Wills & Probate
Solicitors First LLP has considerable expertise in these areas of private client work. Our aim is to offer a confidential and supportive service in the following areas:
1.Probate and administration of estates
2.Contentious probate matters
3.Lasting Powers of Attorney. Preparation and registration
4.Guardianship applications
For advice on these matters and preliminary interview please CONTACT US.
Wills
Frequently asked questions
1. What do I need to bring to first interview?
It is helpful if you bring along brief details of your investments property and savings with approximate values. Also the names and addresses of any individuals you wish to remember. You should also bring some evidence of identification with you. If you own property jointly with another person we will need to know exactly how this is owned to decide if it forms part of your estate
2. Do you keep the original Wills?
This is at your discretion but we are happy to store original Wills for you. No charge is made for storage
3. How long will it take?
Usually following the first interview which would last between 30 and 60 minutes we will arrange a second appointment - usually the same or following week-at which time the Will should available to be signed and witnessed. In the case of more complex Wills we will email or post a draft of the Will for you to consider before the second visit.
We are generally able to offer a 'same day' service in cases of urgency
4. Do you charge for a home visit?
Please speak to one of our staff memebers who can advise you on the costs of a home visit depending upon location..
5. I wish to transfer my house into the names of my adult children. Can you do that?
Yes, but there are few occasions when we would recommend that to happen. For tax purposes it would still be viewed as part of your estate, unless you are paying a market rent to your children
7 years after making a gift the value is excluded from your estate for inheritance tax purposes; however the gift has to be 'without reservation'; in other words for an investment property you have to give up the right to any rental income and for your own home you cannot live there rent free.
Inland Revenue rules are complex and you should discuss such matters in detail with a solicitor.
6. Do I need to change my Will if names and addresses of my beneficiaries change, or if I move?
Generally no. However if you leave a specific legacy, eg a second home, to a particular person then remember to update your Will if that asset is sold (as otherwise that beneficiary may get nothing) We advise that it is better to leave specific sums of money and then the rest of your estate in shares without specifying the assets. That prevents the gift 'lapsing'. It is recommended that you should review your Will every 2 years or so in any event.
7. I don't want to leave my half share of my property or investment to my coowner. Can I deal with that under the Will?
Where there is a jointly held investment such as a joint bank account the bank will transfer that investment automatically to the surviving owner on production of the death certificate. The bank doesn't look at your intentions in the Will. If you don't want that to happen then divide the joint account into separate accounts in your lifetime.
With property you can leave your share under the Will. You must however ensure you own a specific share by ensuring the property is held as Tenants in Common. This involves sending a Notice (called a Notice of Severance) to the other owner. After the Notice is served you and your co-owner will hold the property as 'tenants in common'-'tenants' means the same as 'owners'.
Remember service of this Notice cuts both ways. If your co-owner dies you would not be the sole owner of the property
8. I can't come to the office to sign the Will. Who can be my witnesses?
We will send out instructions with the Will in that case. However no responsibility for the correct execution of the Will can be assumed unless you return it to us for checking. The general rule is that no beneficiary (or spouse or civil partner of beneficiary) can be a witness. Both witnesses must be there when you sign and you must be there when they sign (in each others presence)
9. Can my beneficiaries be my executors?
Yes, and indeed the most frequent form of Will is the appointment of your sole beneficiary as executor. It is important that the executors you name are likely to be businesslike and will get on with any co executors. It is not recommended that a business partner be an executor or anyone else who may have a conflict between their own interests and the efficient administration of the estate
Where money will be held in trust (e.g. for children) then 2 trustees at least should be appointed.
If a close and trusted friend or relative is chosen as a trustee then it is common to leave them a legacy, according to the amount of work and level of responsibility.
Often there is a need for an independent executor in case the beneficiaries are likely to argue or there is no one who would fulfill that role. We would be happy to appoint a member of Solicitors First LLP as executor in your Will. Solicitors First carry Professional Indemnity insurance to a level of £3million
10. Is there a difference between executors and trustees?
Generally executors make the practical arrangements and trustees make investment decisions and decide how to distribute the estate (when they have discretion to do so). In most cases the same people are appointed executors and trustees.
11. For tax purposes I want to leave my share in the house to my children -my wife agrees to this- but I don't want them to force her to sell. Can the Will protect her interests?
Unfortunately, no. If there is a clause giving the surviving spouse/partner right to live in the house rent free with no sale to take place without his or her consent this amounts to giving the surviving spouse/partner what is known as an interest in possession. In other words on her death the wife will be taxed as if she owned the house outright and therefore the house may as well have been transferred to her under the Will. If the share in the house is left to the children then there is no obligation on the wife to pay a market rent for occupying their share, but she cannot stop them selling their share.
12. I have 2 adult sons both in their 30s. I want to treat them fairly but the younger one has a drug habit. How can I provide for him?
This is where a discretionary trust comes in. You could appoint your older son and a member of this firm as your executors. Half your estate is given to your older son outright. The other half is held in discretionary trusts.
In brief this means the discretionary half('the Trust Fund') is used for the benefit of your younger son as well as other family members, for example grandchildren. Your trustees have complete discretion over which family members to benefit, how much and when.
The testator is invited to write a letter over what s/he wants to happen with the Trust Fund. For example a flat may be bought for the younger son's occupation although the purchase will be in the name of the Trustees. The Trustees can be invited to close the Fund and distribute as and when the younger son settles down and is no longer in a dependent state. We can help you with the letter of wishes.
A discretionary trust can also be used where there is a children's trust, i.e. the Trust Fund is distributed when the youngest child attains 21/25.
A letter of wishes can deal with the Testator's views over whether the children should be educated privately and if any school fees should come out of the individual child's share when the Trust closes. Your may however wish to discuss such a proposal with your Tax advisor as the Trust will be subject to tax and receives no reliefs
14. Any general IHT saving tips?
We would wish to tailor any advice to the individual client's profile.
You should note we do not give tax advise
However here are some general tips:
- Make use of annual allowances - £3,000 (2010), and if you have not used up last year's allowance then you can spend £6,000 without it counting back into your estate.
- There is a 'normal expenditure out of income' exemption. In addition to the annual allowance you can pay bills directly e g the grandchildren's school fees and where the payment comes out of income rather than capital it will not be counted back.
- Give away as much as you can afford. Seven years after making a gift its value is taken out of your estate (provided you do not reserve a benefit
Please remember the most important thing is to provide for the comfort and independence of the surviving spouse or partner. We cannot lead our lives around avoiding tax.
lasting Powers of Attorney
This is a complex area because of changes made by the Mental Capacity Act 2005. The Court of Protection’s own Guidance is nearly 40 pages long. In simple terms you can appoint a person or persons known now as Attorneys or Deputies to look after either your property and affairs or your personal welfare or both.
The forms for doing this are complex and the rules less than straightforward. Unfortunately it does take a significant amount of time and resources to appoint your Deputy or Attorney.
Our fees depend upon the nature of the application i.e. whether you are appointing an Attorney initially or whether you are someone seeking to apply to be a Deputy for someone unable to manage their affairs but they are likely to be in the order of £750.00