Wills and Probate

Common questions about Wills and Probate

Questions:

> If I get married/register my civil partnership will it affect my existing Will?

Unless your existing Will was specifically stated to having been made in contemplation of your marriage/registration then it will be automatically revoked by the marriage/registration

> Is it correct that I don't need a Will because if I die everything will go to my husband/wife/civil partner anyway?

Not necessarily - the Rules of Intestacy say that the surviving spouse/civil partner only takes £250,000.00 of free estate if you leave children and £450,000.00 of free estate if you leave parents or siblings - if you own a property in your sole name these limits can soon be achieved and you will leave your spouse/civil partner in a mess.

> My son is going through an acrimonious divorce - how can I stop his wife getting her hands on my money if I die before it is all sorted?

Make a Will that leaves your son's "share" of the estate on a discretionary trust so that he has no right to demand the monies.  You can always change your Will once the divorce is sorted.

> My son is special needs and is in receipt of state benefits - if I leave part of my estate to him it will severely effect his right to claim benefits - what can I do about this?

Change your Will to place your son's "share" into a discretionary trust - because he does not have a right to demand the monies from the Trust then they cannot be taken into account in respect of his benefits.

> My husband and I are getting older and are worried about losing the whole of the house to nursing home fees - is there anything we can do to avoid this?

This is only relevant if one of you dies and the survivor of you is living alone and has to go into a home.  Basically, you and your husband should each make Wills which say that when the first of you dies you give your half share of your house to your children subject to the survivor of you having the right to live in the whole of the house for the rest of his or her life.  This means that if the survivor of you needs to go into a home then only half of the value of the house is available for nursing home fees.

Note that if one of you needs to go into a home but the other remains living in your house then your house is disregarded.

> Is it correct that as I have made a Will my estate will not need to go to Probate?

Invariably not the case - your Will nominates who you want to be as your Executors but they actually have to apply for a Grant of Probate to be formally appointed Executors.  The only time Wills do not have to go to Probate is if your estate is very small (under £15,000.00) or if all your assets are joint with the surviving spouse/civil partner.

> I am desperately worried that my children will have to pay for my funeral account and/or inheritance tax out of their own money because Banks and Building Societies will not pay money until Probate is obtained - is this true?

Not so as long you have a Bank account, Building Society account or National Savings which have sufficient money to pay inheritance tax and funeral fees.  The institution will write a cheque to pay your funeral account and inheritance tax before Probate is granted.

> I believe Probate takes forever?

Not so - if your estate is under £325,000.00 then the papers can be drawn on best estimates of valuations and can be obtained very quickly.

> Why would I need a Power of Attorney? - I am still able to deal with my own affairs.

A Power of Attorney takes nothing away from you and if you leave it until you are unable to manage your affairs then it is invariably too late to make a Power of Attorney as you do need full mental capacity to execute the document.  It is therefore advisable to make a Power of Attorney whilst you are mentally and physically able to do so.

> Is it against the law for me to give away more than £3,000.00 in any one year?

No - you can give away whatever you like however if you die within 7 years of making the gift then the first £3,000.00 is ignored and the value of the balance of the gift is added back to your estate for inheritance tax purposes.

> If I give my house to my children then I believe that after 7 years it will not be taken into account for inheritance tax purposes?

Not so if you remain living in your home - this is a gift with reservation of benefit and the 7 year rule does not apply.  The whole value of your home as at the date of your death will be added back to your estate when you die for inheritance tax purposes.

> My husband and I are retired and live in a lovely big house which is mortgage free. We can just about survive on our pensions but we have no extra cash to go on holiday or make any improvements or do any repairs to the home we love.  We do not wish to move house to release capital - is there anything else available to us?

Equity Release - releasing capital from your home is not the taboo it used to be so long as you choose a reputable company which is Safe Home Income Plan (S.H.I.P.) registered - this means the company is regulated and must present all the facts in an open and transparent way.  In your circumstances this could be just what the doctor ordered.

Contact us

O'Neill Patient Solicitors LLP
Chester House, 2 Chester Road, Hazel Grove,  Stockport, Cheshire, SK7 5NT

Telephone:

0161 694 3000 / 0161 483 8555

E-mail:

info@oneillpatient.co.uk

Fax:

0844 576 2140 (we do not accept service by fax or email)