Wills & Probate FAQs

This FAQ is designed to be helpful in answering general questions about making a Will and Probate. It is not a substitute for legal advice regarding your particular situation. It may not cover important issues that affect you and you may wish to consult with a Pearson Solicitors solicitor on 0161 785 3500.

Why make a Will?

Choose beneficiaries 

Everyone who has property and who cares about what will happen to it on his or her death should make a will. If you die without one, your money and possessions may be distributed to people you do not believe should inherit them.

By making a will, the testator (the person who makes a will) will be able to determine the way in which his or her assets will be dealt with after death. It will also be possible to ensure that the people he or she wishes to benefit will do so, and in the manner intended.

Avoid intestacy rules 

If a person dies without a will (known as dying 'intestate') certain statutory rules govern the division of the estate and how it is to be dealt with after the death.

These rules will often operate to frustrate a person’s wishes and lead to unsatisfactory and even disastrous results, especially for those with business or farming interests.

It is not the case, as commonly thought, that if a person dies without a will the entire estate will necessarily pass automatically to the spouse. If he or she is survived by a spouse and children and the value of the estate exceeds (at present) £250,000, the children (legitimate or illegitimate) will be entitled to share in part of the estate. This is one common instance where the estate can pass to people the deceased did not intend to benefit.

If you are living with someone but not married to them then it is important you make a Will as otherwise they may get nothing.

Inheritance Tax Planning 

Timely action may save your heirs from having to pay large amounts of tax. We may advise you to use a trust, either to save Inheritance Tax or provide an element of control in special cases, such as where a beneficiary is unable to look after his or her own affairs.

Further questions for people considering making a Will or amending an existing Will.

How often should I update my Will? 

It is usually recommended to review your Will at least every five years or whenever your circumstances change e.g. on marriage, divorce/separation, having children, or purchasing a house.

Where should I store my Will? 

Your Will needs to be kept safely. Pearson Solicitors can store your Will at no cost and give you a copy to keep at home. We are also a member of the Certainty National Registry of Wills.

We will look after your Will safely, without cost and you will make every effort to look after the copy.

However, as time passes and circumstances change there is a risk that once you have died your remaining family may be unable to locate your Will and they may be unaware that the original is here. Wills are lost, misplaced and destroyed through accidental or malicious actions, the results of which can be devastating and traumatic for your family. This risk applies to everyone but you can now safeguard the Will location and protect your family further by agreeing to have your will centrally and securely registered with us. Once registered your Will can always be found at the appropriate time and in the right circumstances.

What are executors? 

These are the people appointed by the testator under the will to administer the estate. They will also usually be appointed to act as trustees of any trust arising under the will.

It is important that the testator chooses people who are competent to fulfil this role and to deal sensibly with the administration of the estate and the beneficiaries.

They are usually members of the family, close personal friends or professional advisers. It is sensible in most case to have at least two executors.

Can I appoint Guardians in my Will? 

You may want to appoint one or two people to act as guardian(s) for children under 18.  The appointment will usually only apply if you and the child’s other parent are both dead.  The position may be different if you are a single parent and this can be discussed with a solicitor at your appointment.  Guardianship involves a lot of responsibility and you should ask people to agree to act before appointing them.

Will my estate have to pay inheritance tax? 

The inheritance tax threshold ('nil rate band') for the tax yr 2013/2014 is currently £325,000.

For deaths on or after 9 October 2007, on the death of a surviving spouse or civil partner, any proportion of the unused nil rate band from the estate of the first spouse/civil partner to die can be applied to the nil rate band available on the death of the surviving spouse or civil partner.

Eg. Mr A dies in August 2007 (when the nil rate band was £300,000) leaving £150,000 to his son and the rest of his estate to Mrs A. 50% of the nil rate band is added to the nil rate band of Mrs A on her death in August 2010 when the nil rate band was £325,000 i.e. £325,000 plus £162,500=£487,500.

Whether inheritance tax is payable also depends on the value of any gifts you make and which people benefit from your estate. There may be reliefs available in respect of your business property or agricultural property. Our specialist solicitors can discuss with you how inheritance tax will affect your estate. They will be able to advise you of your options for mitigating the inheritance tax liability on your death by careful drafting of your Will and on the possibility of lifetime inheritance tax planning.

Questions regarding Probate

Who deals with the administration of the estate? 

If the person who has died has left a Will, they will usually have appointed executors who are responsible for administering the estate. This involves obtaining the monies due to the estate, paying any liabilities and distributing the estate among the beneficiaries named in the Will.

What is a Grant of Probate? 

Executors may need to apply for a Grant of Probate to be able to obtain the monies due to the estate. This is an official document issued by the Probate Registry and is evidence of the executors’ authority to administer the estate.

What if there is no Will? 

If the person who has died has not made a Will, their estate will be divided in accordance with the intestacy rules. These rules specify which relatives are entitled to inherit the estate. Anyone who is entitled to inherit the estate will be able to apply for a Grant of Letters of Administration from the Probate Registry authorising them to deal with the estate.

When is a Grant of Representation required? 

A Grant of Probate or a Grant of Letters of Administration is not always required. If the person who has died has less than £5000 in total or owned everything jointly with someone else a Grant of Representation is unlikely to be required.

Some banks are prepared to close accounts up to £25,000 without requiring a Grant of Representation but usually a Grant is required when the person who has died has a house, more than £5000, stocks/shares.

Will Inheritance tax be payable on the estate? 

The inheritance tax threshold ('nil rate band') for the tax yr 2013/2014 is currently £325,000.

For deaths on or after 9 October 2007, on the death of a surviving spouse or civil partner, any proportion of the unused nil rate band from the estate of the first spouse/civil partner to die can be applied to the nil rate band available on the death of the surviving spouse or civil partner.

Eg. Mr A dies in August 2007 (when the nil rate band was £300,000) leaving £150,000 to his son and the rest of his estate to Mrs A. 50% of the nil rate band is added to the nil rate band of Mrs A on her death in August 2010 when the nil rate band was £325,000 i.e. £325,000 plus £162,500=£487,500.

Whether inheritance tax is payable also depends on the value of any gifts the person made before they died, the value of certain trusts from which they benefited and which people benefit from their estate. There may also be reliefs available in respect of business property or agricultural property. Our specialist solicitors can discuss with you the inheritance tax implications for the estate and your options for mitigating the inheritance tax liability.

How long does it take to administer an estate? 

The length of time which the above processes will take depends on the number of assets to be dealt with.  If Inheritance Tax or other tax is payable this will also involve some delay.  It should be possible to administer a simple estate within 3 months.  Most estates should be fully administered within 12 months.  Taxation issues can however sometimes involve delay beyond 12 months.

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