the mortgage to stay in the family home
An older couple wants to make sure that their son or daughter can get on the housing ladder but is concerned about their deposit being kept safe from their child’s partner
A family is thinking of moving in together so there is a three-generation household
A person is thinking of buying a house and doesn’t know if their partner should be a joint owner or not
An older person is thinking of downsizing and either transferring their house to a child or gifting money to a child or grandchildren
No two families are the same and so one solution doesn’t fit every family. Generally, there are several property solutions, for example:
If a husband or wife can’t afford to stay in the family home after a divorce either because they can’t afford to take over the existing mortgage or to borrow more money to buy off a former partner then a parent or other family member could stand as guarantor to the mortgage
If a couple want to get their child on the property ladder, they could lend the child money with the loan secured against the house. The loan can suit the family, for example, interest may or may not be payable or interest could be accumulated and only paid if the house is sold
If three generations are moving in together the property could be jointly owned by all the adults with a deed of trust setting out the details of property ownership or the mid-generation couple could be the legal owners with the older generation having a right to occupy the house
A person buying a house could either buy jointly with their partner or on their own – if the property owner is in a relationship, they should sort out a cohabitation agreement whether or not their partner is a joint owner or lives at the property with them
If a person is thinking of giving property or money away, they can do so during their life through what is known as lifetime gifting. Gifts can be made outright or money can be put in trust for family members. Alternatively, the gift could be made outright but protected by the family member receiving the gift asking their partner or spouse to sign a cohabitation agreement or post-nuptial agreement
What property and estate-planning solution fits?
The right ‘’property solution’’ is down to a number of factors, for example:
Inheritance tax implications of making a gift or putting money into a trust
The need to protect family money from potential financial claims on the separation or divorce of a family member
Family circumstances and personal preferences
Given the range of options, it is always sensible to ask for help from specialist private client, estate planning, and family solicitors before gifting money to family members or moving in with a partner. Early bespoke assistance can make sure that you make the right decisions for yourself and your family and protect your loved ones.
For expert advice on family law and estate planning call our team of specialist lawyers or complete our online enquiry form.
When a family member passes away, with or without leaving a Will, the process of sorting out the personal and financial affairs of the deceased can seem overwhelming. This is often not helped by the need to obtain probate before the family can access funds and distribute the estate in accordance with the Will.
In this article, specialist private client lawyer, Chris Strogen, offers guidance on what probate is and how to go about applying for it.
For expert advice on Wills and probate call our team of specialist probate lawyers or complete our online enquiry form.
What is probate?
When someone dies their assets and property (known as their estate) are left in limbo until someone gets the legal right to deal with their property and possessions by applying for probate and obtaining a grant of representation or letters of administration.
How do you apply for probate?
Normally, the probate application process involves these stages:
Check and see if there is a Will – the Will may be kept with other important papers, at the bank or a solicitor’s office. If there is a Will the people authorised to sort out the deceased’s financial affairs (known as the executors) will apply for probate. If there is no Will then family members can apply for the grant
Estimate the value of the estate – this is necessary so you know if inheritance tax is likely to be payable by the estate
Pay any inheritance tax due – this needs to be sorted out before applying for probate
Complete and submit a probate application form and where necessary an inheritance tax form
What happens after probate is granted?
The executors will need to:
Pay any remaining inheritance tax that is payable
Pay any debts
Collect any property, for example, selling a share portfolio or a family home or investments
Distribute the estate, either under the terms of the Will or, if there is no Will, under the intestacy rules
Do you have to get probate?
Sometimes it is possible to sort out a deceased’s financial affairs without applying for probate. For example:
If the deceased person did not own any property or property was jointly held and passed automatically to the survivor
The deceased held a joint bank account with a husband, wife, or partner so the savings or bank account passed automatically to the joint account holder
The deceased’s bank may consider the account balance small enough to release without the formality of probate
Is getting probate straightforward?
