Legal Advice On Wills


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Legal Advice On Wills

  1. 1. CLS Direct Information Leaflet 10 July 07 Wills and Probate Dealing with someone’s affairs when they die A free and confidential service paid for by legal aid 0845 345 4 345
  2. 2. When a person dies, someone has to deal with their affairs and decide what will happen to the things they owned. This leaflet explains what the law says about how this should happen. Why should I make a will? 3 What makes a will valid? 3 Who can be a witness? 3 What does an executor or administrator do? 4 What is probate? 4 Will I have to pay inheritance tax? 6 Who takes charge if there is no will? 7 Who gets the estate if there is no will? 9 What can I do if I think there is something wrong with the will? 10 What can I do if I think the will is unfair? 11 What if there isn’t enough money to pay for the funeral? 12 What if there isn’t enough money to pay the person’s debts? 12 Terms used in wills and probate matters 13 The leaflets in this series give you an outline of your legal rights. They are not a complete guide to the law, nor do they explain how the law will apply to you or to any specific situation. The leaflets are regularly updated, but the law may have changed since this was printed, so information in it may be incorrect or out of date. If you have a problem, you will need to get more information or personal advice to work out the best way to solve it. See ‘Further help’ on page 15 for sources of information and advice.
  3. 3. Dealing with someone’s affairs when ‘mentally capable’ (which means they die is often distressing. But it can they fully understand what they are also seem difficult and confusing.This doing in writing their will); and can be made worse by the unusual at least 18 years old (though you words and expressions that are used can make a will if you are younger to describe who does what and the and on active military service). procedures when someone dies. See ‘Terms used in wills and probate The will must: matters’ on page 13 for explanations have been made without ‘undue of many of these words. influence’ (for example, without a threat from someone); Why should I make a will? be in writing; When you make a will, you can say how your funeral should be dealt with, and be signed by the person whose will what will happen to your possessions it is (the ‘will-maker’ or ‘testator’) and assets when you die. If you die and by two witnesses, who must all without making a will (called ‘dying be together at the signing (see ‘Who intestate’), it can be complicated to can be a witness?’ below); and work out who will get what. be dated when it has been signed. The Administration of Estates Act 1925 No amendments or additions should sets out who can apply to deal with be made after the will has been signed. your affairs if you die intestate (called ‘administering the estate’) and how Who can be a witness? your belongings are to be shared. But Any person who is over 18 can sign as a several people may have an equal right witness. However, the witnesses should to administer your estate (for example, not be people who benefit from the your children).When several people are will or who are appointed executors equally entitled to act as administrator, (or the husband or wife of one of these the usual rule is ‘first come, first served’. people). If you witness a will and you However, without a will, there may be are named as someone who will dispute or uncertainty. benefit from it, you will lose your right What makes a will valid? to that benefit when the person dies. For a person to make a valid will, they Special rules apply in certain situations. must be: For example, if a blind person or 3 Wills and Probate: Dealing with someone’s affairs when they die
  4. 4. someone who can’t read or write wants value of the estate to the Capital Taxes to make a will, you should speak to an Office. (See ‘Will I have to pay adviser to find out more about this. inheritance tax?’ on page 6.) Even if See ‘Further help’ on page 15 for the executors believe there is no details of where you may be able to inheritance tax to pay, they must find an adviser. complete a form giving details of the assets and certain gifts made by the What does an executor or person who died. administrator do? The executors may have to deal with The executors are the people claims about unfair treatment if a appointed in a will to deal with the relative or someone who is a estate of the person who has died.An dependant of the person who has died administrator is the person who deals thinks that what they have been left in with the estate of a person who has the will isn’t fair, or that they have been died intestate (without a will).The left out unfairly (see ‘What can I do if I executor or administrator may both think the will is unfair?’ on page 11). be called a ‘personal representative’. If you are an administrator acting If a person has died leaving a valid will, where there is no will and you handle the executors can normally arrange all the matters personally (rather than the funeral straight away. However, using a solicitor), you will be personally there may be a delay, depending on liable (responsible) if you don’t follow how the person died. the ‘rules of entitlement’ (the rules The executors can also take charge of governing who gets what) correctly. the house and possessions of the For example, you cannot give more to person who has died unless it passes someone the dead person liked, or automatically to a joint owner (for refuse to pay the correct share to example, the person’s living husband someone the dead person disliked, or wife). But if there is a will, they must even if the dead person had discussed follow what it says. this before they died. The executors must then work out What is probate? whether they need to apply for probate. Probate (or more specifically ‘probate (See ‘What is probate?’ opposite.) of the will’) is an official form that gives If there is (or could be) inheritance tax the executors of the will the right to to pay, the executors must report the deal with the assets and property of 4 Wills and Probate: Dealing with someone’s affairs when they die
  5. 5. the dead person.When you show the banks and building societies have probate form to a bank, for example, the right to insist on probate in they know they are dealing with the this case). person who has the right to handle the However, you will need to apply for estate, and they will allow you to probate if the person who died had: withdraw money from the dead person’s account. any bank, building society or National Savings accounts with When you apply for probate, you are more than £5,000 in them; promising the Probate Court that you will deal with (‘administer’) the estate stocks or shares; or as set out in the will and according to property or land (unless it is owned law. If you don’t do this, you will be in as a joint tenancy and so passes trouble with the court (and with the automatically to the other owner). people who should benefit from the will). Probate makes sure that the You may have to apply for probate if executors carry out their task properly. the person had any life insurance or term insurance policies that are paid When there is no will (or there are no to the estate. Some kinds of policy say executors named in the will or the that they will be paid straight to the executors have died), the official form beneficiaries of the policy (rather than is called ‘letters of administration’. to the estate), and you do not need Do I always need to get probate? probate for these. In some cases, you don’t need to apply You will have to apply for probate if for probate.This is when: the person who has died gave away large gifts or sums of money (which, the person who has died left very with the person’s other assets, total little (say, belongings and money more than a certain amount, called the amounting to less than £5,000); ‘nil rate band’) in the seven years everything they owned was held in before they died. If so, inheritance tax joint names with someone to whom must be paid on the amount over the their share passes automatically nil rate band. The amount of the nil (normally a husband or wife); or rate band is reviewed each year – see ‘Will I have to pay inheritance tax?’ on any bank or building society page 6. Even if these gifts were not accounts that the person had worth more than the nil rate band, contain less than £5,000 (though their value must be added to the Wills and Probate: Dealing with someone’s affairs when they die 5
  6. 6. assets of the dead person, because the probate registry.The registry can send amount of inheritance tax is based on you information packs.These include the value of the estate plus the value probate application forms and of any gifts made in the seven years information on how to fill them in. before they died (excluding certain You can also talk to registry staff if annual allowances). you are having difficulty filling in a probate application. There is an important exception to the seven-year limit on gifts: if the person Will I have to pay inheritance tax? who died gave away their home but continued to live in it rent-free, its Whether or not you, as the executor, value will count towards the assets on have to pay inheritance tax out of the which inheritance tax must be paid, estate depends on: regardless of when they gave it away. how much the property and In most cases where there is no will belongings of the dead person you must apply for ‘letters of were worth when they died; administration’, which serve the same the value of any trust from which purpose as probate.You apply for a the dead person benefited; grant of letters of administration in the same way you would apply for the value of certain gifts the probate. However, as with probate, person made in the seven years you may not have to apply for letters before they died, or longer if they of administration if the person’s estate ‘reserved an interest’. (An example was not worth very much. of reserving an interest would be if they gave away their house on the How do I apply for probate? condition that they were allowed You may apply in person for probate or to live there free of charge or for letters of administration, or you may very low rent until they died.) instruct a solicitor, who can apply on If all these add up to more than a certain your behalf.You apply to: amount (called the ‘nil rate band’), the the Principal Registry (in London); or estate has to pay inheritance tax at 40 per cent on the sum of money above a district probate registry (in other this amount.The amount is reviewed cities and many large towns). every year. It is £300,000 for the year See ‘Further help’ on page 15 for the April 2007 to March 2008 and will rise number to call to find your nearest to £350,000 by April 2010. 6 Wills and Probate: Dealing with someone’s affairs when they die
