Frequently Asked Questions
Who needs to have a Will in place?
Anyone that fits into the following criteria:
- A person that is married or has a partner
- A property owner or someone that has other assets
- A person who has children (especially if from a previous relationship)
- A person who has grandchildren
- Someone that wants to decide who inherits from them and not have the decisions left to the rules of intestacy.
How often should I review my Will? Or under what circumstances?
The general rule of thumb is to review your Will every 4 to 5 years, or when there has been a change of circumstances (ie. a birth, death, marriage, retirement, receipt of inheritance).
What happens if I need to pay care home fees later in life? Can I use my Will to safeguard my property for my children?
Yes, if you have a jointly owned property, and it is owned as “tenants in common”. You can then put your share of the property into a trust for your children to protect against care home fees.
What are the duties of an executor in a Will?
The duties include:
- Making the funeral arrangements
- Applying for probate
- Ensuring any inheritance tax is paid
- Distributing the assets under the terms of the Will
- Collecting any debts
- Realising the assets
- Paying any creditors
If I don’t write a Will, does that still mean my spouse automatically inherits everything?
Without a Will there is no guarantee that your spouse will inherit everything. When there is no Will in place, the rules of intestacy apply.
If I gift a sum of money to one of my children, can my Will be written to reflect this and ensure that the sum is deducted from their inheritance and given to my other children?
Yes, it can. The Hotchpot Clause can be included in your Will, which takes into account any gifts or loans made to each beneficiary, from the testator, during their lifetime. For example, if the deceased has three children and one has received a significant lump sum in previous years, the amount of this sum is deducted from their inheritance and distributed to the remaining two.
My father did not include me in his Will, can I contest this?
Yes, certain people, including the deceased’s children are able to contest a Will under the Inheritance (Provision for Family and Dependants) Act 1975.
Others that are able to contest a Will are:
- Spouse or civil partner
- Former spouse, or civil partner who has not been married
- Stepchildren
- A dependant
- A cohabitee (within 2 years of the passing)
My husband and I have mirror Wills in place, which leaves everything to my daughter (my husband’s stepdaughter) on second death. Can he change this after I die?
Yes, if you die first your husband will able to change his Will by a Deed of Variation. This a legal document that allows beneficiaries of a Will or intestacy to change how a deceased person’s estate is distributed after their death
When I pass away, will my debts die with me?
No, If you have debts when you pass away, these should be paid for from your estate, before any money is distributed to the beneficiaries. If, however, there is not enough money in the estate to cover any outstanding monies owed, they do not become someone else’s responsibility.
The only exception to this would be when there is a loan or credit card in joint names.
How old should I be before putting a Lasting Power of Attorney in place?
You must be 18 or over and have mental capacity. It is something which should be considered sooner rather than later. We could all find ourselves in a position where we have lost capacity. This could be due to a serious accident, a stroke, or perhaps a degenerative disease such as dementia.
If this happens, a family member (even a spouse) does not have the automatic authority to make decisions on your behalf. Having a Lasting Power of Attorney in place gives your attorneys that power.
Can I just have one Lasting Power of Attorney for both my health and finances?
No, there are two types of Lasting Power of Attorney as follows:
- Property and Financial Affairs
- Health and Welfare
We would recommend you have both LPAs.
Do I have to use the same person for my Health and Welfare LPA as I use for my Property and Finance LPA?
No, you can have different attorneys for Property and Financial Affairs and for Health and Welfare.
What are the rules of intestacy?
If you die without a Will in the UK, your estate will be distributed according the the rules of intestacy. This means that a surviving spouse or civil partner inherits the entire estate if there are no children.
If there are children, the spouse receives a fixed amount, all personal possessions, and half the remainder, while the children divide the other half.
If there is no spouse or partner, the estate goes to children, then parents, followed by siblings, and so on, with assets going to the Crown only if no living relatives can be found.