The complexity of the probate process depends on how complex the deceased’s estate, family dynamics, and Will is. Sometimes getting probate is straightforward but there are often things to sort out or check such as:
Entitlement to bereavement allowance
Whether it is in the family’s best interests to change a Will after death (known as a deed of variation). Executing a deed of variation can result in inheritance tax savings
Resolve any inheritance claims by family or dependants who want to challenge the Will or do not think that they will receive reasonable financial provision under the intestacy rules
Obtaining a presumption of death certificate
Sorting out life insurance and pension claims – these benefits may or may not pass under the terms of the deceased’s Will
Sorting out the creation and administration of any Trusts created in the Will
Changing the appointment of Executors
How much does probate cost?
Some people have complex finances and businesses and there is therefore a lot of legal work to do to get probate. However, even if the deceased’s estate is not complex, it often pays for executors to get specialist legal help to make sure that the estate does not pay more than it needs to in inheritance tax and that the estate is distributed correctly. If you need help in applying for probate call Chris Strogen at Evolve Family Law for a quote.
For expert advice on Wills and probate call our team of specialist probate lawyers or complete our online enquiry form.
For many young couples it is a real struggle to get on the property ladder. The combination of rising house prices and stagnate salaries has made the ambition of property ownership an uphill battle for the majority of young married couples. However, many of their parents are sitting on wealth tied up in large family homes. At some distant point, there may be a large inheritance.
When you are getting divorced one of the stumbling blocks to reaching an agreed divorce financial settlement can be when either a husband or wife has received an inheritance or is likely to receive a substantial legacy in the future.
Family solicitor, Robin Charrot, looks at the topic of divorce and inheritance and offers advice on how the court sorts out divorce financial settlements involving inheritances.
For expert advice on divorce and family law call our team of specialist divorce lawyers or complete our online enquiry form.
Protecting inheritance from divorce
There are ways to protect an inheritance from divorce if you have not already received an inheritance. Examples include:
Signing a prenuptial agreement – a prenuptial agreement only works if you are engaged and have not yet got married
Signing a postnuptial agreement – the agreement can ringfence the inheritance or can be comprehensive and set out your agreed divorce financial settlement in the event of a separation. A postnuptial agreement only works if there are safeguards in place to protect both husband and wife, such as financial disclosure and the taking of independent legal advice
The creation of a discretionary trust – this is only effective if you have not yet received your inheritance and requires specialist private client and estate planning advice
Keeping an inheritance separate – if you have received an inheritance then one way of trying to keep it out of any future divorce financial settlement is to not share the money. This does not always work as it will depend on the extent of your other assets, the length of your marriage, and several other factors. Keeping the inheritance separate means retaining the money in a sole account and not putting it into a joint account or using it to pay off the mortgage on the family home or to invest in the family business. The court may decide to treat a non-shared inheritance as a non-marital asset. This means that the court will not share the inheritance as part of the divorce financial settlement unless it is necessary to do so because otherwise needs cannot be met
Family law solicitors recognise that keeping an inheritance separate may conflict with financial advice or tax advice. For example, financially it may be best to pay off the mortgage on the family home rather than keep your inheritance in an account or in investments in your sole name. Alternatively, from a tax point of view, it may be best to make use of your ISA allowance and the ISA allowance of your husband or wife. The legal and financial and tax advice is all correct but it looks at the issue from different angles. Professional help can then assist you to work out the option that best suits your needs and priorities.
Inheritance and divorce financial settlement financial disclosure
In divorce financial settlement negotiations and court proceedings, there is often an assumption that inherited money or inheritance and trust prospects do not need to be disclosed to your spouse or to the court. They normally do as you are required to provide full and frank financial disclosure.
If you do not disclose an inheritance this can result in:
Your spouse is suspicious about other financial aspects, such as the value of the family business or the extent of your income, so it makes it less likely that you can reach an agreed divorce financial settlement
In divorce financial proceedings the court is asked to make inferences about your honesty and about whether you have other assets because you did not initially disclose the existence of an inheritance or a trust
If a financial court order is made and it subsequently comes to light that you received an inheritance or were a discretionary beneficiary of a trust your spouse can ask the court to review the order and make a new one based on the argument that the court would not have made the original order if you had disclosed the existence of the inheritance or the trust
Family solicitors recommend that if you have received an inheritance or if you are named in a Will or a trust you discuss your financial disclosure with a specialist divorce financial settlement solicitor before you start financial settlement negotiations, attend family mediation, or complete Form E financial disclosure as part of the divorce financial settlement court process.