  7. 7. Not all gifts made within the seven- The cost of legal advice will be paid out year period have to be included in the of the estate. If you get the calculation tax calculations.All gifts between wrong without having taken advice husbands and wives are exempt from and you pay the beneficiaries without tax, as are those between same-sex paying the right amount of tax, you partners in a registered civil partnership may have to pay what is owed out of (see ‘Same-sex relationships’, opposite). your own pocket. You can also make exempt gifts in The executors or administrators are other ways, including: responsible for paying any inheritance a single gift of £3,000 each year; tax that is due out of the assets of the estate, and it is due six months after any number of ‘small gifts’ of under the end of the month in which the £250 each to different people; person died. Some or all of the gifts to charities or political parties; inheritance tax will have to be paid £5,000 to your child if they are before you can obtain probate or getting married; and letters of administration. gifts that can be described as Same-sex relationships ‘normal expenditure’ out of your Same-sex (gay or lesbian) couples income (which means, for who have registered their relationship example, that it would not reduce as a civil partnership have the same your standard of living). tax advantages as married couples. If you give away your house but Similarly, if a civil partnership breaks continue to live in it without paying a down, the couple face the same legal proper rent (called ‘reserving an problems as a married couple interest’), the value of the house will (though a legal separation is called a have to be included in the inheritance dissolution rather than a divorce). tax calculations when you die, even if you made the gift more than seven Who takes charge if there is no will? years before your death. If you, as next of kin (or someone else Inheritance tax is complicated, so you with similar powers), believe that should get specialist legal advice someone who has died has left a will, straight away if you are an executor but no one can find it, you can take and the Probate Registry tells you that steps to find out if they made one. you may have to pay inheritance tax. Wills and Probate: Dealing with someone’s affairs when they die 7
  8. 8. These can be: with the same mother and father, or descendants of the brothers or sisters. searching the belongings of the person who has died for any 5. Their half-brothers or half-sisters evidence that they made a will (for (who had either the same mother or example, a letter from a solicitor); the same father) or their descendants. phoning or writing to solicitors 6. Their grandparents. and banks that the person might 7. Their uncles and aunts ‘of the whole have used; blood’ (this means brothers and applying to the Principal Probate sisters of their parents, as long as Registry to see if the person who they had the same mother and father died left their will there; and themselves) or their descendants. placing advertisements in 8. Their uncles and aunts ‘of the half newspapers and legal journals. blood’ (this means brothers and sisters of their parents if they had If there is no will, the person’s estate only the same mother or father) or will be shared out under the ‘rules of their descendants. intestacy’.These rules set out: 9. The Crown (the state) if there are no who deals with the estate; and relatives. who benefits from it. If several people have an equal right to The person who will deal with the deal with the estate (for example, estate is the closest living relative to brothers and sisters),letters of the dead person, chosen in this order: administration will normally be given to 1. The husband, wife or registered civil the first of these people who applies for it. partner of the person who has died However, there can be a problem when, (but not their unmarried or for example, the dead person has unregistered partners). several brothers or sisters who all want 2. Their children (aged over 18) or to be in charge of the funeral or their children’s descendants (for administration. If they cannot agree example, grandchildren, if they are about this themselves, they must apply over 18). to the Probate Court, which will decide who will take responsibility.This 3. The dead person’s parents. process is complicated and you would 4. The dead person’s brothers or sisters probably need help from a solicitor. 8 Wills and Probate: Dealing with someone’s affairs when they die
