Wills and Probate (What you need to know?)
Having the foresight to prepare your will and probate (if relevant) will protect your family and yourself from any heartache in the future. It will ensure you have peace of mind now that your affairs will be dealt according to your wishes and in your best interests by those who you trust.
Once you have read in detail our posts on How to Write a will and Understand what’s involved in probate, we thought that this would give you a summary on the key points to remember about wills and probate.
Key Takeways about probate
- Probate may be required if the estate of the deceased is valued at more than £5,000 (excluding land and property).
- Probate is needed if no will was left by the deceased.
- Some Banks or Building Societies may ask for a probate to release funds regardless of the value of the estate.
- If the deceased has a living partner (civil partnership) or spouse, and assets and accounts were in joint names then probate may not be needed.
- There are two different types of probates: If a will is in place then you can apply for a ‘Grant of probate’, if there was no will then it’s referred to as applying for a ‘Grant/Letter of Administration’.
- Without a will, then the ‘Rules of Testacy’ may apply to define the beneficiary(ies) as well as those who are unable to make a claim. Though if a complainant feels it doesn’t taken into account their relationship to the deceased or previous situation, they can apply to the Court.
- Don’t assume that if someone is co-habiting with you, they will automatically be entitled to your assets if you don’t have a will.
- If there is no will and the deceased didn’t have blood relatives, then the estate could go to the government.
- If the beneficiary is a charity then probate may not be needed and these gifts may be exempt from Inheritance Tax.
- The cost of probate varies according to a sliding scale of the value of the estate; No fees incurred if the value of the estate is £50,000 though fees can rise to £20,000 for an estate worth £2 million.
- It can be costly to apply for probate through the Courts, so speak with a Solicitor about minimising these costs when writing your will; explore Gifts, Trusts, Insurance Policies and Inheritance Tax.
Key Takeaways about wills
- Writing a will protects your assets and ensures they are administered according to your wishes. Without it, the ‘Intestacy Laws of the State’ make these decisions.
- Consider if any beneficiaries of the will may die before yourself, so you may wish to consider how this will be re-allocated.
- If a beneficiary is under 18 years, consider who will be the Legal Guardian of their assets to be responsible for ensuring they are released at a particular age or event.
- If you wish to include anything for step-children, then name them in your will as the Law does not automatically consider them as ‘children’.
- Consider Trusts, if either your partner or spouse has children. This ensures both of your wills are followed independently and you can both support each other (property or income) if either one passes away.
- You can appoint an Executor, Administer or Solicitor to administer your will.
- Be careful with ‘Do It Yourself Last will and Testimony’ as they must be legally valid and errors can be made which do not comply with the wills Act 1837.
- Understand the importance of Inheritance Tax when writing your will as it could lead to cost benefits and not dilute your estate for your beneficiaries.
- Before your will is administered, the Executor will take into account debts and taxes to be paid.
- If you wish to update your will and there are small changes, then it still needs to be witnessed.
- If anyone decides to contest your will, claims can be made by beneficiaries or anyone who feels they have been excluded. Claims can fall under grounds of mental capacity, lack of due execution, lack of knowledge, fraud, coercion or against the conduct of the Executor(s).
- There is a time limit applied when contesting a will if probate is involved, though no time frame for fraud – refer to Limitations Act 1980 or take legal advice.
- Consider discussing a Power of Attorney at the same time as writing your will as don’t make any assumptions that your spouse or civil partner will be able to manage your financial affairs and take care of your health and well-being, if you are no longer deemed to have mental capacity. You can only appoint a Power of Attorney whilst you are of sound mind.
Key Terms for wills and probate
- Administrator: Name of the person who takes on the responsibility of managing the will if the Executor revokes responsibility.
- Intestate: The name of the person who is deceased and left no will.
- Beneficiary: Named in the will for receiving any assets or income from the deceased.
- Executor: Carries and administers the wishes outlined in the will.
- Minor: Beneficiary under the age of 18 years
- Codicils: Minor amendments made to your will.
- Grant of probate: Apply for this when there is will is in place and probate is needed.
- PA1 Form: probate Form.
- Letters /Grants of Administration: Apply for this probate when there is no will in place.