Even if the advice is that you must disclose the inheritance you can still argue that the inheritance should not be considered in the divorce financial settlement. For example, because you have not received the legacy yet and the testator may change their Will or because although the inheritance has been received the inherited money did not become marital property because of the existence of a prenuptial agreement or as a result of the money being kept separate.
Many future inheritances can be safely ignored and will be disregarded by the court. For example, if you are getting divorced in your 20s and your parents have named you as a beneficiary of their Wills but they are in their 60s and fit and healthy. Why? Firstly, you may not inherit for another 30 or 40 years, and secondly, by the date of their death, they may have spent your legacy or decided to leave it to a charity. The situation may be different if you and your spouse are in your 60s and you are divorcing after 30 years of marriage and there is an imminent inheritance and not enough equity in the family home to rehouse you both or to meet your retirement needs. The inheritance could mean your spouse gets more of the equity or pension share than would have been the case if you were not due to imminently receive a substantial inheritance or had recently received it.
Divorce and inheritance can be a very emotional topic as invariably people want to protect an inheritance because of their strong belief that the inheritance was family money left to them and that their relative would not want their estate shared with their ex-husband or wife. Divorce financial settlement solicitors and estate planning lawyers can guide you and your family on your options.
For expert advice on divorce and family law call our team of specialist divorce lawyers or complete our online enquiry form.
If you’d asked a Will solicitor back in late 2019 if there would be changes made to the 1837 Will Act most experienced Will lawyers would have said no. However, Covid-19 is bringing about changes to how Wills are witnessed with some saying that it’s taken a global pandemic to change a law made in the 1800’s. With news of local Covid-19 lockdowns being imposed in Greater Manchester and parts of Lancashire and fears that the localised government Covid-19 related constraints will be extended into Cheshire the changes are broadly welcomed by Cheshire Will solicitors.
Cheshire online Will solicitors
If you need help making a Will or changing your current Will then the Holmes Chapel based Wills and estate planning team at Evolve Family Law can help you. Call us or complete our online enquiry form and we can set up a telephone appointment, face to face appointment, video conference, or Skype call for you.
Witnessing a Will
A Will has to be witnessed in accordance with the law. If the Will isn’t witnessed properly then the Will may be contested. If the Will is found by the court to be invalid as it wasn’t witnessed properly then your estate could pass under the provisions of an earlier valid Will or pass under intestacy rules. That means that your family, loved ones or nominated charity may not end up with a share of your estate. That’s why Will solicitors say it is essential that Wills are executed and witnessed properly.
Under the 1837 Wills Act a Will has to be witnessed by:
The witnesses shouldn’t be beneficiaries of your Will
The witnesses should be present when you sign the Will and see you sign the Will.
The Will witness requirement meant it was tricky during the height of the Covid-19 pandemic for people to arrange for their Wills to be witnessed especially when Will solicitors were forced to work online because of the government imposed lockdown and the difficulty of getting neighbours to witness Wills whilst practising safe distancing or shielding.
The remote witnessing of Wills
To help people wanting to put their personal and financial affairs in order during the Covid-19 outbreak the government has said that it will change the law to allow Wills to be witnessed remotely for the next two years or longer if required.
The government recognises that there is a danger that the remote witnessing of Wills could result in fraud or abuse of the elderly or vulnerable and has therefore issued guidelines to Will solicitors and to the general public on the remote witnessing of Wills.
For those of you who have already executed your Will and are worried that the execution was carried out correctly and is valid then the best thing is to speak to a specialist Will lawyer. The good news is that the government has said that the Will witnessing reforms to allow remote witnessing of Wills is to be backdated to 31 January 2020 provided that:
The Grant of Probate hasn’t already been issued
The application is already in the process of being administered.
The new law will remain in place as long as necessary and will apply to Wills made up to two years from when the legislation comes into force (the 31 January 2022) but this period could be shortened or extended if deemed necessary by the government.
It should be noted that although the government intends to change the law to allow remote witnessing of Wills the government has said that the use of video technology should be a last resort and people making or changing their Will should continue to arrange physical witnessing of the execution of their Will where it is safe to do so.
Government guidance on making Wills using video-conferencing
The government guidance on the remote witnessing of Wills applies to both Wills and codicils (a supplementary document that is sometimes used to make minor changes to a Will rather than creating a totally new Will).
