Inheritance Law, Wills and Probate
Inheritance law deals with wills, probate and the administration of estates. The laws relating to inheritance govern the passing on of property, debts, and obligations upon the death of an individual. These are the rules which will apply to making a will and putting into effect the wishes of a person when they die. They are also the rules which govern the distribution of a persons estate if they die without making a will.
Inheritance law deals with wills, probate and the administration of estates. It governs the passing on of property, debts, and obligations upon the death of an individual. It contains the rules which apply to making a will and putting into effect the wishes which are expressed in a deceased’s will.
A person who dies with a will is said to have died ‘testate’, and is called the ‘testator’. A person who dies without making a valid will is said to have died ‘intestate’. If a person dies leaving a valid will, the property comprised in the deceased’s estate is distributed under the terms of the will. If there is no will, the property is distributed in accordance with the statutory order laid down in the Intestacy Rules.
A deceased’s ‘estate’ will include all solely owned property, plus any and all other property interests that do not pass to somebody else by operation of the law. Such would include property held as a joint tenant and property in which the deceased held only a life interest.
Should you make a will?
If you have minor children, definitely. If not, probably. It depends upon whether your personal wishes are in line with the intestacy rules. For most people they are not.
These rules have not kept pace with modern lifestyles, and are unlikely to reflect exactly what most people wish to happen to their property.
Furthermore, a will can give directions for the care of young children, it may save inheritance tax, and will appoint those who you wish to administer your affairs on your death.
In many cases, it is most important to make a will. If a married couple with children do not make a will, a surviving spouse will only receive the first £250,000 and the balance of the estate will go to the children of a previous relationship or other relatives. This can cause real difficulties, and will often leave a second wife or husband without proper provision.
A couple may have lived together for many years as husband and wife, but without marrying. In these circumstances, the intestacy rules make no provision for the surviving partner. This will leave the surviving partner with either nothing or the alternative of legal fees in making a claim against the estate.
Couples with dependent children should give thought to what happens if they are both killed at the same time in an accident. Single parents should consider what will happen to their children if they die. Anyone with parental responsibility can appoint in their will another person to act as guardian to children. If there is no will, the issue of guardianship would have to be decided by the court, and the guardian appointed could not be the person the deceased would wish for.
Just as important is financial support for the children and providing money for the guardian’s expenses.
If you own a business and want it to continue after your death, provision for this can be made in a will. If that is not done, the business could be sold on your death and all employees would lose their jobs. If the business is a private limited company, a will can determine what happens to your shares on your death.
When a house which is subject to a mortgage is given by will without any provision for the mortgage to be repaid, then the person receiving the house is responsible for the mortgage payments. The lender could call in the mortgage, resulting in the house having to be sold. A will would make provision for repayment of the mortgage.
By making a will, you can avoid paying unnecessary inheritance tax.
There are a number of ways to go about making a will, and which is chosen should depend partly upon the complexity and size of the estate. For a simple family will there is really no reason, in most cases, why this can not be dealt with at home. For more complex wills, possibly creating trusts, and with particular tax avoidance clauses, specialist help and advice should be taken.
How do you go about making your will?
There are a number of alternatives:
- The do-it-yourself will. There is probably no reason why anybody can not prepare a simple will for themselves. Will kits with full instructions are available to help for a few pounds. LawZone have a number of will precedents which can be downloaded for a few pounds, and contain all necessary information to make a straightforward will.
- Solicitors. Most solicitors firms will prepare a will for you, but it is going to cost. Where the estate is large and complex and perhaps involves a number of trusts, serious consideration should be given to instructing a specialist solicitor. However, you should be aware that the cost may be considerable, as most solicitors will charge around £150-£200 an hour.
- Specialist will writing services. There are a number of specialist paralegal firms who prepare wills. As a consequence, they have very considerable experience and expertise, and will draft a will for often less than £100. However, be warned. They will try to talk you into appointing themselves as executors of your estate. Never agree to this.
Our Inheritance Law department contains lots of useful information on making a will. We also explain the basic procedure for obtaining a grant of probate or letters of administration. Information is provided on disputing or contesting a will and professional help is available to advise.
Inheritance Law Articles and Blogs
A Lasting Power Of Attorney unlike a general power remains effective even if the donor loses his or her mental capacity. There are two types and separate LPAs can be granted by a donor to deal with each of his financial and his personal affairs. Unlike its...read more
To pass on your estate when you die you must make a Will which must be properly executed. It has to be written, dated and signed in the presence of witnesses. The Law is quite clear in that. Sometimes however a person facing imminent death may not have made a Will or...read more
A joint Will is a single Will made by two people which deals with the estates of both of them. Usually it will leave everything to the other on the first death and then to agreed beneficiaries on the death of the survivor.Mutual or Mirror wills are where the parties...read more
Most people when making their will include a statement of their wishes as to what they would like to be done with their 'mortal remains'. They might say that they wish to be buried, cremated, or even sometimes buried at sea or to have their ashes scattered at a...read more
It's time to write a new will if you're experiencing a big change in your life, such as moving, getting married or divorced, moving in with a new partner, or bringing a new baby into the family. Your will should be tailored to your current family and financial...read more
At a conservative estimate, there is around £15 billion of assets left in the estates of deceased people which remains unclaimed. There may be a number of reasons for this and why it has not been possible for money to be paid to those entitled under a Will. Amongst...read more
Nasty shocks can be in store for cohabitees when one of the partners dies without making a will. The late partner’s estate will not automatically pass to them in the absence of a will made in favour of the survivor. The rules of intestacy will be applied, which will...read more
What would happen if you became unable to understand and deal with your business and financial affairs through ill-health or incapacity? How would you know that someone could be appointed to step in and manage your affairs for you? Who is there to protect and promote...read more
The Inheritance Act (or the Inheritance (Provision for Family and Dependents) Act 1975, to give it its full title) was passed to help spouses, children, civil partners, cohabitees and other surviving dependents who have been left to cope without sufficient money to...read more
A power of attorney is simply a written confirmation of an agreed arrangement in which one person ('the donor') gives another person ('the attorney') authority to act on their behalf and in their name. The power of attorney confers upon the attorney an authority to do...read more
Inheritance tax is payable when a person’s estate (their property and possessions) is worth more than £325,000 when they die. Inheritance Tax of 40% is payable on anything over this amount. The rate may be reduced to 36% if more than 10% of the estate is left to...read more
Parents with young children should always consider who will look after their children if they are unable to do so themselves and appoint a Guardian for their children to ensure that they are looked after by a suitable person in the event of their death or serious...read more