  9. 9. Remember, too, that legal disputes (for example, the income or cost a lot of money and take time to interest if the money is invested, resolve.The costs will probably be but not the money itself). The taken out of the estate, if the court capital (the original amount) agrees to this. But otherwise, you risk passes to their children when the being left with a large bill. surviving husband or wife dies. The children of the deceased, including Who gets the estate if there is illegitimate and adopted children, no will? share between them: Any inheritance tax must be paid.After half what is left straight away, if that, all debts (including mortgages they are 18 or over; and and other loans) must be repaid , whether the dead person has made a the other half when the surviving will or not.After that, the parent dies. Administration of Estates Act 1925 Stepchildren get nothing (unless they sets out who gets what in every are named in a will).If one of the children situation where there is no will. Some has already died,leaving children of their of the more common situations are own,their share will pass to those as follows. children (that is,the grandchildren of the If there is a husband, wife or civil person whose estate is being dealt with). partner, but no other relatives If there is a husband, wife or civil The husband, wife or registered civil partner, and relatives (but no partner gets everything (but their children) unmarried or unregistered partner The husband or wife gets: gets nothing). the ‘personal chattels’ (see ‘Terms If there is a husband or wife and used in wills and probate matters’ children on page 13); The husband or wife gets: the first £200,000; and the ‘personal chattels’ (see ‘Terms half what is left. used in wills and probate matters’ on page 13); The parents of the dead person, or, if they have died, the brothers and sisters the first £125,000; and or their descendants, share the other a life interest in half of what is left half of what is left. Wills and Probate: Dealing with someone’s affairs when they die 9
  10. 10. If there are children, but no living (this means brothers and sisters of husband, wife or civil partner the parents of the dead person who had only the same mother or The children share everything equally. father), or If one of the children has already died, leaving children of their own, those 7. the Crown (the state). children will share what their parent One common area of would have inherited if the parent had misunderstanding is over what been alive. If the children are under 18, happens when a person dies without a their share will be looked after by will, leaving children or brothers and personal representatives acting as sisters, but one of these children or trustees until they reach 18. brothers or sisters has already died, If there is no husband, wife, civil leaving children or grandchildren of partner or children their own. In this situation, those children or grandchildren will get the Everything will pass to the next share that their parent would have got, available group of relatives, in the had they been alive. same order as that for applying for letters of administration.This means: Similar rules apply so that, for example, where an uncle has already 1. the parents of the dead person; died leaving children, those children 2. brothers or sisters of the dead will get the share the uncle would have person who have the same mother got if he had been alive. and father, or their descendants; What can I do if I think there is 3. half-brothers or half-sisters (who something wrong with the will? had either the same mother or the same father), or their descendants; The most common reasons for a will not being valid are when: 4. grandparents; the person who made the will did 5. uncles and aunts ‘of the whole not get their signature witnessed; blood’ (this means brothers and sisters of the parents of the dead the witnesses were not together person, as long as they had the when the will was signed; or same mother and father the person who made the will got themselves), or their descendants; married after making their will. 6. uncles and aunts ‘of the half blood’ Also, if one of the witnesses is a 10 Wills and Probate: Dealing with someone’s affairs when they die
  11. 11. beneficiary to the will,they lose the right anything that you specifically mention to what the will says they should have in the will as going to your former (though the rest of the will is still valid). husband, wife or partner is ignored. The rest of the will is still valid. You can lodge a ‘caveat’ at a probate registry to stop probate or letters of What can I do if I think the will is administration being granted if: unfair? you think there is something If you are unhappy because you have wrong with the will; or been left out of a will altogether or someone is applying for letters of because you have been left without administration when they don’t ‘reasonable financial provision’, you have the right. may be able to make a claim under the Inheritance (Provision for Family and However, you will need specialist legal Dependants) Act 1975. But you can do advice if you are in this position. this only if you are: Other reasons may make a will invalid, the husband, wife or civil partner including: of the person who has died; the person was not mentally capable the former husband or wife of the when they made the will; or person who has died, if you have they made the will under ‘undue not remarried or given up your influence’ from some other person. claim when you got divorced; It is difficult to prove that a will is a partner who lived with the invalid.You would normally need deceased for at least two years medical evidence to show a person immediately before the death; was not mentally capable when they a child of the person who has died; made their will, and you would need specialist legal help. a person who was treated as a child of the family by the person If you get married or register a civil who has died when they were partnership, your will automatically married (normally, a stepchild); or becomes invalid, unless you mention your forthcoming marriage or civil someone who was totally or partly partnership in the will. maintained (supported financially) by the person who has died. If you get divorced or dissolve your civil partnership after making a will, If you think you may be able to claim Wills and Probate: Dealing with someone’s affairs when they die 11