The guidance reminds Will solicitors that a Will or codicil isn’t valid unless:
The Will or codicil is in writing and
The document is signed by the testator or by some other person in the testator’s presence and at their direction and
The testator has capacity to make the Will
The testator intended by their signature to give effect to the Will and
The testator’s signature was made or acknowledged by the testator in the presence of two or more witnesses who were present at the same time and
The two witnesses attest and sign the Will
The witnesses have a clear line of sight and can see the testator sign the Will (even if their line of sight is through a window or in light of the planned law change remotely through video conferencing).
Video-witnessing or remote witnessing of Wills
If a Will is witnessed remotely then the same rules apply to the valid execution of a Will save that the witnesses witness the Will being signed remotely. This doesn’t have to be by video conferencing as it could, for example, take place over Zoom or Facetime.
The important point is that the person making the Will and their two witnesses each have a clear line of sight of the signature to the Will in real time. It is best that the remote signing and witnessing process should be recorded and the recording retained in case the Will is challenged.
The original Will should be in the possession of the testator when it is signed and the signature witnessed remotely. However, the two remote witnesses still need to sign the Will so the Will should then be taken to the two witnesses for them to sign, preferably within twenty four hours unless a longer time period is unavoidable. When the witnesses sign the Will the testator should ideally remotely see the two witnesses sign the Will and acknowledge that they have seen the two witnesses sign. As part of the remote witnessing process the Will should be held up so the Will can be seen.
The government is making the changes to the law on witnessing Wills as the government recognises the importance of writing a Will and the peace of mind that a Will can give to both the testator and their loved ones.
Our Online Cheshire Will and Estate Planning Solicitors
For help writing a Will or with estate planning call the Will and estate planning solicitors at Evolve Family Law or complete our online enquiry form. We can arrange a telephone appointment, video conference or Skype call to discuss how we can help you with writing a Will or changing your existing Will.
You can write your own Will but Cheshire private client and Will solicitors say that the better question to ask is ‘’should you write your own Will?’’ . That is because going it alone, without expert Will advice, can have serious unintended consequences for your friends and family. In this blog we look at some of the common problems encountered with do-it-yourself Wills.
Do I need a Will?
We all need a Will, whatever our personal or financial circumstances, although it is fair to say that some people need one more than others. For example:
If you have a complicated family set up with children from different relationships or step-children
You are getting married
You are in a cohabiting or non-married relationship
You are going through a separation or divorce
You own a business
Your estate will be subject to inheritance tax unless you carry out estate planning
You have financial dependants, such as young children or a former husband or wife that you continue to pay spousal maintenance to
You want to make specific bequests or the intestacy provisions (if you die without a Will) would create a result that would not be what you wanted to do with your estate
You want to leave money to charitable causes.
Having acknowledged that they need a Will some people are then tempted to write one themselves. Their philosophy appears to be ‘’how hard can it be to put down on paper what will happen to your money when you die?’’ The answer is that it can be surprisingly easy for someone to prepare a Will that either isn’t legally valid or doesn’t actually say what they meant to say.
Common problems with ‘’do-it-yourself Wills’’ include:
A Will is witnessed by one person. Two people need to witness the Will being signed. If they don’t do so then the Will isn’t valid
One or both of the witnesses to the signing of the Will didn’t actually see the Will maker sign his or her Will. If the Will is challenged then the failure to properly execute the Will could make it invalid
The Will is witnessed by two people but one of the witnesses (or their husband, wife or civil partner) is left a share of the estate or a legacy in the Will. Whilst the Will is legally valid but the gift to the beneficiary (or their spouse or civil partner) is void
The Will leaves the family home or business to a beneficiary but at the date of death the family home or business has already been sold. The beneficiary isn’t entitled under the terms of the Will to the sale proceeds of the family home or business. The beneficiary may therefore end up with nothing whilst the person writing the Will thought there were leaving their most valuable assets to a named beneficiary
After making various specific gifts to beneficiaries the Will doesn’t say what will happen to the balance of the estate, referred to as the residue. That could result in a partial intestacy with some of the estate passing to unintended beneficiaries under intestacy rules
The Will does not say who will receive a gift or the residue estate if the named beneficiary dies before the person writing the Will. The gift won't go to the nearest relative of the intended beneficiary but will fail. This will increase the size of the residuary estate. If the person who is gifted the residue of the estate passes away before the Will maker and there is no substitute beneficiary named in the Will then the residue of the estate will pass in accordance with the intestacy rules
The Will maker does not carry out any inheritance tax planning as part of their Will preparation. This could mean the difference between the estate paying no inheritance tax or thousands of pounds in inheritance tax
The Will writer assumes that their jointly owned family home or their pension fund will pass by their Will but that isn’t necessarily correct because, for example, the home is owned as joint tenants and the joint tenancy was never severed or the pension scheme rules says that the pension fund passes by nomination rather than through the provisions in a Will.
