FAQ's
Read through our selection of helpful FAQs and Case Studies below. In order to help you understand more about making a will and our estate planning services. Also, you might like to visit our News page where you will find lots of helpful articles relating to all aspects of estate planning.
What is a Will?
A Will is a legal document that allows you to specify who should benefit from your property, money and possessions after you’ve died. It’s very important that the wording used in your Will is clear and legally effective.
Do I need a Will?
If you die without a Will in England or Wales the law will decide who gets what. If you have no living family members, all your possessions and property will go to the Crown.
What are Executors of a Will?
Executors are the people you name in your Will to carry out your wishes after you die.
They will be responsible for all aspects of sorting your affairs after you’ve passed away such as notifying people that you have died, arranging your funeral, dealing with any tax bills, paying debt, collating information about your assets and liabilities and then distributing your estate to your chosen beneficiaries.
What If I have Young Children?
When creating a Will, one of the first thing to consider is Guardianship of your children. If you currently have Parental Responsibility over your children and they are under 18 years old, then you can include in your Will the appointment of a Guardian to look after your children whilst they are under 18 years old.
This takes effect only if there is no one else with parental responsibility over your children when you pass away. The importance of appointing a Guardian is one of the main reasons why parents make sure they have a valid Will in place.
You can also include your children as beneficiaries in your Will even though they are very young. When this occurs it is sensible to consider the age you would like your children to reach before being able to access their inheritance, typical ages are 18, 21 or 25. Whilst the child is under that age then their inheritance is managed on their behalf by people called Trustees. These are people that can also be appointed in your will.
Where Do I Keep My Will Documents?
We recommend you store your documents with an approved third party. We work with National Will Safe.
Can an Executor of a Will also be a beneficiary?
Yes they can. There is no reason why any family member, friend or anyone else benefiting from your Will cannot be an Executor, as long as they are over 18 years old. Perhaps a more important question to ask is, are they willing and able to be an Executor?
Can any of my beneficiaries be a witness when I am making my Will?
No. A beneficiary in your Will should not be a witness to you signing it. The spouse or civil partner of the beneficiary should not be a witness either. If they do witness your Will, they will be disinherited.
What happens to my Will when I die?
We recommend that you tell your Executor where your Will is kept. You may want to give them a copy of your Will whilst you are able. When you die, your Executor will need to locate your original Will.
Can my Will be challenged?
Yes - all Wills can be challenged. Nothing can prevent someone from trying to invalidate it. The real question is 'Can my Will be successfully challenged?' and this really does depend. If your Will includes your nearest relatives and dependents such as your husband, wife or civil partner and your children, there is little reason why your Will should be challenged. But, if you exclude someone who might expect to benefit from your Will, or there is a suggestion that you do not have mental capacity or have been influenced or coerced whilst making your Will, then there is a real possibility your Will could be challenged.
You can try to avoid any disharmony by talking to your family and loved ones about your Will. This is particularly important if you are going to exclude them. This prevents questions about your motivation after you've died. Alternatively, you could write a letter to your Executors which sets out the reasons why you've excluded a particular person from the Will. This letter can be stored with your Will.
Can I use my Will to protect against care fees?
It's possible. If you are a couple, you may be able to protect all or part of your Estate by using a Trust in your Will. It is a specialised area and is vital you get professional Will Writing advice to ensure it is appropriate for your circumstances.
Case Studies
Case Study A – Losing capacity
John contacted us regarding his elderly, unmarried Aunt Elizabeth. He advised Social Services had placed her in a care home, as she was no longer able to care for herself at home.
John was angry at the apparent high handed attitude of the Local Authority as he told us he was the next of kin and couldn’t understand what right the Local Authority had in interfering in her affairs.
We had to explain that the Local Authority has statutory duties of care to their elderly residents. John rarely visited his aunt, so it was no surprise that he was out of touch with developments.
Unless his aunt had taken action, whilst she was fit and well and had made a Lasting Power of Attorney to cover the possibility that one day she might be in the situation where she couldn’t manage her own affairs, then the Local Authority were safeguarding her interests and the only solution was for John to apply to the Court of Protection to become her Deputy.
This can take at least 6 months, during which time John’s aunt’s affairs were in a state of limbo.
Another couple, Bob and Jilly, had addressed such issues, whilst they were both fit to do so. Sadly, Jilly was now suffering from dementia and Bobl had cancer. It seemed likely that Bob might die before Jilly.