  12. 12. against the estate because you are in page 15 for details of how to contact one of these groups,you should get legal them). advice.Claiming against an estate is complicated,and there is no guarantee What if there isn’t enough money to that a court will agree with your claim. pay the person’s debts? The result depends on the circumstances When someone dies,their debts don’t of the case.There are time limits and die with them.They have to be paid out other conditions you need to know of the person’s estate. about.You must lodge your application within six months of probate or letters of If you are administering an estate, you administration being granted.You could must make sure you have paid all the face a large bill if the court refuses your debts before you pay the beneficiaries. application or does not decide that the If you are not sure what the debts are, costs should come out of the estate. you need to advertise in the London Gazette and a local paper for anyone What if there isn’t enough money to who may have a claim on the estate, pay for the funeral? and then wait two months before paying the beneficiaries.The London By asking a funeral director to conduct Gazette is a weekly government the funeral,you make a contract publication that contains various legal agreeing to pay for the funeral.This notices (see ‘Further help’ on page 15 means that,if you are the executor or for its phone number).You could administrator,you should do this only become liable (responsible) for the after you have made sure that there is debts if you pay the beneficiaries enough money in the estate to pay for without having cleared all the debts the funeral.Otherwise,you should be first.You may also have to submit a tax willing to pay any part of the bill that return for the person who has died. won’t be covered by the estate. If there is not enough money to pay all If you need to arrange a funeral when the debts, they must be paid in a there is not enough money in the estate particular order: to pay for it and you are receiving a means-tested benefit,you may be 1. the funeral expenses and eligible for a Funeral Payment grant from ‘testamentary’ expenses (those to the Social Fund.For more information do with dealing with the will); about this,contact your local Social 2. any debt secured by a mortgage on Security Office (see ‘Further help’on property; 12 Wills and Probate: Dealing with someone’s affairs when they die
  13. 13. 3. HM Revenue and Customs; parents who were unmarried), but not their stepchildren (unless they are 4. the Department of Work and specifically mentioned). Pensions, who deal with social security (you may have to refund Common-law spouse This term has any over-payment of benefits); no legal force, although a partner who lived with the person who died for two 5. unpaid pension contributions or years before their death might be able wages. to claim a share of the estate. If all the debts can be paid,but there isn’t Devise A gift of a house or land. enough money left to pay everything set out in the will,the legacies (those where Demise A lease of a house or flat. a specific amount is mentioned) will be Estate All the assets and property of paid first,and the other people the person who has died, including all mentioned will get what is left over. houses, cars, investments, money and If there is not enough to pay all the belongings. legacies,the people entitled to the Executor The person appointed in the legacies will get a proportion of what will to deal with the estate of a person they have been left,depending on how who has died. much money is available.The other people mentioned in the will,who are Inheritance tax The tax that may have supposed to get the remainder,will to be paid when the total estate of a get nothing. person who has died is more than a certain amount (currently £300,000). Terms used in wills and probate matters Intestate Without a will, or a person who dies without having made a will. Administrator The person who deals with (administers) the estate of a Issue All the descendants of a person person who has died intestate (children, grandchildren, great- (without a will). grandchildren and so on). Bequest A gift of a particular object Legacy A gift of money (usually a (for example, an item of jewellery). specific amount). Child In will or intestacy matters, the Letters of administration The children of the person who has died document issued to the administrators include adopted children and by the Probate Registry to authorise illegitimate children (children born to them to deal with the estate. Wills and Probate: Dealing with someone’s affairs when they die 13