These are just a few of the things that can go wrong when you chose to write your own Will. Sadly, it is often not until it is too late and someone has passed away, that friends and family find out about the unintended consequences of a badly prepared do-it- yourself Will.
It is therefore best to take advice from our Cheshire Will solicitors when contemplating drawing up your own Will. If you are concerned about the cost of a Will then a solicitor can talk you through the cost. At Evolve Family Law we publish a price guide for the services we provide that includes the cost involved in preparing a Will for you. Many realise that getting an expert to write a Will not only isn’t that expensive but gives the security of knowing that your loved ones are properly protected.
Why use Evolve Family Law to write your Will?
We think the question ‘’why use Evolve Family Law to write your Will?’’ is best answered by quoting the words of two recent clients of Will solicitor, Chris Strogen. The clients said:
‘’Thank you so much for a great service, absolutely first class’’.
‘’Very helpful and friendly, effective and efficient. Definitely recommend’’.
Online Cheshire Will and Estate Planning Solicitors
To make a Will or estate planning call the Will and estate planning solicitors at Evolve Family Law or complete our online enquiry form and we will arrange a face to face meeting, telephone appointment , video conferencing or Skype call to discuss how we can help you.
Lawyers refer to ‘the probate’ of a loved one and often make assumptions that everyone knows what probate is. That certainly isn’t the case but sometimes, after the death of a loved one or relative, you are too upset or embarrassed to ask questions about probate and what it involves. In this blog we look at what probate is, what it involves and answer your questions about probate.
What is Probate?
Probate is the name of the legal process that may have to be undertaken when a person passes away to legally enable the deceased person’s assets , property and belongings to be sold or transferred in accordance with the Will or, if the deceased left no Will, under intestacy rules.
The word ‘probate’ is a legal term, like conveyancing for the legal work connected with a house sale or purchase. It is just a historic word for sorting out the legal paperwork after the death of the deceased.
Do you always need to get probate?
Not every estate needs to go through probate. It is a blessing if an estate does not have to go through probate as it saves the relatives and beneficiaries time and money if the estate of the deceased does not have to go through probate.
If you are uncertain if an estate will need to go to probate it is best to ask a Cheshire Probate solicitor who will be able, with a bit of information about the size and contents of the estate, to be able to tell you if probate is needed and, if so, how long it is likely to take and cost in legal fees.
Does an estate have to go through probate if there is a Will?
An estate doesn’t necessarily have to go through probate if there is a Will. That is because probate doesn’t depend on whether the deceased left a Will or died without a Will (intestate) but on the size of the estate and the type of assets it contains. That is why it is best to get specialist help so the estate doesn’t spend unnecessary money on probate if it isn’t needed.
What happens during probate?
If you are told that your loved one or your relative’s estate needs to go through probate then it is difficult to understand what takes the time unless you know what probate involves.
Probate is the technical term for the legal process of sorting out the property, money, possessions (called the estate) and the financial affairs of the person who has died.
If the deceased died without leaving a Will then ‘letters of administration’ are needed before the estate can be disposed of in accordance with intestacy rules.
If the deceased died leaving a valid Will then a ‘ grant of probate ‘ is needed before the estate can be distributed to the beneficiaries in accordance with the terms of the Will.
Once the letters of administration or grant of probate is obtained then the next of kin or the executors of the Will have the legal authority to sell or transfer the assets in the estate, either according to intestacy rules or the provisions in the Will.