Some years before, Bob & Jilly had visited us and changed the way that they owned their house, instead of the survivor owning all the house after the first of them died (this is called a Joint tenancy), they now owned the house as Tenants in Common.
This meant they each owned a distinct half share in the house, which instead of going outright to the survivor of them, went in accordance with their Wills, which was drawn up as part of their sensible asset preservation planning.
The Wills gave the survivor of them the right to live in the house until death or earlier if the survivor no longer permanently lived there.
Sadly Bob died before Jilly, who then went into a care home. The house was sold by their two sons, who had been appointed executors of Bob’s Will and the attorneys of Jilly, under a Lasting Power of Attorney, which she made whilst fit and mentally capable.
What happened to the sale proceeds of the house?
Well Bob’s half share passed under his will to his two sons. Jilly was in care and self-funding her care costs, so her sons made sure she received all the benefits she was entitled to and taking into account her State and occupational pension looked at the shortfall in her fees.
They then took financial advice and purchased an annuity based on Jilly’s life expectancy. This annuity made up the difference in her care costs for the rest of her life.
So with good planning, half the value of the house was preserved against care costs and a large proportion of Jilly’s half share was also preserved, to pass onto her sons and their families on her death.
The moral of these two stories is it’s never too early to take good specialist legal advice and put it into action.
Case Study B – Updating a Will
We were instructed by Kath (56), to draft an updated Will for her.
She had had a Will before, but then she divorced. The divorce meant the old Will was no longer valid and therefore she decided to make an updated Will. Kath was spurred on to do this by the death of her younger sister who died without leaving a Will. Dealing with her sister’s estate without a Will in place made a difficult and painful time for Kath even worse and Kath didn’t want her children to have to deal with a similar situation when she eventually died.
Kath wanted to ensure that her assets passed to her children, her family and friends appropriately and as she would wish and also that they were not left with any issues to deal with following her death.
We spoke to Kath on the phone to talk with her, discuss her options and provide some initial advice and ideas about what she might want to include with her Will. We then visited her home to talk with her further and confirm her instructions. We discussed her life and what she wanted to happen following her death. Following this appointment, Kath changed her mind about a couple of points and had made firm decisions about certain others. We confirmed these further instructions with Kath over the telephone and then prepared updated documents for her.
The draft copy of the Will was provided to Kath, she confirmed she was happy with the draft so we arranged to return to her home to supervise the signing of the Will. The Will is now safely and securely stored and Kath has a copy at home.
Kath said the major factor that persuaded her to instruct us was the fact they would visit her at home and fit in with her busy schedule and she did not have to make an appointment at the office. She said this made things so much easier for her.
Kath also said that the whole process was made easy for her – she saw the same person for each appointment who was friendly and efficient, each appointment and telephone call was followed-up with an e-mail and all documents were sent to her very quickly.
Kath said that Mendy and Watt were “helpful, clear, detailed and easy to chat with” and we were “efficient, well organised and friendly”. Kath has already recommended us to her friends and family.
We charged Kath a fixed fee for her Will which was agreed at the outset so that she knew exactly the cost of the whole process. This fixed fee included all home visits, telephone calls and the drafting, and signing.
Case Study C – Lifetime Trust
Mrs Jones was 82 years of age and had been married twice. She was in good health, both physically and mentally. Her first husband passed away and she remarried 6 years later.
As often happens, one of her children (from her first marriage), Katy, couldn’t accept that her mother had “moved on”. This this led to a total breakdown in the relationship and things got worse with sustained financial and emotional abuse. Mrs Jones was under substantial pressure from her but didn’t feel able to raise her concerns with outside agencies.
Mrs Jones owned her own house and some money in the bank.
We discussed how a Lifetime Trust can be used as a shelter or harbour for assets. It puts assets outside of the reach for those not appointed by Mrs Jones (the Settlor) as Trustees. It also makes administration of the estate after the Settlors death easier.
Her new husband was protected for his lifetime and had a roof over his head. Other potential benefits include the protection of assets, so that they ultimately pass to the nominated beneficiaries. Finally, but of great importance was that if assets remain in Trust for over 6 years, it is almost certain that any challenge brought by Katy, after her mother’s death, would fail.
The Trustees were people that had a good understanding of the situation that she was in. They would defend the Trust, should Katy seek to undermine the arrangement later. This was good estate planning, tailored to the individual requirements of the client and brought Mrs Jones peace of mind.