A person’s will is an important document yet at least 40% of the UK’s adult population do not have one. The law governing wills is complex but that does not mean that it is expensive or difficult to have a will drawn up, which will give you peace of mind and clarify your wishes for family, friends and others. If there are mistakes in your will it could be invalid or may result in legal costs later on.
To make a legally valid will, you must:
- make it voluntarily
- be of sound mind
- be at least 18
- make the will in writing
- sign the document in the presence of two adult witnesses who should each also sign the document in your presence
It is also sensible to date the will. It should be noted that witnesses and their spouses cannot be beneficiaries under the will. You should mention in the will who will be your executors and let them know where the will is kept.
If there is any doubt, or potential for dispute as to your mental competence, you should get a doctor’s confirmation of your capacity to make the will and include it with your will.
Why you should have a will
A will is a legal document setting out how you want your possessions and assets, known as your estate, distributed after you die. It can also include express preferences about what happens to you after you die, for example, funeral and burial/cremation wishes, or the care of children and pets. It may also be possible to reduce the amount of inheritance tax payable if advice is sought when making a will.
What happens if you do not have a will?
When someone dies without leaving a valid will, known as dying intestate, it can cause difficulties for family left behind who may already be stressed at the bereavement. It can cause disagreements between siblings and blood/step relatives. There are rules of intestacy which will allocate the money, property and possession of someone dying without a will, for example, unmarried partners cannot inherit from each other without a valid will.
Choosing your executor
Your executors have the legal and administrative task of sorting out your assets and debts after you die and making sure that your wishes as outlined in the will are upheld. You should ensure your chosen executor or executors are competent, willing and able to carry out this important role.
Choosing your beneficiaries
You can designate anyone as a beneficiary and distribute your assets in any way you like, however if you do not provide for your family and dependents, your will may be contested and your hard-earned assets used on litigation fees.
You also should consider the effects that an inheritance may have on your beneficiaries. In some cases, a testamentary trust can sidestep potential taxation problems, so it’s important that you get specific advice about your situation.
Updating your will
You should review your will regularly and certainly after any major life event such as getting married, separated or divorced; moving house; having a child; or if the executor of the will dies.
You cannot amend your will but you can make an official alteration known as a codicil, which needs to be signed and witnessed as above. There is no limit on the number of codicils you can add to a will however usually if will be simpler and clearer to make a new will that explains that it revokes all earlier wills and codicils.
Challenging a will
There are strict time limits for challenging a will and it is advisable to seek legal advice. The usual reasons for challenging a will are:
- You believe the will is invalid
- You believe you have not been adequately provided for in the will
If you are an eligible person and have been left out of a will, or have been unfairly treated in terms of the amount of your inheritance, you may be able to make a claim against the estate. We can advise you in this regard.
You can challenge a will if you believe that the will is a forgery or if the person lacked the mental capacity to make it. You can also challenge a will if you believe that undue influence was brought to bear upon the deceased or if there was fraud involved.
There is no one answer about how to prepare your will – it depends on your assets, your circumstances and who your beneficiaries will be. We can assist you in tailoring a legally binding will that makes your wishes clear, avoids confusion and minimises conflict amongst your loved ones.
SRA TRANSPARENCY RULES (Wills)
Single Will £220 +VAT
Double Will £350 +VAT
Codicil £125 +VAT
Documents of any beneficiaries and executors, also bring a form of identification, for example: photographic driving license or passport.
SRA TRANSPARENCY RULES (Probate)
Fact Sheet on Probate Introduction
We can help you through the difficult process of obtaining a Grant of Representation on your behalf to deal with the estate of the deceased including, where necessary, liaising with HMC as regards inheritance tax. If you wish, will also undertake the collecting and distributing assets.
What are our charges our fees cover all of the work required to complete obtaining of a Grant of Representation to deal with the estate of the deceased whether that person died testate (having made a Will) or intestate (not having made a Will) and whether the estate is taxable or non-taxable. Our fees (also known as profit costs) are calculated at a rate of £250.00 plus VAT per hour for Mr Robert O’Hara and £350 plus Vat per hour for Mr Kevin O’Hara. In addition, we make a charge of £40 plus VAT for each electronic money transfer carried out.