Step by step guide to probate
If you are the next of kin or the executor of a Will it can be frustrating to think that ‘nothing is happening’ but probate takes time because it involves:
Identifying the deceased’s assets and liabilities. How difficult this is depends on the paperwork left by the deceased and the nature of their estate and any liabilities. This is the first step to see if probate is needed and to determine the value of their Estate
Checking if the deceased died intestate or with a valid Will and identifying the relevant next of kin under the intestacy rules or beneficiaries under the Will
Calculating the value of the estate and seeing whether any inheritance tax is payable to HMRC. A tax return has to be completed
Applying to the probate registry for the letters of administration or grant of probate
Once the documents are provided by the probate registry paying off any debts and liabilities from cash left by the deceased or selling assets to pay any debts that the deceased had at the time of his or her death and, where necessary, paying any inheritance tax payable on the estate to HMRC
Preparing estate accounts to record the assets in the estate (including cash movements from the date of death of the deceased) to show what assets have been sold and what liabilities and debts paid. These accounts are approved by either the executors of the Will or, in the case of an intestacy, by the deceased’s next of kin
Checking to make sure that there are no challenges to the Will or claims against the estate and , if not, arranging for the balance of the estate to be distributed to the next of kin entitled to the estate under intestacy rules or the beneficiaries under the Will. This can involve the sale or transfer of the family home or an investment portfolio. If the estate is large or complex then sometimes interim distributions are made until the estate can finally be sorted out and any final dispositions made to the next of kin or beneficiaries.
Do you need a probate solicitor to get probate?
You don’t have to use a probate solicitor to secure probate. The choice is yours. However, the size and the complexity of the estate might make it best to instruct a probate solicitor. For example, if there is likely to be inheritance tax payable or capital gains tax. Other scenarios that would justify using a probate solicitor to secure probate for the estate include:
The next of kin in an intestacy or the executors of a Will don’t get on very well with one another or there are ‘trust issues’
One of the next of kin or the beneficiaries is very keen for the estate to be distributed very quickly and you don’t have the time to sort out the estate as quickly as they would wish
There is the potential for the Will to be challenged, either by someone saying that the Will isn’t valid or that the deceased didn’t leave reasonable financial provision for a family member or dependant out of their estate. Claims can also be made against an estate if the deceased died without leaving a Will and a close family member or dependent says that the intestacy provision doesn’t make reasonable financial provision for them
Protecting the executors from personal liabilities arising from acting as the executor of a Will. For example, protection from tax liabilities
The complexity of the estate, for example does the estate include a family business or should a deed of variation be completed to minimise inheritance tax payable on the estate?
There are other reasons why you may want or need to use a probate solicitor and that is why it is best to talk to a probate solicitor about what getting probate involves and the costs and timescales before making a decision about whether to apply for probate without a solicitor.
Cheshire probate solicitors
If you have questions about probate or need advice on getting probate please call Chris Strogen at Evolve Family Law for a quote. Call or contact us online. Appointments are available in Holmes Chapel Cheshire or Manchester or by video conference, Skype or telephone appointment.
In this blog we answer your questions on whether you need a new Will. People tend to assume that a Will is good for the rest of their life or that their Will needs updating every year or so. The answer to whether your Will needs changing often lies in whether changes have occurred in your personal or financial circumstances or whether the personal or financial circumstances of your family and your planned beneficiaries have changed.
Online Cheshire Will solicitors
If you need help making a Will or changing your current Will then the Wills and estate planning team at Evolve Family Law can assist. Call us for a no obligation quote or complete our online enquiry form and we can set up an appointment in person, on the phone, video conference, or Skype call.
Do I need a new Will?
The answer to whether you need a new Will is ‘maybe and lets have a proper chat about it’. That is because so much depends upon your individual personal and financial circumstances. It may be that nothing significant has changed for you or any of your beneficiaries. In that case your Will may be OK. However, it is still good to check as if your Will was prepared some years ago, or drafted by a non-specialist solicitor, it may not be as tax efficient as it could be.
There are also many occasions where a Will maker decides that they would like to make some bequests or additional specific bequests to family members or friends (such as the gift of a fob watch to a grandson or an eternity ring to a daughter or to a close friend).
