Making your Wills FAQs

My partner and I live together. What is she entitled to if I die without making a Will?
 
Generally speaking a cohabitee is entitled to nothing. She may be able to claim against your estate if you have been cohabiting for a period of more than two years prior to your death or was being maintained by you or argue that she had contributed towards the payment of an item (such as your mortgage) and had therefore acquired an interest. Both of these actions will be expensive, stressful and will 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.
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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.
 
We offer an effective solution to ensure that the surviving partner can access the assets of the first to die but in such a manner that such assets as are remaining will pass to the children of the first to die.
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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 ascertain the value of your estate, apply for Probate of your Will, pay your debts and any tax due from the assets of your estate and give effect to the wishes set out in your Will. You may also find our Guide to Executors helpful.
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My aunt died earlier this year leaving me £10,000. Will I have to pay tax on my legacy?
 
Generally speaking the answer is no. It is only where legacies are specifically made subject to inheritance tax or where the assets in the residue of the estate are insufficient to meet the inheritance tax.
 
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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:-
 
  1. his personal chattels (in general terms, furniture and personal effects)
  2. £250,000
  3. 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.
 
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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 an application being made to the Office of the Public Guardian 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. The legislation (the Community Care Act 1990) does not put any time limit on pursuing and considering gifts made by an applicant. Although in practice it is understood that currently Local Authorities tend to ignore transfers which have taken place more than two years ago; this cannot however be relied upon.
  • 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).
  • 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.
  • If you do give away your property 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.
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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 £325,000 of your estate is taxed at nil, thereafter your beneficiaries will pay 40% in inheritance tax on the surplus. Where assets pass to a spouse who is domiciled in England & Wales then no inheritance tax is payable in respect of those assets. 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 their inheritance. There are ways to avoid paying inheritance tax and you should speak with a solicitor to discuss how best to do this.
 
Where the surviving spouse dies after 9 October 2007 then to the extent that the first spouse had not used the nil rate band (i.e. the maximum sum which can be given without incurring any inheritance tax) available on their death then the unused proportion of that nil rate band will be available to the surviving spouse on their death. Currently this enables a surviving spouse to potentially have a nil rate band of £650,000.
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For further information please contact either
John Barrett on 01423 850302 or e-mail him at JohnBarrett@berwin.co.uk
or Julie Jewers on 01423 722565 or e-mail her at JulieJewers@berwin.co.uk
or Gareth Marland on 01423 542770 or e-mail him at GarethMarland@berwin.co.uk