  14. 14. Life interest The right to receive the Probate registry A court within the income or benefit from a property or Family Division of the High Court capital sum (but not the capital sum which deals with probate and itself) for life. administration matters.The Principal Registry is in London and there are Minor A person under 18. district registries in other cities and Next of kin In will or intestacy some large towns. matters, the person entitled to the Real estate (realty) Land and estate when a person dies intestate buildings owned by a person. (without a will). Remainder man The person who gets Nil rate band The value of an estate the property or capital sum after the up to which inheritance tax is not death of the person holding a ‘life payable. interest’. Personal chattels Personal Residue What is left to share out after belongings, including jewellery, all the debts, inheritance tax and furniture, wine, pictures, books and specific bequests and legacies have cars (but not money, investments, been paid. property or business assets). Specific bequests Particular items Personal estate (personalty) All the gifted by the will.They may be called investments and belongings of a ‘specific legacies’. person apart from land and buildings. Testator A person who makes a will. Personal representative A general Testatrix is sometimes used to mean a term for administrators and executors. female will-maker. Probate of the will The document Will The document in which you say issued to executors by the probate what will happen to your money and registry to authorise them to deal with possessions on your death. the estate. Proving the will Making the application for probate to the probate registry. 14 Wills and Probate: Dealing with someone’s affairs when they die
  15. 15. Further help The Community Legal Service Community Legal Service Direct The Community Legal Service has been Provides free information direct to set up to help you find the right legal the public on a range of common information and advice to solve legal problems. your problems. Call 0845 345 4 345 You can get help through a national network of organisations including If you qualify for legal aid, you can also Citizens Advice Bureaux, Law Centres, get free advice from a specialist legal many independent advice centres and adviser about benefits and tax credits, thousands of high street solicitors. All of debt, education, employment and these services meet quality standards set housing. You can also find a local legal by the Legal Services Commission. Look adviser or solicitor. for the Community Legal Service logo, Click to find shown below. out more. Many of the organisations offer some Probate registries or all of their services for free. If you There are probate registries in cities and cannot afford to pay for advice you may larger towns. The Probate and Inheritance be eligible for financial support through Tax Helpline will tell you where your the Community Legal Service Fund nearest registry is, and can also answer (Legal Aid). You can order leaflets about questions and send you information funding from the LSC Leaflet line on about applying for probate or letters of 0845 3000 343. You can also use a Legal administration. Aid eligibility calculator on the website: phone: 0845 302 0900 There is also a list of probate registries on the Courts Service website: Social Security For more information about getting financial help if the person who died did not have enough money to pay for their funeral, contact your local Social Security office. It is listed in the phone book under ‘Job Centre Plus’. Ask for leaflet SB16. The Legal Services Commission (LSC) Law Society The Community Legal Service and the phone: 020 7242 1222 Community Legal Service Fund are managed by the Legal Services Commission. To find out more about The London Gazette us visit our website at phone: 0870 600 5522 or find the details for your local Legal Services Commission office in the phone book. Citizens Advice Your local Citizens Advice Bureau is listed in the phone book
  16. 16. The leaflets are also available online at: 1 Dealing with Debt 20 Education 2 Employment 21 Immigration and Nationality 3 Divorce and Separation 22 Mental Health 4 Renting and Letting 23 Alternatives to Court 5 Buying and Selling Property 24 Family Mediation 6 Losing your Home 25 Veterans 7 The Human Rights Act 26 Domestic Violence, Abuse and Harassment 8 Claiming Asylum 27 Living Together and your Rights if 9 Welfare Benefits you Separate 10 Wills and Probate 28 Dealing with Someone Else’s Affairs 11 Dealing with the Police 29 Care Proceedings 12 No-win, No-fee Actions 30 Neighbourhood and Community Disputes 13 Problems with Goods and Services 31 Changing your Name 14 Medical Accidents Advice Guides 15 Equal Opportunities 16 Racial Discrimination G1 A Step-by-Step Guide to 17 Personal Injury Choosing a Legal Adviser 18 Rights for Disabled People G2 A Step-by-Step Guide to Legal Aid 19 Community Care The leaflets are also available in Welsh, Braille and Audio. To order any of these leaflets contact the LSC leaflet line on 0845 3000 343 or email or fax 020 8867 3225. This leaflet is published by the Legal Services Commission (LSC). It was written in association with Paul Elmhirst, a solicitor specialising in wills and probate. LSC010E