If you want to make a single specific bequest (or add a single additional bequest to the ones already contained in your Will) then it may be possible to do this by getting your Wills and estate planning solicitor to prepare a codicil for you (a supplemental document to your existing Will). In other scenarios, it is easier and potentially less confusing for a new Will to be drawn up. For example, if beneficiaries in your existing Will have moved house or changed their surname because of marriage or divorce and so your original Will could benefit from a bit of tidying up.
In many circumstances, people don’t realise that their Will is no longer fit for purpose and needs a complete overhaul and a rewrite. That is because changes in personal or financial circumstances may not seem legally significant to you but they can be.
When do I need a new Will?
You need to take legal advice from a Cheshire Wills and estate planning solicitor if any of the following applies to you:
Your original executors of your Will have passed away and there is no substitution of executor clause in your Will
You have got married or remarried
You have separated from your wife, husband, civil partner or partner
You have formed a new relationship – you still need estate planning advice whether or not you want to leave a share of your estate to your new partner. If you don’t review your estate planning and take appropriate action then you may increase the prospects of a claim being made against your estate to challenge your Will. The risks of this can be minimised if you make a new Will
You have new step children or step grandchildren and they aren’t already included in your Will as a class of beneficiaries
Covering unforeseen events if your original Will doesn’t set out what will happen if one of your beneficiaries dies before you or specifically names your children or grandchildren but you now have had additional births within the family
Age of inheritance - you may want to change the age that your beneficiaries can inherit. For example, increase the age from eighteen to twenty five or increase the powers of your trustees so that they can advance monies to any young beneficiaries to help with education fees or other specified expenses
Your beneficiary’s personal or financial circumstances have changed.
There are lots of other reasons why your Will may need to be reviewed. It is best to take legal advice every couple of years to double check that your Will still meets your needs and protects your family and loved ones.
Why should I change my Will if my beneficiary’s circumstances change?
It may appear to you that the change in your beneficiary’s personal or financial circumstances isn’t relevant to your Will or estate planning but it is best to review your Will if your beneficiary:
Gets married – especially if they don’t sign a prenuptial agreement prior to their marriage .You may want to place their inheritance in trust to protect the family money
Separates or divorces from their husband, wife or civil partner. That is because if you leave a legacy to a beneficiary who is going through a separation or divorce , and you pass away, their spouse or civil partner may try to make a claim on the money. This can be avoided by making a new Will or placing the legacy in a trust that can form part of your new Will
Passes away without your current Will saying who you would like to receive their legacy instead of them. For example, you may want their legacy to be shared between their children
Is made bankrupt or is at risk of bankruptcy. If a beneficiary inherits money whilst bankrupt the money will go to their trustee in bankruptcy
Has mental health issues or special needs as you may not have realised at the time that you made your Will that your beneficiary had these difficulties. For example, if you made your Will many years ago prior to the birth of your children or grandchildren and simply left your estate ‘to your children’. One of your beneficiaries may need the protection of a trust that can be created in your new Will
Your beneficiary isn’t financially prudent so you may prefer to delay the date that they can receive your legacy or place it into trust.
Updating your Will is one of those chores that we can put off but it is best not to. If you are uncertain about whether your Will needs reviewing and updating then it is best to take legal advice from a Wills and estate planning solicitor.
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For help changing your Will or estate planning contact our efficient and friendly team for a quote.
If you have inherited a legacy, whether it is a part share in a house or a cash gift, you are reliant on the executors of an estate to sort out Probate , gather in the assets and then distribute the assets in accordance with the deceased’s Will.
The Executor of a Will
The executors of a Will are people chosen by the deceased to handle their Will. The executors could be family members, friends or professionals, such as a solicitor, accountant or the bank.
If the executors are friends or family of the deceased then the executors can hand over a lot of the responsibility for sorting out the deceased’s estate by instructing a probate solicitor to administer the probate and the sale of assets and the distribution of legacies to beneficiaries. Most lay people take this option as they are honouring the appointment made in the deceased’s Will but not leaving themselves open to criticisms about delays in payment of legacies or problems with securing probate.