The eventual charge which we make will depend on a number of factors including the following:
- Whether or not there is a valid Will
- Whether or not there is more than property in the estate
- The number of bank or building society accounts or other assets in the estate we will have to deal with
- The number of beneficiaries we will have to deal with
- Whether or not inheritance tax is payable on the estate
- Whether or not you will need to submit a full account to HMRC for Inheritance Tax purposes
- Whether or not there any disputes from beneficiaries on division of assets. If any significant disputes arise, we may have to advise you to go to see another solicitor who deals with probate disputes
- Whether or not there are any claims made against the estate NH/Admin‐SRA‐Probate.
- Take your instructions and give you initial advice
- Consider information given by you concerning assets and liabilities of the estate
- Advising you on potential Inheritance Tax liability and how you can best meet the same
- Writing to banks, building societies and others for valuations of the assets of the estate
- Upon receiving the valuations, preparing the necessary Inheritance Tax forms and also preparing the Grant application form
- Sending you the Grant papers and Inheritance Tax forms for approval and signing
- Upon receipt of the signed forms lodging the same with HMRC and the Probate Registry and paying the Inheritance Tax and probate court fees
- Advertising for creditors upon receipt of the Grant of Representation if you so wish. NH/Admin‐SRA‐Probate.
- Finalising estate accounts and agreeing these with you and with the beneficiaries
- Distributing the estate in accordance with the agreed accounts.
- Profit costs 3% of the Estate Plus vat
- Electronic money transfer fees including VAT: £48.00
- Probate fees including copy grants: £158.00
In addition to our fees, we also have to charge you for disbursements (being costs related to your matter that are payable to third parties). The main ones are probate application fees currently set at £155 per case, swearing of oath fees of between £5 and £10 per executor and advertisement fees of around £150 payable to the London Gazette and the local newspaper to help protect you against unexpected claims from unknown creditors. We deal with payment of disbursements on your behalf to ensure a smoother process. An additional £1 each is payable for extra copies of the Grant of Representation. Please note that dealing with the sale or transfer of any property in the estate is not included. Additionally, we cannot deal with the distribution of any assets situated outside England and Wales. At the end of this note we will be providing for illustration purposes only an explanation of what you might expect to pay on an average case. If you would like a full case specific estimate, please contact Mr Robert O’Hara who will be able to provide you with the same.
How long will probate take? How long it will take before we can complete the administration of the estate will largely depend on the factors mentioned in section 1 above. On average, a relatively uncomplicated case can take between 2 to 5 months. Typically, obtaining the Grant of Probate can take 2 to 3 months. Collecting assets then follows, which can take between 4 to 6 weeks. Once this has been done, we can then distribute the assets which normally takes between 2 to 4 weeks.
What are the main stages of the probate process? The precise stages involved in the obtaining of probate and dealing with the estate vary according to the circumstances. However, the key stages will normally be as follows:
Lodging the Grant of Representation once issued with banks and building societies and others to collect assets in the estate
Inheritance Tax What is Inheritance Tax? This is the tax payable only post-death based on the valuation of the estate. Almost all estates underneath the nil rate band (currently £325,000) will not incur Inheritance Tax. Sometimes, estates far above £1 million will still be exempt for various reasons. If you would like to obtain an estimate of the inheritance tax payable in your specific case, you can try the online Inheritance Tax calculator of HMRC which can be viewed here www.gov.uk/inheritance-tax-calculator Please note that normally the Inheritance Tax has to be obtained before the Grant of Representation is obtained which can be difficult as often you will need the Grant of Representation in order to release assets of the estate. Having said that, many banks and building societies will agree to give advance on estate proceeds to pay the Inheritance Tax before the Grant of Representation is issued. Alternatively, you may be able to pay a 10% proportion of the Inheritance Tax bill with the balance normally payable once the Grant of Representation has been issued.
Illustration We set out below a costs estimate for a standard probate case involving an estate of £500,000 where Inheritance Tax is not payable and with no significant complications.