However, a friend or family member appointed as an executor may not get on with the other executors or with the beneficiaries. The executor may say that they want to sort out the probate themselves, leaving the beneficiaries fearing there will be a delay in sorting out the estate and payment of legacies. In other situations, the deceased may have appointed a bank as his or her executor not appreciating that the bank’s charges for handling the estate may be a lot more than a local Cheshire probate solicitor. The additional administrative charges might be an issue for the beneficiaries as the costs of sorting out probate and administering the estate will be deducted from the estate before the residuary estate, after payment of any legacies, is divided between the residuary beneficiaries.
How do you Remove an Executor from a will?
If you think that an executor is not up to the job or you think that they are too slow or maybe acting improperly then a court application can be made. The court can make a wide range of orders including an order to remove an executor.
Cheshire probate solicitors normally recommend that you try to resolve the difficulties with an executor first before starting court proceedings. Sadly, that isn’t always possible and so, as a last resort, court proceedings can be started to secure an order to remove an executor.
Avoiding Executor Problems
A good private client and Cheshire probate solicitor will discuss the choice of executors when preparing a Will. After all, it is important that the executors are not too elderly or frail to be up to the task and will be able to work with one another.
It is sometimes thought that it does not really matter who the executor is if the executors are just going to appoint a solicitor to sort out the estate for them. It is still important to choose your executors with care and to make sure that they are willing to undertake the task for you.
For assistance removing an executor or if you have any questions about probate or estate planning contact our expert family lawyers today
It may seem a very odd thing to do but, in some personal and financial circumstances, the decision to give away an inheritance is the right thing to do.
Most people assume that if they have the good fortune to inherit something under a loved one’s Will or intestacy provision, they have to accept the legacy. This isn't always the case.
In an ideal world, it should not be necessary to consider giving away a legacy because the loved one would have left a Will, rather than dying intestate, or would have discussed the bequest in the Will and would have updated their Will.
However, what does happen if you receive a gift as part of an inheritance and you decide you do not want or need it? There are a number of circumstances where the beneficiary of a Will may not want to receive their inheritance, for example:
They may want to make provision for someone who has been excluded from the Will; or
They may want to give their share of the deceased’s estate to a family member who is not as financially well off as they are ; or
They may want to equalise the gifts if the testator has favoured them over other beneficiaries; or
They may wish to give all of their legacy or part of it to charity; or
They may want to make the Will tax efficient.
Deeds of Variation
In order to make changes to a Will after the death of the testator, a Deed of Variation should be drawn up.
So that the tax advantages from the Deed of Variation can be obtained, the document has to be signed and executed within two years of the date of death of the testator.
A Deed of Variation can be executed before or after the Grant of Probate or Letters of Administration (if the deceased died intestate without a Will) has been obtained. Any beneficiaries who are affected by change in Wills must agree and sign a Deed of Variation. Furthermore, all the personal representatives of the estate should also ideally sign the Deed of Variation.
Who Can Sign a Deed of Variation?
If a beneficiary has capacity to make their own decisions then they have the authority to execute a Deed of Variation. A beneficiary under the age of eighteen cannot sign a Deed of Variation. No one else can sign a Deed of Variation on behalf of a minor child.
How Can a Deed of Variation Reduce Tax?
A Deed of Variation may be the answer if a Will has not been drawn properly to obtain the best tax treatment or the tax rules have changed. For example, executing a Deed of Variation may reduce the inheritance tax payable by:
Varying the gifts in a Will to leave money to charity. Any gift to charity does not attract an inheritance tax charge. If charities are left at least ten percent of the net estate then the estate can qualify for a reduced rate of inheritance tax of thirty-six percent, instead of forty percent;
If a husband or wife died without a Will, with children, the surviving wife, husband or civil partner will receive assets up to £250,000 and half the remainder of the estate. The other half of the estate would pass to the children. If the amount going to the children exceeds £325,000 then this will attract inheritance tax. A Deed of Variation can be signed so the entire estate passes to the surviving spouse or civil partner. If an estate passes to a surviving spouse or civil partner no inheritance tax is payable. The transferable nil-rate band can be utilised on the second death.
It pays to get legal advice on whether a Deed of Variation is a sensible option. Some may think that a Deed is unnecessary but with expert legal advice, it can save on inheritance tax and money to get a Deed of Variation drawn up.
For help preparing a Deed of Variation or drawing up a Will or estate planning please contact our expert family lawyers today